Last week, both the House and Senate passed the 2012 National Defense Authorization Act (NDAA). This annual bill provides critical authorities and resources for the U.S. Department of Defense and the men and women of our Armed Forces. Due to two sections in the larger bill, which contain provisions that affirm and clarify legal authorities for waging the War on Terrorism and detaining terrorists, the 2012 NDAA has found itself the subject of an unexpected misinformation campaign that suggests these provisions could lead to the indefinite detention of U.S. citizens without due process.
The misinformation surrounding the 2012 NDAA is a result of the misinterpretation of provisions included in Sections 1021 and 1022 of the act. These provisions are an important part of the 2012 NDAA and provide vital clarity for our Armed Forces defending America around the world. Our forces have officially withdrawn from Iraq and are on a timetable for a similar drawdown in Afghanistan. However, terrorists around the world continue to plot devastating attacks against Americans.
Section 1021 of the 2012 NDAA solidifies the legal authority under which our forces continue to engage the enemy. It also provides clarity that would otherwise continue to erode as terrorists held at Guantanamo Bay challenge their detention through litigation in federal court.
The 2012 NDAA sets a clear standard that U.S. forces retain the authority to detain al Qaida and Taliban terrorists and members of associated forces who are committing acts of war against the U.S. The debate over these provisions; however, has shifted to well-intentioned concerns for our civil liberties. Unfortunately, certain outside groups, to their discredit, launched an attack based on issues that were not addressed in the legislation. They have even gone so far as to allege that a U.S. citizen could accidentally or unknowingly provide substantial support to al Qaida terrorists in committing acts of war against the U.S. Such a proposition defies any plain reading of the bill.
A large factual gap has formed between what is being said about the bill and what provisions the bill actually contains. The shared passion for our freedom has exacerbated this gap, as third-party voices like the ALCU and even some members of Congress have committed themselves to defeating controversial provisions that do not exist.
I would never support legislation that granted the government authority to indefinitely detain U.S. citizens in the U.S. without the right to challenge the legality of any such detention through a petition for habeas corpus. Nor would any judge, court, or attorney in this nation uphold such an infringement of our rights.
To be clear, Section 1021 in no way infringes upon a U.S. citizen’s right to due process.
This legislation does not make any changes to existing law as it relates to the treatment of U.S. citizens. The rules of war draw a distinct line between combatants and non-combatants. Our laws also provide a legal distinction between lawful combatants, those who wear a military uniform and abide by the Law of Armed Conflict, and unlawful combatants who seek to use the freedoms of a democratic society to their advantage. Sadly, a few of those unlawful combatants have been U.S. citizens, who took part in planning attacks against the U.S.