The right and wrong way to fix the NDAA


On New Year’s Eve, the president signed into law the National Defense Authorization Act for the 2012 Fiscal Year (NDAA). Within it were some very troubling provisions that address how our armed forces handle detainees. Proponents of the bill declared that America was now the “battlefield” in the war on terror, and that there may be “enemy combatants” among us that should be picked up and detained by the military without an opportunity to face charge or trial.



Americans from across the political spectrum were rightly furious and dismayed.



Though the NDAA detention provisions -- and the 2001 Authorization for the Use of Military Force (AUMF) on which they are based -- are unclear on whether Congress authorized such actions, any attempt by this or a future president to deploy the military to take custody of or indefinitely detain individuals picked up on U.S. soil would offend the very foundation of the Constitution.

Thankfully, dozens of members of Congress have introduced or co-sponsored bills to try to remedy some of the most dangerous aspects of the NDAA detention provisions. These bills seeking to “fix” the NDAA essentially break down into three categories. Let’s take a look.



First, there’s an effort to reinforce the habeas corpus rights of individuals detained in the United States, as is reflected by a bill introduced today by Representatives Landry and Rigell. Though the bill is well-intentioned, there’s one glaring problem: the NDAA did not take away anyone’s habeas corpus rights.



Habeas corpus is the right to appear before a judge, who decides whether the individual in question is being lawfully detained. The problem with the NDAA is that it seeks to codify the authority of the military to “lawfully” detain individuals suspected of terrorism “until the end of hostilities.”
Though habeas corpus serves the important function of ensuring that the government must make its case in front of a judge, under the NDAA, the government doesn’t need to prove guilt beyond a reasonable doubt in front of a jury as our Constitution typically requires; it just needs to show the judge that the individual in question was more likely than not a member or substantial supporter of al Qaeda or an “associated force.”  Bottom line: the end result could mean life behind bars in a military brig without ever being charged with a crime.



A second approach, championed by Sen. Feinstein and Rep. Garamendi, does seek to protect against indefinite detention, but only extends such protections to American citizens and Legal Permanent Residents picked up in the United States. This approach, though an admirable effort, arguably concedes to the NDAA’s proponents one of their key arguments: that the United States can be considered a “battlefield” and that there could be some among us that are enemy combatants.



As a result, even with the protections in the Feinstein/Garamendi bill, the military could still in theory be used to pick up or indefinitely detain within the United States a category of non-citizen terrorism suspects. The Constitution extends fundamental due process protections to all persons in the United States. Any approach to fixing the NDAA should be consistent with this key constitutional principle.

A third approach, put forth by Sen. Mark Udall and Rep. Adam Smith, would ensure that no one within the United States can be indefinitely detained without charge or trial, or tried by legally problematic military commissions. It also reverses an NDAA provision -- opposed by virtually every national security expert, even former Bush administration officials -- that tries to force our military to take custody of a category of foreign terrorism suspects.


The Smith/Udall bill, while far from perfect, is the best available first step towards fixing the NDAA. It makes clear that our armed forces should never be asked patrol our streets, or take custody and indefinitely detain terrorism suspects picked up on U.S. soil. As such, the Smith/Udall bill is consistent with the spirit of the Posse Comitatus Act, which counsels against deploying the military on U.S. soil for law enforcement purposes. It also reinforces core safeguards of the Constitution that provide equal protection and due process to all individuals within the United States.

In the coming weeks, Congress will yet again be debating the appropriate role for the military in counterterrorism operations. A key question will be what to do about the troubling0 detainee provisions from last year’s NDAA. Let’s hope that Congress takes the right path forward.

Rear Admiral Hutson served as the Navy's Judge Advocate General from 1997 to 2000. He recently retired as President and Dean of the University of New Hampshire School of Law.

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