What’s Really in the National Defense Authorization Act?

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Friday morning, I posted on Twitter and Facebook that the House of Representatives had passed the National Defense Authorization Act for Fiscal Year 2018 by a vote of 334-81. I thought it would be cause for comment on how rare this kind of bipartisan agreement is in Washington these days. I was wrong.

A friend whom I’ve known since childhood posted a disappointing comment. Although he now lives in the Heartland, this person is someone who, with the exception of his political affiliation, fits almost anyone’s definition of a “coastal elite.” He was raised in a pastoral, affluent New England town, educated at a private high school and a small liberal arts college, and has a white collar job.

But despite this background, he is one of the many people of all backgrounds who fundamentally misunderstands the NDAA and its purpose. I’ve been giving updates on the FY2018 NDAA’s progress in Daily Intel since June 12, when I addressed this misunderstanding. Clearly, it’s a topic that needs further discussion.

FAKE NEWS OVER INDEFINITE DETENTION

I asked my friend what he thought the NDAA entailed. He replied, “authorizing the indefinite military detention of civilians, including U.S. citizens, without habeas corpus or due process, contained in the Authorization for Use of Military Force.”

This misinformation—some might say willful ignorance—of the only piece of legislation the Congress has passed every year since 1961 despite several changes in party control, and is the one thing that unites fans of Alex Jones and Mother Jones. It is “fake news” of the highest order. And it has to stop.

The controversy began in 2011, as Congress was debating the FY 2012 bill. It involves two sections that span fewer than three of the bill’s 565 total pages. Section 1021 affirmed the military’s authority to detain “covered persons” pursuant to the 2001 AUMF. It defined covered persons as either someone “who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks,” or “who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces…”

Section 1022 required that anyone “who is captured in the course of hostilities” be held “in military custody pending disposition under the law of war.” It was intended to clarify that those detained during combat were not being held on criminal charges that required reading them their Miranda rights.

Both of these sections explicitly state that they do not supersede existing legal protections enjoyed by American citizens and that they do not grant authority to detain people on U.S. soil. Congress further reinforced this fact in the FY 2013 NDAA. But despite these explicit protections, that is exactly how the provisions have been portrayed.

President Obama issued a lengthy “signing statement” that focused on these two provisions. But even the president, who signed the bill despite reservations over these sections, acknowledged that Section 1021 “does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF.”

The president’s statement also acknowledges that Section 1022 “provides the executive branch with broad authority to determine how best to implement it,” including the ability to waive the provisions in the interest of national security.

THE NDAA IS SO MUCH MORE THAN THESE SECTIONS

It is one thing to disagree and debate over the legal implications of sections 1021 and 1022. Reasonable people can interpret laws differently. It is an entirely different matter to reduce a vital piece of annual legislation to two controversial provisions in a bill passed almost six years ago.

As we’ve discussed here, the NDAA sets the end strengths of the armed services (how many soldiers, sailors, airmen and Marines may be in uniform at one time), sets the level of military pay, authorizes procurement of equipment and services, determines the Pentagon’s organization, and establishes other national security policies. It is the vehicle through which Congress exercises its Constitutional obligation to “raise and support Armies,” to “provide and maintain a Navy,” and to “make Rules for the Government and Regulation of the land and naval Forces.”

To military policy wonks, NDAA season is like the Super Bowl, World Series, and Stanley Cup rolled into one. It is the chance to examine the formulation of the policies that will guide the Department of Defense’s operations for the next fiscal year and beyond. Debating those policies the way sports fans debate quarterback ratings is part of the geeky fun.

But it does no one any good to continue to revisit a 2011 controversy every year. Even though the Army continues to recruit “Internment/Resettlement Specialists” (a bureaucratic way of saying “prison guard”), and conduct Jade Helm exercises, those Wal-Mart stores have yet to be converted to detention facilities.

Here’s a hint: they never will be, either.

Tom McCuin is a strategic communication consultant and retired Army Reserve Civil Affairs and Public Affairs officer whose career includes serving with the Malaysian Battle Group in Bosnia, two tours in Afghanistan, and three years in the Office of the Chief of Public Affairs in the Pentagon. When he’s not devouring political news, he enjoys sailboat racing and umpiring Little League games (except the ones his son plays in) in Alexandria, Va. Follow him on Twitter at @tommccuin