Once More, With Feeling: The FY2013 NDAA and Domestic Detention

By Steve Vladeck
Tuesday, May 15, 2012, 2:55 PM

I have thus far stayed fairly mum on the FY2013 National Defense Authorization Act, if for no other reason than the 150 exams (now 80) that I have to grade. That said, there's an alarming meme emerging from the House Republicans in the discourse over the detention provisions of the FY2013 NDAA that needs to be rebutted before folks actually take it seriously:

The short version is as follows: In response to a series of competing proposals formally to codify a ban on domestic military detention, especially the bipartisan Smith-Amash bill, the House Armed Services Committee has circulated a letter to Chairman McKeon co-authored by former high-ranking Reagan and Bush (II) administration officials arguing that such a ban is unnecessary because both existing legislation and the FY2013 NDAA are sufficiently clear on this issue--and because proposals like the Smith-Amash bill "attempt[] to exploit misconceptions about the [FY2012] NDAA." [Update: The letter is available here.] Trevor already wrote quite cogently about why the Republican scare-mongering re: the Smith-Amash bill and similar proposals fails to persuade; I just want to add two additional points worth keeping in mind as part of this conversation--and do so below the fold.

First, proposals like the Smith-Amash bill are not based on misconceptions about the FY2012 NDAA. They're targeted at an issue not resolved by the FY2012 NDAA, i.e., the government's authority to detain without trial individuals captured within the territorial United States. Just so we're all clear on the issue, the FY2012 NDAA leaves open whether and to what extent citizens and non-citizens arrested or otherwise captured within the United States may be subject to military detention under the 2001 Authorization for Use of Military Force, and as I've written before (ad nauseum), the pre-NDAA law itself was unsettled on this question. If there is a misconception being perpetuated here, it is the view that this isn't a problem worth a solution. Reasonable people may disagree about what the solution should be (clearer authorization of domestic detention vs. an outright ban), but that's a different kettle of fish...

Second, and speaking of misconceptions, one of the claims advanced in the Meese/Mukasey letter (and in the article in The Hill noted by Trevor) is that the Rigell-Landry "Right to Habeas Corpus Act" "erases any doubt" on the underlying question. The implication of this assertion appears to be that support for the Rigell-Landry bill / the HASC version of the FY2013 NDAA will be sufficient to address the concern many Members (not to mention their constituents) have with the prospect of sweeping domestic detention authority. This claim is simply a canard.

As I've explained before, the Rigell-Landry bill is completely superfluous, since it reaffirms something that is already true, i.e., that individuals detained within the United States are entitled to challenge their military detention through petitions for writs of habeas corpus. That is to say, the Rigell-Landry bill merely recodifies an already existing remedy, while saying nothing about the underlying substantive question, to wit, can individuals arrested within the territorial United States be subjected to potentially indefinite military detention without trial? As I wrote about the Rigell-Landry bill when it was introduced, "It’s always nice to see Members of Congress trying to take habeas seriously, but . . . this bill, however well-intentioned, is silly, utterly unnecessary, and perhaps even counterproductive."

More to the point, this silliness is reiterated (if not expanded upon) in the HASC Chairman's Mark of the FY2013 NDAA draft, section 1031(3) of which [see pp. 362-64 of this PDF] reiterates the importance of the judicial review provided for by habeas without saying anything about the merits of a domestic detainee's habeas claims. [For similarly useless platitudes, see also section 1032, pg. 366.] The only "substantive" provision is section 1033, which provides that:

Nothing in the [AUMF] or the [FY2012 NDAA] shall be construed to deny the availability of the writ of habeas corpus in a court ordained or established by or under Article III of the Constitution for any person who is detained in the United States pursuant to the [AUMF].

Just so we're all clear, this language does nothing with regard to addressing the substance of domestic detention authority, nor does it create a remedy that doesn't already exist. If anything, this language is counterproductive, since it implies that habeas might not be available in other cases (including those not covered by the habeas-stripping provision of the Military Commissions Act of 2006).

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I continue to think that the focus on domestic detention authority distracts from the larger, more significant, and more immediately relevant question of overseas detention authority. But so long as folks think it is worthwhile to close the gap that everyone thought the FY2012 NDAA opened with regard to domestic detention, let's at least have the conversation on the right terms--on whether we should or shouldn't ban domestic detention. Guaranteeing habeas by statute in such cases just isn't sufficient--leaving aside the fact that it's also unnecessary.