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 Our forces have officially withdrawn from Iraq and are on a timetable for a similar drawdown in Afghanistan.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.
On the question of whether U.S. citizens captured on the battlefield may be detained by the military in the United States, the U.S. Supreme Court held in 2004 in Hamdi v. Rumsfeld that a U.S. citizen has due process rights and the ability to challenge the legality of their detention in U.S. federal courts. The 2012 NDAA merely codifies what the U.S. Supreme Court already said: The detainee provisions in the 2012 NDAA in no way undermine a U.S. citizen’s due process or habeas rights, as some have claimed.
The 2012 NDAA also requires the secretary of defense to regularly brief Congress on which terrorist groups constitute “associated forces” to further ensure rigorous and routine oversight by our elected officials.
Section 1022 of the 2012 NDAA requires mandatory detention of foreign al Qaida terrorists and does not in any way apply to any U.S. citizens or legal residents of the U.S. Section 1022 also includes a national security waiver for the president that has absolutely nothing to do with U.S. citizens. The national security waiver for the president in Section 1022 only allows the president to determine that a foreign al Qaida terrorist should be held in civilian custody instead of military custody.
Section 1022’s use of the word “requirement” also has been misinterpreted as allowing U.S. citizens to be detained, but this provision does not in any way create this authority. This provision must be read in the context of Section 1022’s purpose, which is reflected in its title and relates solely to “military custody of foreign al Qaida terrorists.” The term “requirement” does not mean that detention of U.S. citizens is optional under this provision.
We all share an important responsibility as U.S. citizens to zealously protect our civil liberties as enshrined in the Constitution. As a member of Congress, I am always open to ways to improve our legal mechanisms for keeping America safe without compromising our civil liberties. However, Congress cannot do this effectively when people arrive at their conclusion first — that Congress has somehow shredded the Bill of Rights — and the facts second.
Rep. Tim Griffin is a freshman member of the U.S. House of Representatives from Arkansas’s Second Congressional District. He is member of the House Armed Services Committee, the House Committee on Foreign Affairs, and the House Committee on the Judiciary. He also is serving in his 16th year as an officer in the U.S. Army Reserve, Judge Advocate General’s (JAG) Corps where he holds the rank of major.