The National Defense Authorization Act (NDAA), recently adopted by Congress
and signed into law by Barack Obama, contains language that has raised substantial
Constitutional questions by civil libertarians on both the political right and on the political left.
The bulk of the lengthy legislation deals with the routine authorization for military spending by
the Pentagon, including items such as military pay, veterans’ benefits, weapons procurement,
etc. Such legislation must be passed on a regular basis if the United States military is to
continue to operate.
However, in the U. S. Senate version of the legislation, S.1867, there are sections
dealing with the detaining of people suspected of being involved with terrorist organizations or
any groups engaging in, or planning, hostile actions against the United States. These suspects
can be arrested by American military forces and detained indefinitely, without formal charges
being filed, and without trial, until the “hostilities” end. The term hostilities refers to the
general war on terror, not to specific military actions, such as those in Afghanistan or Iraq.
Therefore, there is no end in sight to the possible period of detention. This is the version that
was ultimately passed by the full Congress.
The question is, does the law allow members of the United States armed forces to
detain American citizens, including those arrested in the United States, without granting them
due process? The language in the bill is unclear, at best. In section 1031, the first paragraph
“(a) IN GENERAL.—Congress affirms that the authority of the President to use all necessary
and appropriate force pursuant to the Authorization for Use of Military Force (Public
Law 107–40) includes the authority for the Armed Forces of the United States to detain
covered persons (as defined in subsection (b)) pending disposition under the law of
The legislation then provides a definition of the individuals covered by the legislation:
“(b) COVERED PERSONS.—A covered person under this section is any person as follows:
(1) A person who planned, authorized, committed, or aided the terrorist attacks that
occurred on September 11, 2001, or harbored those responsible for those attacks.
(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or
associated forces that are engaged in hostilities against the United States or its coalition
partners, including any person who has committed a belligerent act or has directly
supported such hostilities in aid of such enemy forces.”
The legislation goes on to provide various options for dealing with the individuals
arrested pursuant to the authority provided to the President. It states:
“(c) DISPOSITION UNDER LAW OF WAR.—The disposition of a person under the law of war as
described in subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of the hostilities
authorized by the Authorization for Use of Military Force.
(2) Trial under chapter 47A of title 10, United States Code (as amended by the
Military Commissions Act of 2009 (title XVIII of Public Law 111–84)).
(3) Transfer for trial by an alternative court or competent tribunal having lawful
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