NDAA 2013: A few comments

Posted on May 16, 2012 at 4.58 pm

Recently the initial text of the National Defense Authorization Act (NDAA) of 2013 was released.  As you no doubt recall, this is the bill whose previous version caused quite a justifiable uproar thanks to its dubious and unconstitutional treatment of indefinite detention.

Now that the new NDAA is out, the White House has released a series of objections to the bill.  This is by no means comprehensive, but I’ve got a few comments on both.

Title X, Subtitle D, Sections 1032 & 1033

This is a weird one.  1033 says that nothing in the last NDAA “shall be construed to deny the availability of the writ of habeas corpus,” even though that was pretty much what everyone construed.  But that comes right after 1032, which quotes the clause in the Constitution about suspending habeas corpus (so, you can suspend it, but you’re not?  Is that what you’re trying to say?)…and then follows that with a quote about how habeas corpus is really, really important.

Better legal scholars than I (read that as: real legal scholars) agree that this is kinda weird.

It’s worth noting that the text says that the NDAA shouldn’t be construed as denying habeas corpus “in a court ordained or established by or under Article III of the Constitution” — but the September 11 terrorist trial, for instance, is occurring in a military tribunal which does not fall under Article III.  This means that, in practice, the NDAA 2013 is saying, “If we indefinitely detain you, you should hope that we try you in a civilian court, because you’ll have rights there.  But if, as we’ve done with other terror suspects, we opt for a military tribunal, tough luck.”

Interestingly, the Obama statement does not mention indefinite detention, which is perhaps to be expected given how he said he’d veto it the last time around, and then caved, ultimately signing it on the Saturday which was New Years Eve, if I recall correctly — a move which ensured the action would get minimal news coverage.

Fortunately, Representatives Justin Amash and Adam Smith are working to at least add an amendment to guarantee that no one of any citizenship will be denied due process if captured on U.S. soil.  This doesn’t completely fix the problem, but it’s a start.

Title X, Subtitle D, Sections 1035 to 1043

These sections include a number of limitations on what can be done with detainees, and they get one of the two specific veto threats from the White House statement:

The Administration strongly objects to sections 1035-1043, which would continue and in some cases expand unwise restrictions that would constrain the flexibility that our Nation’s armed forces and counterterrorism professionals need to deal with evolving threats.

Some of the objections make sense.  For instance, I too don’t see why we need a law saying that if you were in Gitmo, and then you were released to Micronesia, you can never come to the U.S.  I don’t know why you’d want to, but hey, go for it.  The Obama administration says this provision is unnecessary and, barring any really key points to which I’m now oblivious, I agree.

Sections 1036 and 1037 prohibit the Department of Defense from using funds to transfer or release Gitmo detainees to the U.S….or to any foreign country. So essentially no one from Gitmo can be released anywhere.

In addition to objecting to these two provisions, the Administration also objects to Sections 1040 to 1042, which require stuff like telling the Senate Committee on Armed Services and the House Committee on Armed Services if detainees are captured or transferred under various circumstances.  The White House states that this “would unnecessarily complicate and potentially compromise military operations and detention practices.”

I’m all for simplicity in government five times as much as the next guy, but given the history of abuse of detainees’ rights and persons, this additional transparency might not be the worst thing.  Of course, I have no illusions that these congressional committees will use these reports to become champions of individual rights.

That said, it primarily strikes me as ridiculous that anyone in this (or, for that matter, the previous) Administration could complain about a lack of flexibility in dealing with detainees.  How much more leeway to arrest (often by mistake), hold without charge or trial, and even torture people could anyone need?

Title XII, Subtitle C, Sections 1221 & 1222

This is the bit relating to Iran, and it’s all hawk.  Section 1221 emphasizes that “that it is the policy of the United States to take all necessary measures, including military action if necessary, to prevent Iran from threatening the United States, its allies, or Iran’s neighbors with a nuclear weapon” and claims that “Iran may soon attain a nuclear weapons capability” – a lot of frankly ignorant saber rattling given that U.S. intelligence agencies say Iran is nowhere near getting a nuke.  The part about our allies, which obviously means Israel, likewise jumps the gun given that many Israeli citizens and experts are not interested in a strike on Iran.

Section 1222 requires the Secretary of Defense to submit to Congress “a plan to strengthen the presence of the U.S. 5th Fleet in the Middle East to include conducting military deployments, exercises, and other military readiness activities.” This is essentially a request for a plan for preparation for war, as it is explicitly intended to “serve as a signal to the Islamic Republic of Iran regarding the willingness of the United States to defend its national security interests.”

Now, the White House does object to these two sections, but only insofar as they attempt to “micromanage” the President’s decision-making process in regards to deploying troops and setting policy toward Iran.  These objections are not about a desire to avoid war by any stretch of the imagination.


This is a GIANT bill, and that’s all I’ve got for now.  Anyone else care to have a look and offer some commentary?

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