The NDAA Makes It Harder to Fight Terrorism

Military Custody Is Counterproductive

(Larry Downing / Courtesy Reuters)

Despite his earlier threat of a veto, President Barack Obama signed the National Defense Authorization Act (NDAA) of 2012 into law on the last day of 2011. The bill, which was sponsored by Senators Carl Levin (D-Mich.) and John McCain (R-Ariz.), had bipartisan support, passing in the Senate by 86 to 13 with one abstaining. The vote reflected the determination of Congress to confirm the president's authority to detain terrorists already in military custody, prevent their being transferred from Guantánamo to federal prisons on the U.S. mainland, and increase the role of the military in future counterterrorist efforts.

But the law has angered libertarians and conservatives, who see its authorization of indefinite detention without trial and military custody of terrorist suspects as a frontal assault on the Bill of Rights. Opponents of the new law fear that it will further increase executive authority at the expense of the courts, prevent the United States from ever closing Guantánamo, and expose Americans to arbitrary arrest and indefinite detention. Indeed, such fears are founded.

To meet some of these concerns, the Senate House Conference Committee, a body that reconciles Senate and House drafts of new legislation, inserted language in the final version of the bill excluding U.S. citizens and lawful permanent residents from military custody. The Senate rejected efforts to exclude U.S. citizens from indefinite detention.

Instead, the bill states only that it will not alter existing law, but existing law on detention is not settled. President George W. Bush claimed that he had authority to indefinitely detain without bringing charges or bringing to trial José Padilla (a U.S. citizen arrested in Chicago) and Ali al-Marri (a legal permanent U.S. resident). Before the Supreme Court could hear the case challenging this assertion, however, the administration turned both individuals over to civilian courts.

Moreover, the NDAA's supposed exclusion of U.S. citizens from military custody is not absolute. First, the United States has no separate prison system for

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