Posted by on June 18, 2013 in Blog

By Isaac Levey

AAI Summer Legal Fellow

Last Friday the House of Representatives passed the National Defense Authorization Act (NDAA), the annual authorization bill for the Department of Defense. The NDAA authorizes $638 billion in mandatory and discretionary spending by the Pentagon and its agencies, and passed by a vote of 315-108. Over two days, the House considered 175 amendments to the bill. Many simply expressed statements of policy, or represented Members of Congress doing favors to constituents and campaign contributors, but some of the proposed measures are worthy of examination.

A bipartisan amendment offered by Reps. Adam Smith (D-Wash.) and Chris Gibson (R-N.Y.) would have outlawed military detention of any person in the United States under the Authorization for the Use of Military Force (AUMF), a proposal which would not change current executive branch policy. I’ve previously discussed in more detail why this common-sense proposal should be explicitly codified in law, but Smith and Gibson’s amendment failed 200-226, with most Members voting along party lines. Instead, the House adopted an amendment by Rep. Bob Goodlatte (R-Va.), Chairman of the Judiciary Committee, which authorizes military detention in the United States under the AUMF, even of United States citizens. This will not change current policy; rather, as I have explained before, legislation like this simply confuses issues and creates a misconception that military detention is an actual possibility for people arrested in the United States. Goodlatte’s proposal snuck through by a vote of 214-211; for unexplained reasons, a number of Democratic Members didn’t vote.

Also disappointing, and similarly unsurprising, were two votes relating to the detention center at Guantánamo Bay, Cuba. We have addressed the necessity of closing Guantánamo many times, but last week the House once again blocked any action on this important issue. They rejected an amendment from Reps. Smith, Jim Moran (D-Va.), and Jerry Nadler (D-N.Y.) that would have begun the process of closing Guantánamo; once again the House practiced the same kind of obstructionism the President has so frequently criticized. As if to make this point, the House also passed an amendment by Rep. Jackie Walorski (R-Ind.) that categorically prohibits the Pentagon from transferring any Guantánamo detainee to Yemen; this is an explicit reversal of the policy the White House announced last month lifting the moratorium on such transfers. The vote on Smith’s amendment was 174-249; Walorski’s passed 236-188.

On the bright side, the NDAA does address one issue we have discussed – the scope of the AUMF. The bill requires an assessment by the Pentagon of the groups it believes currently threaten the United States and its interests, and the House adopted an amendment by Rep. John Conyers (D-Mich.) specifying that the Pentagon must disclose any group it believes it may target as an “associated force” of al-Qaeda under the AUMF. While this is far from perfect (it only requires this assessment once and wouldn’t require informing Congress if the Administration later decides a new group falls under the AUMF), Conyers’ amendment may bring some much-needed transparency to the important question of just whom the United States is at war with. Still, the Conyers amendment is small consolation as the House continues its pattern of rejecting common-sense policy changes in preference for adherence to the status quo.

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