Senator Levin Sets the Record Straight on the NDAA

Snapshot

The NDAA Makes It Harder to Fight Terrorism

Brian Michael Jenkins

The recently signed NDAA confirms the president's authority to detain terrorists in military custody without trial. The bill's proponents consider it a boon to counterterrorism efforts but it will only hinder intelligence collection; chill information sharing among local, national, and international law enforcement agencies; and alienate the American Muslim community.

Response

A Final Word on the NDAA

Brian Michael Jenkins

Senator Carl Levin argued in these pages that the NDAA changes nothing. If that were true, there would have been no reason to pass the bill.

Senator Carl Levin. (Yuri Gripas / Courtesy Reuters)

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...