House-Senate Side-by-Side of NDAA Provisions: Part I

By Benjamin Wittes
Wednesday, December 7, 2011, 8:20 AM

As the House of Representatives and the Senate head to conference on the NDAA, I thought it might be useful to analyze the similarities and differences between the counterterrorism provisions of the two versions of the bill. People sometimes talk about the NDAA as though both houses are on the same track. And there are some similar themes. But the two bills are also quite different. And these difference give rise to opportunities in conference: opportunities to emerge with far better policy than either bill presents on its own, and opportunities for mischief as well.

In this pair of posts, which is organized thematically and loosely according to the sequence of provisions in the House version of the bill, I am going to do a kind of side-by-side analysis. In each section that follows, I will start with a discussion of the House bill, which is longer and more involved, then describe how the analogous Senate provision (if one exists) differs. I will then discuss what I think the optimal realistic policy outcome looks like given the two versions. I am not going to rehash the merits or lack thereof of the specific provisions, all of which we have discussed elsewhere. My point is simply to highlight where the Congress has a clear position and where the houses are reading from different playbooks.

The Senate version of the bill is available here, with the relevant section running from pp. 426-445. The House version of the bill is available here and runs from pp. 567-603. As this will get long, I will break it up into two posts.

AUMF Reaffirmation

Both bills contain some form of reaffirmation of the AUMF, but they differ in important ways. The House version (Section 1034, pp. 570-571) is cast as a broad reaffirmation of the conflict itself and clarification of the parameters of that conflict:

    Congress affirms that--
      (1) the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad;
      (2) the President has the authority to use all necessary and appropriate force during the current armed conflict with al-Qaeda, the Taliban, and associated forces pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note);
      (3) the current armed conflict includes nations, organization, and persons who--

(A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners; or

(B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A); and

(4) the President's authority pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) includes the authority to detain belligerents, including persons described in paragraph (3), until the termination of hostilities.

The authority to detain here is a feature of the larger authorization. By contrast, the Senate version (Section 1031, pp. 426-428) casts the reaffirmation more narrowly as an affirmation of the authority to detain itself. The Senate bill is more concerned with spelling out detention authority than with authorizing the conflict:

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 war.

The Senate bill, in fact, clarifies that it is not intended either to limit or expand the authority to wage war under the AUMF (See subsection (d)).

With this important caveat, the substantive scope of the reaffirmations are similar and both based on the administration's litigating positions. The Senate bill defines those subject to military custody as:

(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.

Unlike the House bill, the Senate also spells out (Subsection (c)) the lawful dispositions under the laws of war. These include (1) detention until the end of hostilities, (2) trial by military commission, (3) trial by an alternative court or other competent tribunal, including implicitly federal courts, and (4) transfer to some other country. And it contains a disclaimer (see Subsection (e)) that it should "not be construed to affect existing law or authorities, relating to the detention of United States citizens, lawful resident aliens . . . or any other persons who are captured or arrested in the United States."

To put the matter simply, there's going to be some kind of reaffirmation language in the final bill; the question is what sort. The House bill is the better model. The Senate bill is confused and needlessly complicated, and these provisions are inextricably tied into the noxious mandatory detention language I discuss below. The House bill, by contrast, has raised the ire of civil libertarians and human rights groups. But from the administration's point of view, it should be understood as doing no harm, merely as authorizing what the administration claims is already authorized. Legitimate questions have arisen about aspects of its wording, but these are nothing that can't be fixed in conference. In my view, at least, the administration should push for inclusion of a modified version of the House language, which it can reasonably interpret as merely a codification of existing policy.

Mandatory Military Detention

The House bill no longer contains any explicit requirement for military custody of terrorist suspects--though it does contain several other provisions (which I will describe in my second post) that militate strongly in that direction. The Senate bill, however, still does--to wit, Section 1032 (pp. 428-432). As we have discussed many aspects of this provision at great length, I'm going to be brief on the subject here: The provision needs to go. Full stop. It doesn't need to be caveated. It doesn't need further explication of legislative intent. It doesn't need a few more pages injecting a little more flexibility. It is a bad idea and it needs to die. While Bobby and I have both suggested potentially viable work-arounds for an executive that actually has to live under this provision, neither is adequate. If the President signs a bill that contains anything like this language, he deserves to have to live under it. His successor, however, does not. Barack Obama has a duty to his office to veto any bill that contains this provision in any form, and the administration needs to continue to make crystal clear to the conference committee that he will do so.

National Security Protocol Requirement

The House bill contains (Section 1035, pp. 571-573) a requirement that the administration develop a "national security protocol" for each detainee to govern his communication with the outside world. The provision responds to suggestions that attorneys for detainees have brought them inappropriate materials and facilitated inappropriate outside contacts. Each protocol, under the terms of the proposal, must contain a description of:

  • The authority of the individual to have access to counsel and any limits on access to that lawyer;
  • What items are forbidden and allowed to that individual;
  • What sort of information the individual is not allowed to discuss with outside parties;
  • The nature of and controls on the outside communications allowed to the individual; and
  • The nature of any monitoring of legal materials to which the individual may have access.

This provision strikes me as needless congressional micromanagement of executive handling of detainee affairs. But it's also more of a paperwork burden than a substantive burden. If I were the administration, I would oppose it. And if I were the detainee bar, I would oppose it very vigorously. But at least as I read it, I would not consider it a showstopper. It doesn't require that the administration restrict access to people or materials. It actually doesn't require any substantive outcomes at all. It requires only that the administration come up with an unclassified document for each detainee describing--in admittedly extreme detail--who gets access to what. This is a big administrative burden, but it does no particular violence to the military's ability to manage Guantanamo. If it ends up in the final bill, it would be a pain in the butt, but no kind of disaster.

Codification of the Guantanamo Review Process

Both bills contain efforts to codify in statute the review process for Guantanamo detainees slated for long-term detention. The two versions both have the virtue (in my view) of creating legislative architecture for detention policy; it seems to me a salutary thing for the rules to exist in law, rather than in an executive order. The two versions, however, look nothing alike, and the House bill, at least, embodies a very different vision of the appropriate review process than the administration's executive order lays out. This sets up a potential conflict if the House language prevails in its current form.

The differences between the two bills are both structural and substantive. The House version (Section 1036, pp. 574-585) attempts to codify the review process in great detail, actually laying out the procedures to be used in place of those outlined in the president's executive order. Some of the procedures required in the House bill are very different from the ones the executive order contemplates. For example, the House bill would require that the initial review panels be all-military (though it creates an interagency appellate-type review), while the administration wants interagency review panels; and more significantly, the House bill does not give detainees counsel in the process but a non-legal representative.

The Senate version (Section 1035, pp. 440-442), by contrast, is crafted instead as broad guidance for the executive-defined review procedures. As I read it, it would require only minor modification to the the executive order process--with which it is largely harmonizable.

To have a successful conference on this point, the administration should accept that some form of review process is going to be written into law. There's nothing wrong with that; in fact, it's good. The question is what sort of review process will be in law. There are really two possible ways to answer this question--and I could live with either. The first possibility is for conferees and the administration representatives to negotiate some kind of compromise between the House language and the more-liberal administration executive order--to grind it out detail by detail and emerge with something more restrictive than the administration has put forth and more generous than the House-passed language. The second possibility is to simply adopt the Senate language, which is less ambitious and thus easier to harmonize with current policy.

Funding Restrictions on Domestic Detention Facilities

Call it the "Don't Close Guantanamo" provision. It's in both bills (Section 1037, p. 585 of the House bill and Section 1034, pp. 439-440 of the Senate bill), which are virtually identical on the point. It would ban the use of FY 2012 money to create sites in the U.S. to house Guantanamo detainees. The administration notionally stands by its promise to close Guantanamo, but realistically, it's not going to go to the wall over this--nor should it given the constellation of forces in Congress committed to keeping Guantanamo open. So this provision will be in the final bill. Guantanamo isn't closing. Stop kidding yourself on this point.

Family Member Visitation Restrictions

This absurd little provision (Section 1038, pp. 585-586) shows up in the House bill only. It responds to the great problem sweeping the nation of Guantanamo family visitation. I can't imagine it will play much role in the conference committee one way or another. It might, however, provide a good Moment of Zen for Ritika.

I will have more side-by-side analysis later today--including on transfer restrictions, status determination procedures, and other goodies. Stay tuned.