Senator Levin Sets the Record Straight on the NDAA

What the Law Does and Doesn't Do on Detention

Earlier this month, with his piece "The NDAA Makes It Harder to Fight Terrorism," Brian Michael Jenkins added to the confusion surrounding the military detention provisions in the National Defense Authorization Act by promulgating the unfounded allegation that the NDAA exposes American citizens to arbitrary arrest and indefinite detention.

The new law does no such thing.

At its core, the NDAA reaffirms already existing U.S. law on the military detention of individuals captured in the country's fight against al Qaeda. Jenkins writes, "A fair way to assess this bill would be to ask, had this law been in effect since 2001, what would it have achieved?" His answer: some 20 "jihadist terrorists," including U.S. citizens and lawful resident aliens, who are today in civilian custody would instead "be in military custody." 

The problem with Jenkins' hypothetical is that U.S. citizens and lawful resident aliens are expressly excluded from section 1022 of the NDAA. The law applies only to a narrow category of foreign al Qaeda members who participate in planning or conducting attacks against the United States and are "captured in the course of hostilities." And although section 1021 of the statute does not exclude U.S. citizens, this provision does not change existing military detention authority. The law specifically states: "Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States." In sum, neither section would have changed the outcome of any of the cases Jenkins wants to suppose.

The issue of indefinite detention arises from the capture of an enemy combatant in a war. According to the law of war, which, in the United States, dates back to the American Revolution, an enemy combatant may be held until hostilities come to an end. (See the 2004 case Hamdi v. Rumsfeld.) That did not change with the enactment of the Authorization for Use of Military Force in 2001, which authorized military operations against al Qaeda, the Taliban, and associated forces, and it did not change with the enactment of the NDAA.

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