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The most controversial provisions to receive wide attention are contained in Title X, Subtitle D, entitled "Counter-Terrorism." In particular, sub-sections 1021 and 1022, which deal with detention of persons the government suspects of involvement in terrorism, have generated controversy as to their legal meaning and their potential implications for abuse of Presidential authority.
The most controversial provisions to receive wide attention are contained in Title X, Subtitle D, entitled "Counter-Terrorism." In particular, sub-sections 1021 and 1022, which deal with detention of persons the government suspects of involvement in terrorism, have generated controversy as to their legal meaning and their potential implications for abuse of Presidential authority.
Although the White House<ref name="whitehouse1">{{cite web|url=http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/saps1867s_20111117.pdf |title=STATEMENT OF ADMINISTRATION POLICY|publisher= |date=17 November 2011|accessdate=2011-12-14}}</ref> and Senate sponsors<ref name="csmonitor1">{{cite news | url=http://www.csmonitor.com/USA/Justice/2011/1203/Guantanamo-for-US-citizens-Senate-bill-raises-questions | title=Guantánamo for US citizens? Senate bill raises questions | work=The Christian Science Monitor | date=3 December, 2011 | accessdate=December 18, 2011 | author=Knickerbocker, Brad}}</ref> maintain that the [[Authorization for Use of Military Force Against Terrorists|Authorization for Use of Military Force (AUMF)]] already grants presidential authority for indefinite detention, the Act states that Congress "affirms" this authority and makes specific provisions as to the exercise of that authority. <ref>Khalek, Rania, [http://www.alternet.org/rights/153421/%27global_battlefield%27_provision_allowing_indefinite_detention_of_citizens_accused_of_terror_could_pass_this_week "Global Battlefield' Provision Allowing Indefinite Detention of Citizens Accused of Terror Could Pass This Week"], ''Alternet,'' December 13, 2011.</ref> <ref>Library of Congress THOMAS. H.R. 1540 – National Defense Authorization Act for fiscal year 2012 [http://thomas.loc.gov/cgi-bin/query/z?c112:H.R.1540: Versions of H.R.1540].</ref> The detention provisions of the Act have received critical attention by, among others, the [[American Civil Liberties Union]] (ACLU) and some media sources which are concerned about the scope of the President's authority, including contentions that those whom they claim may be held indefinitely could include U.S. citizens arrested on American soil, including arrests by members of the Armed Forces.<ref>Khaki, Ateqah, [http://www.aclu.org/blog/tag/NDAA "Senate Rejects Amendment Banning Indefinite Detention,"] ''[[ACLU]] Blog of Rights'', November 29, 2011.</ref><ref>Savage, Charlie, [http://www.nytimes.com/2011/12/02/us/senate-declines-to-resolve-issue-of-american-qaeda-suspects-arrested-in-us.html "Senate Declines to Clarify Rights of American Qaeda Suspects Arrested in U.S.,"] ''[[The New York Times]]'', December 1, 2011.</ref><ref>Carter, Tom [http://www.wsws.org/articles/2011/dec2011/sena-d02.shtml "US Senators back law authorizing indefinite military detention without trial or charge,"] ''[[World Socialist Web Site]]'', December 2, 2011.</ref><ref>{{cite web|url=http://www.opencongress.org/bill/112-h1540/ |title=H.R.1540: National Defense Authorization Act for Fiscal Year 2012 – U.S. Congress |publisher=OpenCongress |date= |accessdate=2011-12-14}}</ref><ref>{{cite web|url=http://www.opencongress.org/bill/112-s1867/ |title=S.1867: National Defense Authorization Act for Fiscal Year 2012 – U.S. Congress |publisher=OpenCongress |date= |accessdate=2011-12-14}}</ref>
Although the White House<ref name="whitehouse1">{{cite web|url=http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/saps1867s_20111117.pdf |title=STATEMENT OF ADMINISTRATION POLICY|publisher= |date=17 November 2011|accessdate=2011-12-14}}</ref> and Senate sponsors<ref name="csmonitor1">{{cite news | url=http://www.csmonitor.com/USA/Justice/2011/1203/Guantanamo-for-US-citizens-Senate-bill-raises-questions | title=Guantánamo for US citizens? Senate bill raises questions | work=The Christian Science Monitor | date=3 December, 2011 | accessdate=December 18, 2011 | author=Knickerbocker, Brad}}</ref> maintain that the [[Authorization for Use of Military Force Against Terrorists|Authorization for Use of Military Force (AUMF)]] already grants presidential authority for indefinite detention, the Act states that Congress "affirms" this authority and makes specific provisions as to the exercise of that authority. <ref>Khalek, Rania, [http://www.alternet.org/rights/153421/%27global_battlefield%27_provision_allowing_indefinite_detention_of_citizens_accused_of_terror_could_pass_this_week "Global Battlefield' Provision Allowing Indefinite Detention of Citizens Accused of Terror Could Pass This Week"], ''Alternet,'' December 13, 2011.</ref> <ref>Library of Congress THOMAS. H.R. 1540 – National Defense Authorization Act for fiscal year 2012 [http://thomas.loc.gov/cgi-bin/query/z?c112:H.R.1540: Versions of H.R.1540].</ref> The detention provisions of the Act have received critical attention by, among others, the [[American Civil Liberties Union]] (ACLU) and some media sources which are concerned about the scope of the President's authority, including contentions that those whom they claim may be held indefinitely could include U.S. citizens arrested on American soil, including arrests by members of the Armed Forces.<ref>Khaki, Ateqah, [http://www.aclu.org/blog/tag/NDAA "Senate Rejects Amendment Banning Indefinite Detention,"] ''[[ACLU]] Blog of Rights'', November 29, 2011.</ref><ref>Savage, Charlie, [http://www.nytimes.com/2011/12/02/us/senate-declines-to-resolve-issue-of-american-qaeda-suspects-arrested-in-us.html "Senate Declines to Clarify Rights of American Qaeda Suspects Arrested in U.S.,"] ''[[The New York Times]]'', December 1, 2011.</ref><ref>Carter, Tom [http://www.wsws.org/articles/2011/dec2011/sena-d02.shtml "US Senators back law authorizing indefinite military detention without trial or charge,"] ''[[World Socialist Web Site]]'', December 2, 2011.</ref><ref>{{cite web|url=http://www.opencongress.org/bill/112-h1540/ |title=H.R.1540: National Defense Authorization Act for Fiscal Year 2012 – U.S. Congress |publisher=OpenCongress |date= |accessdate=2011-12-14}}</ref><ref>{{cite web|url=http://www.opencongress.org/bill/112-s1867/ |title=S.1867: National Defense Authorization Act for Fiscal Year 2012 – U.S. Congress |publisher=OpenCongress |date= |accessdate=2011-12-14}}</ref>

==Indefinite Detention without trial: Section 1021==
[[File:Camp x-ray detainees.jpg|thumb|Detainees upon arrival at Camp X-Ray, January 2002. In May 2006, the UN Committee against Torture condemned prisoners' treatment at Guantánamo Bay, noting that indefinite detention constitutes per se a violation of the UN Convention Against Torture.
]]
Pursuant to the [[AUMF]] passed in the immediate aftermath of the [[September 11 attacks|September 11, 2001 attacks]], the NDAA text affirms the President's authority to detain, via the [[United States Armed Forces|Armed Forces]], any person "who was 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," or anyone who commits a "belligerent act" against the U.S. or its coalition allies, under the law of war, "without trial, until the end of the hostilities authorized by the [AUMF]." The text also authorizes trial by [[military tribunal]], or "transfer to the custody or control of the person's country of origin," or transfer to "any other foreign country, or any other foreign entity."<ref>112th Congress, 1st Session, H1540CR.HSE: [http://www.gpo.gov/fdsys/pkg/BILLS-112hr1540enr/pdf/BILLS-112hr1540enr.pdf "National Defense Authorization Act for Fiscal Year 2012."] pp. 654–656.</ref> An amendment to the Act that would have explicitly forbidden the indefinite detention without trial of American citizens was rejected by the Senate.<ref>[http://www.aclu.org/national-security/senate-poised-pass-indefinite-detention-without-charge-or-trial "Senate Poised to Pass Indefinite Detention Without Charge or Trial,"] ''[[American Civil Liberties Union]]'', December 1, 2011.</ref>

Addressing previous conflict with the [[Obama Administration]] regarding the wording of the Senate text, the Senate-House compromise text, in sub-section 1021(d), also affirms that nothing in the Act "is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force." The final version of the bill also provides, in sub-section(e), that "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." As reflected in Senate debate over the bill, there is a great deal of controversy over the status of existing law. <ref> Savage, Charlie, [http://www.nytimes.com/2011/12/02/us/senate-declines-to-resolve-issue-of-american-qaeda-suspects-arrested-in-us.html "Senate Declines to Clarify Rights of American Qaeda Suspects Arrested in U.S.,"] ''[[The New York Times]]'', December 1, 2011.</ref>.


==Requirement for Military Custody: Section 1022==
==Requirement for Military Custody: Section 1022==

Revision as of 20:22, 6 January 2012

The National Defense Authorization Act (NDAA) for Fiscal Year 2012[1] was signed into United States law on December 31, 2011 by President Barack Obama.[2][3]

The Act authorizes $662 billion[4] in funding, among other things "for the defense of the United States and its interests abroad." In a signing statement, President Obama described the Act as addressing national security programs, Department of Defense health care costs, counter-terrorism within the U.S. and abroad, and military modernization.[5] [6] The Act also imposes new economic sanctions against Iran (section 1045), commissions reviews of the military capabilities of countries such as Iran, China, and Russia,[7] and refocuses the strategic goals of NATO towards energy security.[8] The Congressional Research Service provides a summary of the many provisions of the Act, available on the web. [9]

The most controversial provisions to receive wide attention are contained in Title X, Subtitle D, entitled "Counter-Terrorism." In particular, sub-sections 1021 and 1022, which deal with detention of persons the government suspects of involvement in terrorism, have generated controversy as to their legal meaning and their potential implications for abuse of Presidential authority. Although the White House[10] and Senate sponsors[11] maintain that the Authorization for Use of Military Force (AUMF) already grants presidential authority for indefinite detention, the Act states that Congress "affirms" this authority and makes specific provisions as to the exercise of that authority. [12] [13] The detention provisions of the Act have received critical attention by, among others, the American Civil Liberties Union (ACLU) and some media sources which are concerned about the scope of the President's authority, including contentions that those whom they claim may be held indefinitely could include U.S. citizens arrested on American soil, including arrests by members of the Armed Forces.[14][15][16][17][18]

Requirement for Military Custody: Section 1022

All persons arrested and detained according to the provisions of section 1021, including those detained on U.S. soil, whether detained indefinitely or not, are required to be held by the United States Armed Forces. The law affords the the option to have U.S. citizens detained by the armed forces but this requirement does not extend to them, as with foreign persons. Lawful resident aliens may or may not be required to be detained by the Armed Forces, "on the basis of conduct taking place within the United States."[19][20]

Actions from the White House and Senate leading to the vote

The White House had previously threatened to veto the Senate version of the Act,[10] arguing that "the authorities granted by the Authorization for Use of Military Force Against Terrorists, including the detention authority... are essential to our ability to protect the American people... Because the authorities codified in this section already exist, the Administration does not believe codification is necessary and poses some risk." The White House also argued that provisions requiring military detention of terrorism suspects on American soil were “inconsistent with the fundamental American principle that our military does not patrol our streets.” After a Senate-House compromise text explicitly ruled out any limitation of the President's authorities, and removed the requirement of military detention for terrorism suspects arrested in the United States, the White House issued a statement saying that it would not veto the bill.[21]

During debate within the Senate and before the Act's passage, Senator Mark Udall introduced an amendment intended to forbid the indefinite detention of U.S. citizens[22][citation needed]; the amendment was rejected by a vote of 37–61.[23] Udall subsequently voted for the Act in the joint session of congress that passed it, and though he remained "extremely troubled" by the detainee provisions, he promised to "push Congress to conduct the maximum amount of oversight possible."[24]

The Senate later adopted by a 98 to 1 vote a compromise amendment, based upon a proposal by Senator Dianne Feinstein, which preserves current law concerning U.S. citizens and lawful resident aliens detained within the United States.[25] Senator Feinstein has argued that current law does not allow the indefinite detention of American citizens, while the Obama Administration, Senators Carl Levin and John McCain have argued that it does.[11]

Controversy Over Indefinite Detention

Section 1021 and 1022 have been called a violation of constitutional principles and of the Bill of Rights.[26] Internationally, the UK-based newspaper The Guardian has described the legislation as allowing indefinite detention "without trial [of] American terrorism suspects arrested on US soil who could then be shipped to Guantánamo Bay;"[27] Al Jazeera has written that the Act "gives the US military the option to detain US citizens suspected of participating or aiding in terrorist activities without a trial, indefinitely."[28] The official Russian international radio broadcasting service Voice of Russia has compared the Act to legislation passed by the Third Reich;[29] the Act has been opposed by the ACLU and Human Rights Watch, and received criticism from The New York Times,[30] and other news organizations.[31][32]

On December 31 and after signing the National Defense Authorization Act for Fiscal Year 2012 into law, President Obama issued a statement on it that addressed "certain provisions that regulate the detention, interrogation, and prosecution of terrorism suspects." In the statement Obama maintains that "the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF. I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. [...] My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law. [...] As my Administration has made clear, the only responsible way to combat the threat al-Qa'ida poses is to remain relentlessly practical, guided by the factual and legal complexities of each case and the relative strengths and weaknesses of each system. Otherwise, investigations could be compromised, our authorities to hold dangerous individuals could be jeopardized, and intelligence could be lost. I will not tolerate that result, and under no circumstances will my Administration accept or adhere to a rigid across-the-board requirement for military detention."[33]

The American Civil Liberties Union has responded that despite claims by the Obama Administration to the contrary, "The statute contains a sweeping worldwide indefinite detention provision... [without] temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield." The ACLU furthermore commented that "While President Obama issued a signing statement saying he had 'serious reservations' about the provisions, the statement only applies to how his administration would use the authorities granted by the NDAA," and maintains that "the breadth of the NDAA’s detention authority violates international law because it is not limited to people captured in the context of an actual armed conflict as required by the laws of war."[34]

Sanctions targeting the Iranian Central Bank

Main article: U.S. sanctions against Iran

As part of the ongoing dispute over Iranian uranium enrichment, section 1045 of the NDAA imposes unilateral sanctions against the Central Bank of Iran, effectively blocking Iranian oil exports to countries which do business with the United States.[35][36] The new sanctions impose penalties against entities -- including corporations and foreign central banks -- which engage in transactions with the Iranian central bank. Sanctions on transactions unrelated to petroleum take effect 60 days after the bill is signed into law, while sanctions on transactions related to petroleum take effect a minimum of six months after the bill's signing.[36] The bill grants the U.S. President authority to grant waivers in cases in which petroleum purchasers are unable, due to supply or cost, to significantly reduce their purchases of Iranian oil, or in which American national security is threatened by implementation of the sanctions.[36][37]

See also

References

  1. ^ 112th Congress, 1st Session, H1540CR.HSE: "National Defense Authorization Act for Fiscal Year 2012."
  2. ^ "Obama signs defense bill, pledges to maintain legal rights of terror suspects". Washington Post. Retrieved December 31, 2011.
  3. ^ "Obama Signs NDAA". ACLU. 31 November 2011. Retrieved 2011-12-31. {{cite web}}: Check date values in: |date= (help)
  4. ^ Wolverton, J., "Obama Signs National Defense Authorization Act into Law," The New American, [1].
  5. ^ President Obama's signing statement http://www.whitehouse.gov/the-press-office/2011/12/31/statement-president-hr-1540
  6. ^ "Barack Obama: Statement on Signing the National Defense Authorization Act for Fiscal Year 2012". John T. Woolley and Gerhard Peters, The American Presidency Project [online]. December 31,2011. Retrieved 2012-01-03. {{cite news}}: Check date values in: |date= (help)
  7. ^ Sections 1232 and 1240.
  8. ^ Section 1233 from H1540CR.HSE: "National Defense Authorization Act for Fiscal Year 2012.".
  9. ^ Congressional Research Service Bill Summary http://thomas.loc.gov/cgi-bin/bdquery/D?d112:5:./temp/~bdroKh:@@@D&summ2=m&%7C/home/LegislativeData.php?n=BSS;c=112%7C
  10. ^ a b "STATEMENT OF ADMINISTRATION POLICY" (PDF). 17 November 2011. Retrieved 2011-12-14.
  11. ^ a b Knickerbocker, Brad (3 December, 2011). "Guantánamo for US citizens? Senate bill raises questions". The Christian Science Monitor. Retrieved December 18, 2011. {{cite news}}: Check date values in: |date= (help)
  12. ^ Khalek, Rania, "Global Battlefield' Provision Allowing Indefinite Detention of Citizens Accused of Terror Could Pass This Week", Alternet, December 13, 2011.
  13. ^ Library of Congress THOMAS. H.R. 1540 – National Defense Authorization Act for fiscal year 2012 Versions of H.R.1540.
  14. ^ Khaki, Ateqah, "Senate Rejects Amendment Banning Indefinite Detention," ACLU Blog of Rights, November 29, 2011.
  15. ^ Savage, Charlie, "Senate Declines to Clarify Rights of American Qaeda Suspects Arrested in U.S.," The New York Times, December 1, 2011.
  16. ^ Carter, Tom "US Senators back law authorizing indefinite military detention without trial or charge," World Socialist Web Site, December 2, 2011.
  17. ^ "H.R.1540: National Defense Authorization Act for Fiscal Year 2012 – U.S. Congress". OpenCongress. Retrieved 2011-12-14.
  18. ^ "S.1867: National Defense Authorization Act for Fiscal Year 2012 – U.S. Congress". OpenCongress. Retrieved 2011-12-14.
  19. ^ McGreal, Chris, "Military given go-ahead to detain US terrorist suspects without trial," The Guardian, 14 December 2011: [2].
  20. ^ Greenwald, Glenn, "Obama to sign indefinite detention bill into law," Salon.com, 14 December 2011: [3].
  21. ^ "White House issues statement saying it will not veto defense bill". The Washington Post. December 14, 2011. Retrieved December 18, 2011.
  22. ^ text of the Udall Amendment
  23. ^ U.S. Senate Roll Call Votes 112th Congress – 1st Session
  24. ^ "Despite concerns, Udall gives nod to Defense Authorization bill." Denver Post, December 15, 2011.
  25. ^ Gerstein, Josh, "Senate Votes to Allow Indefinite Detention of Americans." Politico, December 1, 2011.
  26. ^ "Commentary: trampling the bill of rights in defense's name." The Kansas City Star, 14 December 2011: [4].
  27. ^ McGreal, C., "Military given go-ahead to detain US terrorist suspects without trial", The Guardian, 14 December 2011: [5].
  28. ^ Parvaz, D., "US lawmakers legalise indefinite detention", Al Jazeera, 16 December 2011: [6].
  29. ^ Kramnik, Ilya, "New US Defense Act curtails liberties not military spending," Voice of Russia, 28 December 2011: [7].
  30. ^ Rosenthal, A., "President Obama: Veto the Defense Authorization Act," The New York Times, 30 November 2011: [8].
  31. ^ Grey, B. and T. Carter, "The Nation and the National Defense Authorization Act", World Socialist Web Site, 27 December 2011: [9].
  32. ^ E.D. Kain: The National Defense Authorization Act is the Greatest Threat to Civil Liberties Americans Face. In: Forbes. December 5, 2011
  33. ^ "Barack Obama: Statement on Signing the National Defense Authorization Act for Fiscal Year 2012". John T. Woolley and Gerhard Peters, The American Presidency Project [online]. December 31,2011. Retrieved 2012-01-01. {{cite news}}: Check date values in: |date= (help)
  34. ^ "President Obama Signs Indefinite Detention Bill Into Law," ALCU, 31 December 2011 [10].
  35. ^ MacInnis, Laura and Parisa Hafezi (December 31,2011). "U.S. steps up sanctions as Iran floats nuclear talks". Reuters Canada. Retrieved 2012-01-05. {{cite news}}: Check date values in: |date= (help)
  36. ^ a b c Lee, Carol E. and Keith Johnson (January 4,2012). "U.S. Targets Iran's Central Bank". Wall Street Journal. Retrieved 2012-01-05. {{cite news}}: Check date values in: |date= (help)
  37. ^ MacInnis, Laura (January 1,2012). "U.S. imposes sanctions on banks dealing with Iran". Reuters India. Retrieved 2012-01-05. {{cite news}}: Check date values in: |date= (help)
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