The Issue is Not the NDAA, it’s the AUMF
A group of Rhode Island State Representatives (Dan Gordon, R-Portsmouth/Tiverton/Little Compton; Jack Savage R-East Providence; Raymond Hull, D-Providence; John Carnevale, D-Providence/Johnston and Donald Lally, D-Narragansett/North Kingstown/South Kingstown) has introduced a resolution into the RI House (H7916) condemning the section of the Federal Government’s 2012 National Defense Authorization Act (NDAA) pertaining to the detention of persons operationally connected to “al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners” by the Armed Forces of the United States.
The primary focus of the proposed House resolution is NDAA section 1021 which “affirms” that Presidential authority under the 2001 Authorization to Use Military Force (AUMF) “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 2001 AUMF was passed for the purpose of allowing sustained military action in response to the September 11 attacks of that year.
The “covered persons” of subsection 1021(b), according to the text of the NDAA, are…
(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.…though subsection 1021(e) adds this qualifier…
(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.
(e) AUTHORITIES.—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.This is clearly less than a complete prohibition on the President or the Armed Forces which he commands using their war-powers to detain someone within the borders of the US.
The proposed resolution in the RI House contrasts the language of section 1021 with that of the next section (1022), which addresses persons “captured in the course of hostilities authorized by the Authorization for Use of Military Force”. Subsections (b)(1) and (b)(2) of section 1022 exclude US citizens and lawful residents from its jurisdiction in no uncertain terms…
(1) CITIZENS.—The requirement to detain a person in military custody under this section does not extend to citizens of the United States.The RI House resolution takes exception to the difference between the strong language of 1022(b) versus the weaker qualification embodied 1021(e), averring that it implies an intent to give the executive branch the power to deal with section 1021’s “covered persons” who are also US citizens, at home, outside of normal civilian policing rules and court procedures. I can agree that this is probably true.
(2) LAWFUL RESIDENT ALIENS.—The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.
Thinking through this issue takes us into a yuck-area of government and the law that people living in a peaceful society don’t like to contemplate, but that does need to be considered and prepared for. What is or isn’t allowed, during a shooting war, if an American citizen decides to collaborate with the enemy, be it inside or outside of the borders of the United States?
In the case of a full-on declared war, in the way that declared wars were thought about up until at least World War II, there was a straightforward principle that could be applied: Whatever response would be allowed against enemy soldiers who crossed the border would also be justified against a citizen pursuing the same goals as that enemy. There would not be one set of rules for a non-citizens organized to violently impose their will on the people of the United States, but a lighter set of rules for US citizens who joined in their efforts. And in at least one case from World War II, this principle was directly applied, when a US citizen (Hans Haupt) who had trained with German saboteurs was deployed into the United States, then captured, tried by a military tribunal and executed. The use of a military tribunal to impose a death sentence in Haupt’s circumstance was upheld by the United States Supreme Court in its ruling in Ex Parte Quirin.
But reasonably erasing the boundary between a hostile foreign army and its domestic collaborators necessitates taking another boundary very seriously, the one between war and peace. The idea of giving the American President increased powers during wars has always assumed an unambiguous line between peace and a declared state of war, and a declared wars are not supposed to be permanent states of affairs; they are supposed to be the exceptions, with beginnings and endings that can easily be identified. Staying with the World War II example, when war was declared against Japan and Germany, it was implicitly understood that at some time in the future, something would happen to bring the state of war to an end, something that was more than just a paper declaration. Either leaders from one side who possessed real authority to command the forces doing the fighting would say “we surrender” and issue orders, that would be followed, for their troops to lay down their arms, or parties on both sides would agree to some form of truce. At that point (maybe with an assist from the ratification of a peace treaty or a similar formality), extra powers granted to the executive branch associated with a declaration of war would vanish.
In the case of the present AUMF, what the events are that will signal to everyone that a state of war has ended is far from clear. In part, that is because of how the enemy is defined in the AUMF…
(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.With potential future attacks from “organizations” or even individuals part of the justification for the AUMF, an act from a leader or a group of leaders (for example, Osama Bin Laden catching a hailstorm of bullets with his head) that would make it clear that the conditions necessitating the AUMF have passed is difficult to define. Indeed, it is not even certain whether some of the “organizations” associated with Islamist terrorism have a command and control structure that would allow for any set of leaders to offer an efficacious surrender.
For people concerned about how aggressively pursuing enemies foreign potentially increases Presidential power at the expense of domestic liberty, in the end, the issue of importance isn’t what the 2012 NDAA affirms, building on the grant of authority in the AUMF. The issue is the AUMF itself. The NDAA’s reaffirmation of the AUMF doesn’t impact much of anything, and a legislative victory that changed the NDAA but ignored the AUMF wouldn’t diminish the increased war-powers that have been granted to the President by Congress. At some point, Congress is going to have to grapple with the issue of whether conditions that justify the AUMF remaining in force still exist, or whether it needs to be repealed or superseded by new legislation.