National Defense Authorization Act (NDAA)

H.R. 4310, the National Defense Authorization Act for Fiscal Year 2013 (FY13 NDAA), passed the House of Representatives on May 18, 2012. The legislation provides the pay, funding and authorities for America’s men and women in uniform, and is the key mechanism by which Congress fulfills its primary constitutional responsibility to “provide for the common defense.”

The FY13 NDAA begins to restore fiscal sanity to the defense budget, reflecting concern about America’s mounting debt, but also ensuring that our armed forces have the resources they need to meet an increasingly dangerous world. It also recognizes that the military has absorbed 50 percent of deficit reduction efforts to date, though it comprises only 20 percent of the federal budget.

The FY13 NDAA provides our war fighters and their families with the care and support they need, deserve, and have earned, while ensuring that proposed drawdown plans do not cut to the heart of the Army and Marine Corps. Vital provisions include:

Troop pay - Authorizes a 1.7 percent pay increase and extends bonuses and special pay for our men and women in uniform.

TRICARE - Restates the firmly-held sense of Congress that prior service to our nation is a pre-payment of healthcare benefits in retirement.  As such, it rejects the President’s proposal to increase some TRICARE fees and establish new TRICARE fees. The President’ budget proposed more than doubling pharmacy co-pays, an annual enrollment fee for the TRICARE for Life benefit for Medicare-eligible retirees, income-based enrollment fees for TRICARE Prime, and an annual enrollment fee for TRICARE Standard and Extra and raising TRICARE Standard and Extra deductibles.

In contrast, the FY13 NDAA includes a modest increase in TRICARE pharmacy co-pays in 2013 and a cap on pharmacy co-pays beginning in 2014 that would allow fees to rise by no more than the annual retiree COLA. This is offset by a five-year pilot program that requires TRICARE for life recipients to obtain refills of maintenance drugs through the TRICARE mail-order program.

The NDAA ensures that America’s military is robust, flexible, and capable. The bill will provide our warfighters with the time, resources, and authorities they need to win the war in Afghanistan and continue to prosecute the wider War on Terror.

Detainee language

This year, through the incorporation of H.R. 4388, Right to Habeas Corpus Act, of which I am a cosponsor, the bill makes clear beyond a shadow of a doubt that every American will have his day in court. The FY13 NDAA also prohibits the transfer of detainees from Guantanamo Bay to the United States and prohibits use of funds to house Guantanamo terrorist detainees in the United States.

Additionally, an amendment was adopted on House Floor that clarifies the 2001 Authorization for Use of Military Force (AUMF) does not deny the writ of habeas corpus or deny any Constitutional rights for persons detained in the United States under the AUMF who are entitled to such rights.

FY12 NDAA

As terrorists have decentralized and sought new safe havens from which to carry out attacks on U.S. soil, Congress acted last year to ensure our military men and women risking their lives to defend us from such attacks on are on solid legal ground. Last year the FY12 NDAA reaffirmed the authority to go after terrorists who are part of or substantially supporting al Qaeda, the Taliban, or associated forces. 

There was a fair amount of inaccurate information and misunderstanding about the FY12 NDAA. There were some misunderstandings related to two provisions involving the detention of Al Qaeda terrorists. Over the past decade, the United States has detained members of Al Qaeda, the Taliban, and associated groups when they have been captured on the battlefield. In fact, some were released and had to be recaptured or killed because they went back to killing American soldiers. Both the Bush and Obama Administrations have detained those individuals who are members of Al Qaeda, the Taliban, and associated groups, and the courts have affirmed the ability to do so under the U.S. Constitution. But, the specific authorization for detention was inferred from the Authorization to Use Military Force; it was not explicitly stated in statute.

The NDAA explicitly stated that authority in statute, on the exact same terms as the courts have recognized it with one exception. The bill added explicit protections for American citizens – even American citizens who have joined Al Qaeda to take up arms against the United States.

Some people have argued that these provisions would allow a President to detain American citizens within the United States indefinitely if he brands them a terrorist. That is not true.

Here are two specific provisions from the bill. Read them yourself.

SUBTITLE D. SEC. 1021. (p. 655)

(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.

SUBTITLE D. SEC. 1022. (p. 657)

(b) APPLICABILITY TO UNITED STATES CITIZENS AND LAWFUL RESIDENT ALIENS.—

    (1) UNITED STATES CITIZENS.—The requirement to detain a person in military custody under this section does not extend to citizens

    of the United States.

If words have meaning, that is about as clear as English can get.

Some of the misunderstanding arose because there have been several versions of the bill language and previous versions did not have all of the protections that were in the final bill. Other misunderstanding came because some groups do not agree with current law. Some of them believe that all Al Qaeda terrorists should have the full constitutional rights of an American citizen, including the right to consult a lawyer, even on the battlefield.

Those debates will continue. But the purpose of this bill was to put into statute the current legal standard agreed upon by two administrations and the courts.

Prior to the passage of the FY13 NDAA with the amended language, for my constituents who believed even further clarity was needed, I cosponsored H.R. 3676 to amend the detainee provisions of the National Defense Authorization Act (NDAA) for Fiscal Year 2012. The legislation would "specifically state that United States citizens may not be detained against their will without all the rights of due process afforded to citizens in a court ordained or established by or under Article III of the Constitution of the United States."

To all of my constituents with whom I spoke personally, as well as those who contacted my office to express their concerns, I was pleased to be able to offer this constructive solution.

FULL BILL TEXT FOLLOWS:

To amend the detainee provisions of the National Defense Authorization Act for Fiscal Year 2012 to specifically state that United States citizens may not be detained against their will without all the rights of due process afforded to citizens in a court ordained or established by or under Article III of the Constitution of the United States.

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. DUE PROCESS RIGHTS OF UNITED STATES CITIZENS.

    (a) Application to Detainee Provisions- Subsection (e) of section 1021 of the National Defense Authorization Act for Fiscal Year 2012 is amended to read as follows:

    `(e) Protections-

        `(1) UNITED STATES CITIZENS- In applying this section and section 1022, no United States citizen may be detained against his or her will without all the rights of due process afforded to the citizen in a court ordained or established by or under Article III of the Constitution of the United States.

        `(2) LAWFUL RESIDENT ALIENS AND OTHER PERSONS IN THE UNITED STATES- Nothing in this section shall be construed to affect existing law or authorities relating to the detention of lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.'.

    (b) Effective Date- The amendment made by subsection (a) shall take effect as of the date of the enactment of the National Defense Authorization Act for Fiscal Year 2012.