Battlefield USA?…Senate NDAA, sec. 1031 and sec. 1032

I am late to the news on this one from yesterday, but want to make sure the provisions are noted and up for discussion.

Link to Thomas for S.1867.

Benjamin Wittes from Brookings has commentary worth reading. I have only included language used in the bill here.

Senate NDAA Thought #1 by Benjamin Wittes

The Senate’s NDAA language on detainee matters, about which I have previously written here and here, is now available. I have two additional thoughts on the Senate language–the first of which I will lay out in this post. It concerns Section 1032, the mandatory military detention provision I described–and bewailed–in my earlier post. I want to give a good faith effort in this post to imagine how this provision, if enacted, would function in practice. I think the most likely answer is that it would be an unmitigated disaster at an operational level. But there’s a slight wrinkle. Depending on the Executive Branch’s bureaucratic response to it, there is a vague possibility that it would have almost no impact at all.

The provision reads in its entirety as follows:


    (a) Custody Pending Disposition Under Law of War-

    (1) IN GENERAL- Except as provided in paragraph (4), the Armed Forces of the United States shall hold a person described in paragraph (2) in military custody as an unprivileged enemy belligerent pending disposition under the law of war.

    (2) APPLICABILITY TO AL-QAEDA AND AFFILIATED ENTITIES- The requirement in paragraph (1) shall apply to any covered person under section 1031(b) who is determined to be–

    (A) a member of, or part of, al-Qaeda or an affiliated entity; and

    (B) a participant in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.

(3) DISPOSITION UNDER LAW OF WAR- For purposes of this subsection, the disposition of a person under the law of war has the meaning given in section 1031(c), except that no transfer otherwise described in paragraph (4) of that section shall be made unless consistent with the requirements of section 1033.

(4) WAIVER FOR NATIONAL SECURITY- The Secretary of Defense may, in consultation with the Secretary of State and the Director of National Intelligence, waive the requirement of paragraph (1) if the Secretary submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.

(b) Requirement Inapplicable to United States Citizens- The requirement to detain a person in military custody under this section does not extend to citizens of the United States.

(c) Effective Date- This section shall take effect on the date of the enactment of this Act, and shall apply with respect to persons described in subsection (a)(2) who are taken into the custody or brought under the control of the United States on or after that date.

The “dispositions under the laws of war” laid out in Section 1031(c) include:

(1) Long-term detention under the law of war without trial until the end of hostilities against the nations, organizations, and persons subject to the Authorization for Use of Military Force.

(2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)).

(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.

(4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.