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This report offers a brief background of the salient issues raised by H.R. 1540 and S. 1867 regarding detention matters, provides a section-by-section analysis of the relevant subdivision of each bill, and compares the bills' approaches with respect to the major issues they address.
In recent years, Congress has included provisions in annual defense authorization bills addressing issues related to detainees at the U.S. Naval Station at Guantanamo Bay, Cuba, and, more broadly, the disposition of persons captured in the course of hostilities against Al Qaeda and associated forces. The National Defense Authorization Act for FY2012 (2012 NDAA; P.L. 112-81) arguably constituted the most significant legislation informing wartime detention policy since the 2001 Authorization for the Use of Military Force (AUMF; P.L. 107-40), which serves as the primary legal authority for U.S. operations against Al Qaeda and associated forces. Much of the debate surrounding passage of the 2012 NDAA centered on what appeared to be an effort to confirm or, as some observers view it, expand the detention authority that Congress implicitly granted the President via the AUMF in the aftermath of the terrorist attacks of September 11, 2001. But the 2012 NDAA addressed other issues as well, including the continued detention of persons at Guantanamo. Both the 2013 NDAA (P.L. 112-239) and the 2014 NDAA (P.L. 113-66) also contain subtitles addressing U.S. detention policy, though neither act addresses detention matters as comprehensively as did the 2012 NDAA. The FY2015 NDAA (P.L. 113-291) and the Consolidated and Further Continuing Appropriations Act, 2015 (2015 Cromnibus; P.L. 113-235), essentially maintain the status quo. The 2012 NDAA authorizes the detention of certain categories of persons and requires the military detention of a subset of them (subject to waiver); regulates status determinations for persons held pursuant to the AUMF; regulates periodic review proceedings concerning Guantanamo detainees; and continued funding restrictions on Guantanamo detainee transfers. During floor debate, significant attention centered on the extent to which the bill and existing law permit the military detention of U.S. citizens believed to be enemy belligerents, especially if arrested within the United States. The enacted version included a provision clarifying that the act's affirmation of detention authority under the AUMF is not intended to affect existing authorities relating to the detention of U.S. citizens or lawful resident aliens, or any other persons arrested in the United States. When signing the 2012 NDAA into law, President Obama stated that he would “not authorize the indefinite military detention without trial of American citizens.” The 2012 NDAA and subsequent defense authorization enactments also included provisions concerning the transfer or release of detainees currently held at Guantanamo. Both the 2012 and 2013 NDAAs extended the existing prohibition on the release of detainees into the United States for any purpose, as well as restrictions upon the transfer of such Guantanamo detainees to foreign countries. The 2014 NDAA extends the blanket prohibition on transferring Guantanamo detainees to the United States, but allows the Executive greater flexibility in determining whether to transfer detainees to foreign custody. Both policies are continued in the 2015 NDAA and the 2015 Cromnibus, and the Obama Administration has stepped up the transfer of detainees to foreign countries. This report offers a brief background of the salient issues raised by the detainee provisions of the FY2012 NDAA, provides a section-by-section analysis, and discusses executive interpretation and implementation of the act's mandatory military detention provision. It also addresses detainee provisions in the 2013 NDAA and 2014 NDAA, as well as those considered during the House and Senate deliberations of the 2015 NDAA. An earlier version of this report was entitled The National Defense Authorization Act for FY2012 and Beyond: Detainee Matters.
In recent years, Congress has included provisions in annual defense authorization bills addressing issues related to detainees at the U.S. Naval Station at Guantanamo Bay, Cuba, and, more broadly, the disposition of persons captured in the course of hostilities against Al Qaeda and associated forces. The National Defense Authorization Act for FY2012 arguably constituted the most significant legislation informing wartime detention policy since the 2001 Authorization for the Use of Military Force, which serves as the primary legal authority for U.S. operations against Al Qaeda and associated forces.
This report offers a brief background of the salient issues raised by the detainee provisions of the FY2012 NDAA, provides a section-by-section analysis, and discusses executive interpretation and implementation of the act's mandatory military detention provision. It also addresses detainee provisions in the 2013 NDAA and 2014 NDAA, as well as those found in the competing House and Senate defense authorization bills for FY2015.
The National Defense Authorization Act for FY2012 (2012 NDAA, P.L. 112-81) contains a subtitle addressing issues related to detainees at the U.S. Naval Station at Guantanamo Bay, Cuba, and more broadly, the disposition of persons captured in the course of hostilities against Al Qaeda and associated forces. Much of the debate surrounding passage of the act centered on what appears to be an effort to confirm or, as some observers view it, expand the detention authority that Congress implicitly granted the President via the Authorization for Use of Military Force (AUMF, P.L. 107-40) in the aftermath of the terrorist attacks of September 11, 2001. The 2012 NDAA, as enacted, largely adopts the detention provisions from the Senate bill, S. 1867, with several modified provisions from the House bill, H.R. 1540, along with a few modifications inserted at conference in an effort to avoid a presidential veto. It authorizes the detention of certain categories of persons and requires the military detention of a subset of them (subject to waiver by the President); regulates status determinations for persons held pursuant to the AUMF, regardless of location; regulates periodic review proceedings concerning the continued detention of Guantanamo detainees; and continues current funding restrictions that relate to Guantanamo detainee transfers to foreign countries. The act continues to bar military funds from being used to transfer detainees from Guantanamo into the United States for trial or other purposes, although it does not directly bar criminal trials for terrorism suspects (similar transfer restrictions are found in the Consolidated and Further Continuing Appropriations Act, 2012 (P.L. 112-55) and the Consolidated Appropriations Act, 2012 (P.L. 112-74)). This report offers a brief background of the salient issues raised by the detainee provisions of the FY2012 NDAA and provides a section-by-section analysis.
This report offers a brief background of the salient issues raised by the detainee provisions of the FY2012 NDAA, provides a section-by-section analysis, and discusses executive interpretation and implementation of the act's mandatory military detention provision. It also addresses detainee provisions in the National Defense Authorization Act for FY2013, P.L. 112-239, as well as detainee provisions in the National Defense Authorization Act for FY2014 (H.R. 1960, S. 1197).
Last December, Congress enacted the National Defense Authorization Act-NDAA-for Fiscal Year 2012. The bill contained what to me are deeply troubling provisions related to indefinite detention. I viewed them as inconsistent with our Nation's fundamental commitment to protect liberty. The American justice system is the envy of the world. A regime of indefinite detention degrades the credibility of our great Nation around the globe, particularly when we criticize other governments for engaging in such conduct. Indefinite detention contradicts the most basic principles of law that I have pledged to uphold since my years as a prosecutor and in our senatorial oath to defend the Constitution. That is why I am fundamentally opposed to indefinite detention without charge or trial.
The detainee provisions passed as part of the National Defense Authorization Act for FY2012, P.L. 112-81, affirm that the Authorization for Use of Military Force (AUMF), P.L. 107-40, in response to the terrorist attacks of September 11, 2001, authorizes the detention of persons captured in connection with hostilities. The act provides for the first time a statutory definition of covered persons whose detention is authorized pursuant to the AUMF.During debate of the provision, significant attention focused on the applicability of this detention authority to U.S. citizens and other persons within the United States. The Senate adopted an amendment to clarify that the provision was not intended to affect any existing law or authorities relating to the detention of U.S. citizens or lawful resident aliens, or any other persons captured or arrested in the United States. This report analyzes the existing law and authority to detain U.S. persons, including American citizens and resident aliens, as well as other persons within the United States who are suspected of being members, agents, or associates of Al Qaeda or possibly other terrorist organizations as “enemy combatants.”The Supreme Court in 2004 affirmed the President's power to detain “enemy combatants,” including those who are U.S. citizens, as part of the necessary force authorized by Congress after the terrorist attacks of September 11, 2001. Lower courts that have addressed the issue of wartime detention within the United States have reached conflicting conclusions.This report provides a background to the legal issues presented, followed by a brief introduction to the law of war pertinent to the detention of different categories of individuals. An overview of U.S. practice during wartime to detain persons deemed dangerous to the national security is presented. The report concludes by discussing Congress's role in prescribing rules for wartime detention.
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