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Wednesday, November 02, 2011

The War on Terrorism and the National Defense Authorization Act (NDAA)

I had been staying pretty quiet in blog-land on the significance of the detainee provisions in the Senate Armed Services Committee's version of the National Defense Authorization Act, but Sunday's Washington Post editorial was a bridge too far. Indeed, as I explain in more detail in this ACSblog guest post, although much of the public attention to the NDAA has been, like the Post's, to sections 1032 and 1033 (mandatory military detention and spending restrictions on transfers), perhaps the most significant provision is section 1031, which "updates" the scope of the government's detention authority (and, in my view, dramatically expands it both at home and overseas).  The Post nevertheless called this provision "wise[]." Suffice it to say, I disagree.

Posted by Steve Vladeck on November 2, 2011 at 08:48 AM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink


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Thanks for the comment--I agree completely that this is probably what the Obama Administration meant when it initially crafted the language (in the "March 13" definition), but I don't have any faith that courts would read it that way. Indeed, it seems to me one could easily argue that the "including" modifier gives content to "associated forces," such that Hamas is not nearly the stretch that we might otherwise think it is. To my mind, the clearer way to communicate the same would be to delete everything from "including" on, or otherwise more directly emphasize the link.

To reiterate, I doubt this move was intentional, at least on the Administration's part. That doesn't mean courts wouldn't give it independent meaning, and that's my concern...

Posted by: Steve Vladeck | Nov 2, 2011 11:41:05 AM

I read your ACSblog and agree that the proposed language in section 1031 could be clearer but not sure it raises the concerns you expressed. It covers, “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.” You indicate that this language means that the “NDAA effectively authorizes the military detention of any individual who provides such assistance [logistical or financial] anywhere in the world to any group engaged in hostilities against any of our coalition partners, whether or not the United States is in any way involved in (or even affected by) that particular conflict.” That seems too broad to me. The proposed language appears to have some limiting principles as it must be someone who was part of or supported AQ, the Taliban or associated forces. Of course, “associated forces” may be broad but I don’t think this language would allow us to detain Hamas members for instance as they are not an associated force of AQ or the Taliban, or even Hezbollah, would it? The subsequent “including” language seems to be limited by the prior reference to AQ, the Taliban or associated forces. Again, there is plenty of ambiguity such as what “direct support” entails (and financial and logistical may be considered indirect, and hence not covered, in some instances) but I don’t think it is as broad as you suggest. Thoughts?

Posted by: adjunct law prof | Nov 2, 2011 11:37:28 AM

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