The Road to the NDAA

More than two weeks after the bill’s passage, President Barack Obama signed the National Defense Authorization Act (NDAA) into law last Saturday in the late afternoon.  His decision to sign the bill at a moment unconducive to press attention was probably intentional; the NDAA has been the object of increasing critical scrutiny, with the president himself publicly acknowledging some of the bill’s flaws.

In a statement that accompanied his signature, President Obama said that even though the bill had been revised in congressional negotiations, he still had “serious reservations” about NDAA provisions that regulate the detention, interrogation and prosecution of suspected terrorists.  He explained that he had signed the more than 500-page defense bill because of its military funding provisions, despite these continuing concerns.

Obama’s signature brings an official end to a legislative process that began last March, when Representative Buck McKeon and Senator John McCain introduced bills designed to shift counterterrorism responsibilities from law enforcement to the military.  (My previous column explains the legislative history of the NDAA’s detention provisions in greater detail.) These bills were grafted onto the NDAA, and revised, under threat of a presidential veto, in House and Senate committees.

But while the president’s signing statement includes several references that suggest that the new law, if interpreted broadly, might threaten core American values, Obama himself arguably helped open the door for this legislation earlier this year with his executive order on the indefinite detention of prisoners at Guantanamo.

When future historians inquire into how the practice of indefinite military detention without trial became formally entrenched in a country with such strong constitutional safeguards and stringent criminal justice guarantees, they will find that it did not happen all at once, but rather via a series of incremental steps.  President Obama is now responsible for three of them.

The first was to justify indefinite detention in litigation opposing the release of detainees held at Guantanamo; the second was to issue an executive order on indefinite detention, and the third was to sign the NDAA.

The Road to the NDAA

It was President George W. Bush, together with Vice-President Dick Cheney, Defense Secretary Donald Rumsfeld, and a host of other senior Bush administration officials who took the most radical and important steps toward establishing indefinite detention without trial as a mainstay of the US approach to fighting terrorism.  But the Bush administration, preferring to act unilaterally, did not even bother to seek congressional sanction for its indefinite detention schemes.  It established Guantanamo on its own, held American citizens without charge in the absence of a legislative mandate to do so, and fought judicial oversight tooth and nail.

Obama entered office as a reformer, promising to close Guantanamo within a year.  Yet, disappointingly, the first signs of...