Fact Check

National Defense Authorization Act

Would the National Defense Authorization Act allow 'the U.S. Military to arrest American citizens in their own back yard without charge or trial'?

Published Dec. 14, 2011

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The National Defense Authorization Act would allow "the U.S. Military to arrest American citizens in their own back yard without charge or trial."

Lawmakers and the public have expressed concerns over provisions inserted into the annual National Defense Authorization Act (NDA)), a defense appropriations bill, which would mandate military interrogation and detention for any suspected member of Al Qaeda and authorize indefinite detention of terrorist suspects without trial:

Example:   [Collected via e-mail, November 2011]]

The Senate is set to vote on a bill today that would define the whole of
the United States as a “battlefield” and allow the U.S. Military to
arrest American citizens in their own back yard without charge or trial.

"The Senate is going to vote on whether Congress will give this
president — and every future president — the power to order the military
to pick up and imprison without charge or trial civilians anywhere in the
world. The power is so broad that even U.S. citizens could be swept up by
the military and the military could be used far from any battlefield, even
within the United States itself," writes Chris Anders of the ACLU
Washington Legislative Office.

Under the 'worldwide indefinite detention without charge or trial'
provision of S.1867, the National Defense Authorization Act bill, which is
set to be up for a vote on the Senate floor this week, the legislation
will "basically say in law for the first time that the homeland is part
of the battlefield," said Sen. Lindsey Graham (R-S.C.), who supports the

The bill was drafted in secret by Senators Carl Levin (D-Mich.) and John
McCain (R-Ariz.), before being passed in a closed-door committee meeting
without any kind of hearing. The language appears in sections 1031 and
1032 of the NDAA bill.

"I would also point out that these provisions raise serious questions as
to who we are as a society and what our Constitution seeks to protect,"
Colorado Senator Mark Udall said in a speech last week. "One section of
these provisions, section 1031, would be interpreted as allowing the
military to capture and indefinitely detain American citizens on U.S.
soil. Section 1031 essentially repeals the Posse Comitatus Act of 1878 by
authorizing the U.S. military to perform law enforcement functions on
American soil. That alone should alarm my colleagues on both sides of the
aisle, but there are other problems with these provisions that must be

This means Americans could be declared domestic terrorists and thrown in a
military brig with no recourse whatsoever. Given that the Department of
Homeland Security has characterized behavior such as buying gold, owning
guns, using a watch or binoculars, donating to charity, using the
telephone or email to find information, using cash, and all manner of
mundane behaviors as potential indicators of domestic terrorism, such a
provision would be wide open to abuse.

"American citizens and people picked up on American or Canadian or
British streets being sent to military prisons indefinitely without even
being charged with a crime. Really? Does anyone think this is a good idea?
And why now?" asks Anders.

The ACLU is urging citizens to call their Senator and demand that the
Udall Amendment be added to the bill, a change that would at least act as
a check to prevent Americans being snatched off the streets without some
form of Congressional oversight.

We have been warning for over a decade that Americans would become the
target of laws supposedly aimed at terrorists and enemy combatants. Alex
Jones personally documented how U.S. troops were being trained to arrest
U.S. citizens in the event of martial law during urban warfare training
drills back in the 90's. Under the the National Defense Authorization
Act bill, no declaration of martial law is necessary since Americans would
now be subject to the same treatment as suspected insurgents in places
like Afghanistan and Iraq.

If you thought that the executive assassination of American citizens
abroad was bad enough, now similar powers will be extended to the
"homeland," in other words, your town, your community, your back yard.

Critics expressed concern that these provisions would virtually eliminate the role of federal law enforcement (i.e., F.B.I., federal prosecutors, and federal courts) in dealing with terrorist suspects, and that the provisions would worded so broadly that they could be applied to Americans and legal residents of the United States, allowing U.S. citizens to be seized and held in indefinite military custody.

An amendment to the NDAA proposed by Senator Mark Udall of Colorado would have stripped the detainee measures out of the NDAA, but that proposal was defeated in the Senate.

Critics of the bill maintain that section 1021 is overly broad in its wording because it allows for the detention of "covered persons pending disposition under the law of war" but does not preclude indefinite detention. As well, Section 1022 makes military custody mandatory for a subset of detainees, and although that section does include an exception for U.S. citizens and legal permanent residents, critics maintain that the exception does not prevent U.S. citizens from being detained by the military; it merely does not require the military to detain U.S. citizens.

The original version of the NDAA allowed for the issuance of waivers granting exceptions to mandated military custody of Al Qaeda suspects if the secretary of defense, the attorney general, and the head of national intelligence all agreed. President Obama initially threatened to veto the NDAA, but then indicated he would agree to sign a revised version that allowed the president to issue such waivers on his own and no longer explicitly banned the use of civilian courts in prosecuting Al Qaeda suspects.

President Obama signed the NDAA at the end of 2011, stating in his signing statement that he disagreed with the necessity of its detention provisions and asserting that his "Administration will not authorize the indefinite military detention without trial of American citizens" because "doing so would break with our most important traditions and values as a Nation," promising that his "Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law":

The fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists.

Section 1021 affirms the executive branch's authority to detain persons covered by the 2001 Authorization for Use of Military Force (AUMF) (Public Law 107-40; 50 U.S.C. 1541 note). This section breaks no new ground and is unnecessary.

Section 1022 seeks to require military custody for a narrow category of non-citizen detainees who are "captured in the course of hostilities authorized by the Authorization for Use of Military Force." This section is ill-conceived and will do nothing to improve the security of the United States. The executive branch already has the authority to detain in military custody those members of al-Qa'ida who are captured in the course of hostilities authorized by the AUMF, and as Commander in Chief I have directed the military to do so where appropriate. I reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat. While section 1022 is unnecessary and has the potential to create uncertainty, I have signed the bill because I believe that this section can be interpreted and applied in a manner that avoids undue harm to our current operations.

David Mikkelson founded the site now known as snopes.com back in 1994.