Wartime Detention Provisions in Recent Defense Authorization Legislation

The 2012 NDAA authorizes the detention of certain categories of persons and requires the military detention of a subset of them; regulates status determinations for persons held pursuant to the AUMF; regulates periodic review proceedings concerning the continued detention of Guantanamo detainees; and continued funding restrictions that relate to Guantanamo detainee transfers to foreign countries (funding restrictions that were subsequently loosened by the 2014 NDAA). The 2012 NDAA continued the bar on the use of Department of Defense (DOD) funds to transfer detainees from Guantanamo into the United States for trial or other purposes (a bar that Congress has extended through subsequent appropriations and defense authorization enactments), and although it does not directly bar criminal trials for terrorism suspects, it requires the Attorney General to consult with the Defense Department and Director of National Intelligence prior to bringing charges or seeking an indictment in certain cases.