National Defense Authorization Act (NDAA)

The NDAA is the annual legislation that funds and governs the United States military, covering everything from troop pay and equipment procurement to base closures and force structure decisions. Congress has passed an NDAA every year since 1961 — it is considered must-pass legislation because without it, the military cannot be funded. The bills routinely run to hundreds of pages and contain major policy provisions that attract far less attention than the budget numbers. Major structural policies — from transgender service member rules to domestic surveillance authorities — have been created, expanded, or eliminated through NDAA provisions.

Section 1021 of the NDAA for Fiscal Year 2012 (signed by President Obama on December 31, 2011) is the most constitutionally contested provision in the Act's history. It affirmed the President's authority under the 2001 Authorization for Use of Military Force (AUMF) to detain 'covered persons' — including 'a person who was a part of or substantially supported' al-Qaeda, the Taliban, or 'associated forces' — until the end of hostilities. Subsection (b)(1) explicitly applied this detention authority to US citizens and lawful permanent residents on US soil, if captured in the United States. Unlike criminal detention, this military detention is without charge or trial.

The indefinite detention provision generated significant litigation. In Hedges v. Obama (2012), journalist Chris Hedges and other plaintiffs filed suit arguing Section 1021 chilled First Amendment activity and threatened First Amendment-protected journalism. A federal district court issued an injunction against enforcement, finding the provision unconstitutionally vague — but the Second Circuit reversed on standing grounds, declining to reach the merits. The Supreme Court declined to hear the case. Section 1021 has never been applied to detain a US citizen, but its existence on the books means the authority persists.