NDAA Controversy

In 2011, Congress decided to codify military detention authority while legislating the annual National Defense Authorization (FY 2012) to fund the armed forces.  The final bill stated that Congress “affirms that the authority of the President to use all necessary and appropriate force pursuant to the [September 2001 AUMF] includes the authority for the Armed Forces of the United States to detain covered persons . . . pending disposition under the law of war”. . .  For a fuller explanation of how the definition of “covered persons” included in the bill tracked the definition already being used by the Executive and judicial branches, see:

During the course of the Senate debate on the bill, a group of Republican senators, led by Lindsay Graham of South Carolina, argued that the United States is in a worldwide war against al Qa'ida and other groups and therefore suspected terrorists could be picked up anywhere by the military and held without trial indefinitely.  They specifically claimed that suspected terrorists seized in the US could be held by the military instead of facing criminal charges.  But the Senate refused to adopt this view.  Instead, an amendment from Dianne Feinstein of California was adopted, which reads:

“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.” (Section 1021(e)).

This language made clear that Congress was not expanding military detention authority for individuals found inside the United States.  Nevertheless, a persistent myth that this legislation did in fact open the door to domestic military detention persists.  The Center has endeavored to correct this misunderstanding of the 2011 NDAA.  See for example:

Lawsuit Challenging NDAA as Authorizing Domestic Detentions

In mid-2012, various journalists sued the government based on the mistaken belief that the NDAA had authorized military detention of people seized in the United States.  CNSS with The Constitution Project filed an amicus brief explaining: first that the Obama administration has committed to using criminal courts for terrorist suspects in the United States, and second that nothing in the 2012 NDAA or the 2001 Authorization for Use of Military Force authorized military detention of people apprehended in the United States

In the trial court (S.D. N.Y. No. 1:12-cv-00331-KBF)
Hedges v. Obama et al., January 13, 2012
Opinion by Judge Forrest granting an injunction against use of detention authority, May 16, 2012

In the appeals court (2nd Cir., No. 12-3176)
Government's Motion for a Stay pending appeal, September 17, 2012
Hedges and others' opposition to a Stay, September 27, 2012
Government's reply in support of a Stay, September 28, 2012
Court order granting a Stay, October 2, 2012

Government's brief on appeal, November 6, 2012
CNSS amicus brief,  November 13, 2012
Hedges and other's brief on appeal, December 10, 2012
Government's reply brief, December 20, 2012

Opinion by the Court of Appeals, July 17, 2013