Support Due Process: Repeal Sections 1021 and 1022 of the NDAA

Legislative Fact Sheet

(February 2012)

The Issue

  • The National Defense Authorization Act of 2012 (NDAA) was signed into law by President Obama on December 31, 2011. The law authorizes the U.S. military to carry out domestic anti-terrorism operations and indefinitely detain Americans and others suspected of terrorism without charge or trial.
  • Section 1021 of the NDAA vaguely endorses the claimed presidential authority to indefinitely detain Americans as enemy combatants under "existing law," i.e. the Authorization to Use Military Force Act.
  • Section 1021 of the NDAA explicitly allows for the indefinite detention of Americans captured abroad, as well as foreigners.
  • Section 1022 of the NDAA authorizes the indefinite military detention of Americans. While this section does not require the military to detain U.S. citizens, the authority or option to do so remains.*
  • The power to indefinitely detain individuals under the NDAA remains "until the end of hostilities" -- an indefinite and undetermined length of time. 
  • The NDAA is unconstitutional as it disregards the Fifth Amendment guarantee of due process for "all persons" and the Sixth Amendment right to a fair and speedy trial.

What is being asked of members of Congress?

  • Support and cosponsor legislation that repeals Sections 1021 and 1022 of the NDAA and reaffirms the due process rights of all persons, including American citizens at home and abroad, documented and undocumented residents, and persons in U.S. custody.
  • Amend legislation that has already been introduced to reaffirm the due process rights of all persons. There is no freedom, justice or equality in maintaining the rights of the majority over the rights of the few.

Reasons to support

  • There is strong bipartisan support for legislation that addresses the NDAA's detention provisions. Several acts have already been introduced by Republicans and Democrats in the House and Senate.
  • The U.S. Constitution already provides all the necessary tools to safeguard the nation from enemies both foreign and domestic. Those who would attempt to do our nation harm should be arrested without hesitation, charged, tried, and, if convicted, punished to the full extent of the law. Those who are falsely accused of supporting such hostilities rely on the Constitution to protect them.
  • Congress is supposed to check the president's power, not expand it. Many leaders in congress and the civil rights community believe that granting such detention powers is an overreach of executive authority.
  • The NDAA leaves too much to presidential interpretation. President Obama's signing statement already suggests that he believes his administration has the authority to indefinitely detain Americans -- only that he chooses to not use it. Furthermore, no guarantee exists that future administrations will not interpret the law to do so.
  • It is unconstitutional for the military to arrest and indefinitely detain all persons inside the U.S. To deny any person the right to due process in the name of national security makes our nation less free, but not more secure.
  • Only 1 in 4 likely voters actually approved of the NDAA according to an IBOPE Zogby Interactive survey conducted in January 2012.

CAIR analysis of section 1022 of the national defense authorization act of 2012

National Defense Authorization Act of 2012 Public Law No: 112-81

TITLE X--GENERAL PROVISIONS Subtitle D--Counterterrorism Sec. 1022. Military custody for foreign al-Qaeda terrorists. Subparagraph (b)(1)

Section 1022 of the NDAA authorizes the indefinite military detention of Americans. While under this section the requirement to detain a person in military custody does not apply to U.S. citizens, CAIR legal counsel believes that the authority or option to do so remains.

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