The NDAA

       Recently much negative attention has been given to a law signed on December 31 by president Obama, the National Defense Authorization Act. The NDAA is an act that has been passed annually for the past several decades, outlining military priorities, policy, and spending. One section in particular in this year's version has drawn heavy criticism, a section about the right of the military to detain terror suspects. Reading some of the criticism, I was struck by how extreme some commentary was, and how little evidence many stories on the topic gave. Many articles made employed dramatic statements that were simply false, such as one Wired article titled "Senate Wants to Lock You Up Without Trial." Since then the criticism has calmed done somewhat, and the real issues surrounding the bill have come to light. The bill, as written, is constitutional and undeserving of much of the criticism directed towards it, but nevertheless raises significant questions.
       The legal issues and implications surrounding the law are extremely complex, but i'll try to give the best explanation I can. Under the laws of war, the U.S. is allowed to indefinitely hold without trial anyone captured during combat. This policy has clear justification in conventional wars; large numbers of P.O.W.s may be taken, and it is impossible and unnecessary to provide due process for everyone. In 2001, Congress authorized the use of military force against those responsible for the 9/11 attacks The supreme court ruled, in Hamdi v. Rumsfeld, that the classification of enemy combatant could be extended to American citizens captured in the war on terror, at least in the circumstances of that case, and  thus be detained indefinitely. It is important to note, however, that the court confirmed the accused's right to a Habeas Corpus challenge of his status; the accused still have methods to challenge his detention, though indirectly.
     What the text of the law specifically authorizes is "Detention under the law of war without trial until the end of the hostilities" of "A person who was a part of or substantially supported, al-Qaeda, the Taliban, or associated forces," or "any person who has committed a belligerent act or has directly supported such hostilities." The law, as written, falls within the boundaries of the laws of war, as outlined above. The powers that the law codifies were already possessed by the administration. In fact, a section a few lines down from those quoted above states "Nothing in this section is intended to limit or expand the authority of the President." Essentialy, the NDAA takes the existing understanding of the laws of war, and applies it to the "War on Terror," the current conflict against al-Qaeda, the Taliban, and other international terror organizations.
       The bill may fit within the confines of the law, but it is not without its issues. Much of the criticism was rooted in ambiguities in the language of the act, and some language could benefit from clarification. The Obama administration strongly considered vetoing the bill because of language that mandated that the military detain non-citizen terror suspects, preventing the use of the FBI and other civil law enforcement agencies which might be better suited to dealing with specific situations. More broadly, the bill raises questions about the proper role of the military in dealing with terrorism on U.S. soil; the bill makes no geographical distinctions. The most significant issue, at least to me, is whether the application of the standards of wartime is at all appropriate or even necessary. The war on terror is not a conventional war; there is no reason fighters caught could not be put on trial. If the government detains someone, they should have evidence. If the government believes their evidence is insufficient to convict someone in court, they should never have detained him in the first place, or released him when the lack of evidence became apparent. Like we discussed in class, civil liberty questions like this have no easy answers. Overly-dramatic stories based on statements not founded in facts don't help find those answers.