The National Defense Authorization Act (NDAA) for Fiscal Year 2012112th Congress, 1st Session, H1540CR.HSE: "National Defense Authorization Act for Fiscal Year 2012." () is a United States federal law which, among other things, specified the budget and expenditures of the United States Department of Defense. The bill passed the U.S. House on December 14, 2011 and passed the U.S. Senate on December 15, 2011. The act, which marked the fiftieth consecutive year in which a National Defense Authorization Act had been passed,United States Senate Committee on Armed Services, Completion of Conference with The House of Representatives on H.R. 1540, National Defense Authorization Act for Fiscal Year 2012, published on 12 December 2011, accessed on 2 January 2022 was signed into law on December 31, 2011 by President Barack Obama.
In a signing statement, President Obama described the Act as addressing national security programs, Department of Defense health care costs, counter-terrorism within the United States and abroad, and military modernization.“President Obama's signing statement”, "White House Press Office", December 31, 2011 The Act also imposed new economic sanctions against Iran (section 1245), commissioned appraisals of the military capabilities of countries such as Iran, China, and Russia,Sections 1232 and 1240. and refocused the strategic goals of NATO towards "energy security".Section 1233 from H1540CR.HSE: "National Defense Authorization Act for Fiscal Year 2012.". The Act increased pay for military service members and gave governors the ability to request the help of military reservists in the event of a hurricane, earthquake, flood, terrorist attack, or other disaster.
The Act contains controversial language allowing the indefinite military detention of persons the government suspects of involvement in terrorism, including U.S. citizens arrested on American soil. Although the White House and Senate sponsors of the Act maintained that the Authorization for Use of Military Force (AUMF) already allowed indefinite detention, the Act "affirms" this authority and makes specific provisions as to its exercise.Khalek, Rania, "Global Battlefield' Provision Allowing Indefinite Detention of Citizens Accused of Terror Could Pass This Week", Alternet, December 13, 2011.Library of Congress THOMAS. H.R. 1540 – National Defense Authorization Act for fiscal year 2012 Versions of H.R.1540 . The detention provisions of the Act have received critical attention from the American Civil Liberties Union (ACLU), the Bill of Rights Defense Committee, and media sources which are concerned about the scope of the President's authority.Carter, Tom "US Senators back law authorizing indefinite military detention without trial or charge," World Socialist Web Site, December 2, 2011. The detention powers contained within the Act faced legal challenge.
Legislative process Actions from the White House and Senate leading to the vote The White House threatened to veto the Senate version of the Act, arguing in an executive statement on November 17, 2011, that while "the authorities granted by the Authorization for Use of Military Force Against Terrorists, including the detention authority ... are essential to our ability to protect the American people ... (and) Because the authorities codified in this section already exist, the Administration does not believe codification is necessary and poses some risk".
The statement furthermore objected to the mandate for "military custody for a certain class of terrorism suspects", which it called inconsistent with "the fundamental American principle that our military does not patrol our streets". The White House may now waive the requirement for military custody for some detainees following a review by appointed officials including the Attorney General, the secretaries of state, defense and homeland security, the chairman of the military's Joint Chiefs of Staff and the director of national intelligence.
During debate within the Senate and before the Act's passage, Senator Mark Udall introduced an amendment interpreted by the ACLU and some news sources as an effort to limit military detention of American citizens indefinitely and without trial. The amendment proposed to strike the section "Detainee Matters" from the bill, and replace section 1021 (then titled 1031) with a provision requiring the Administration to clarify the Executive's authority to detain suspects on the basis of the 2001 Authorization for Use of Military Force Against Terrorists.Udall Amendment Text for SA 1107. The amendment was rejected by a vote of 60–38 (with 2 abstaining). Udall subsequently voted for the Act in the joint session of Congress that passed it, and though he remained "extremely troubled" by the detainee provisions, he promised to "push Congress to conduct the maximum amount of oversight possible"."Despite concerns, Udall gives nod to Defense Authorization bill." Denver Post, December 15, 2011.
The Senate later adopted by a 98 to 1 vote a compromise amendment, based upon a proposal by Senator Dianne Feinstein, which preserves current law concerning U.S. citizens and lawful resident aliens detained within the United States.Gerstein, Josh, "Senate Votes to Allow Indefinite Detention of Americans." Politico, December 1, 2011. After a Senate–House compromise text explicitly ruled out any limitation of the President's authorities, but also removed the requirement of military detention for terrorism suspects arrested in the United States, the White House issued a statement saying that it would not veto the bill. The joint Senate-House conference reported on 12 December 2011. The conference report directed the Government Accountability Office to report for three years on the Department of Defense's use of competitive tendering procedures for military acquisition, for which reports were completed in 2013, 2014, and 2015.GAO, Defense Contracting: DOD’s Use of Competitive Procedures, published on 1 May 2015, accessed on 17 November 2025
In his Signing Statement, President Obama explained: "I have signed the Act chiefly because it authorizes funding for the defense of the United States and its interests abroad, crucial services for service members and their families, and vital national security programs that must be renewed ... I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists".
The vote
On December 14, 2011, the bill passed the U.S. House by a vote of 283 to 136, with 19 representatives not voting, and passed by the U.S. Senate on December 15, 2011, by a vote of 86 to 13.
Contents Section 818 This section contains "critical provisions" reflecting a bipartisan amendment regarding counterfeit electronic parts in the Defense Department's supply chain, adopted following concerns raised by Senators Carl Levin and John McCain, chairman and ranking member respectively of the Senate Committee on Armed Services, regarding counterfeit electronic parts highlighted in an investigation commenced in March 2011,Senate Armed Services Committee, Senate Armed Services Committee Announces Investigation into Counterfeit Electronic Parts in DOD Supply Chain, published 9 March 2011, accessed 2 January 2022 which found that 1,800 cases of suspected counterfeit components were in use within over 1 million individual products".Trace Laboratories, Inc., Counterfeit Electronic Components: Understanding the Risk, accessed 4 January 2022 Further year-long work undertaken by the Senate Committee and contained in a report on counterfeit parts in the Department of Defense supply chain released on 12 May 2012 showed that counterfeit electronic parts of Chinese origin had been found in the Air Force's C-130J and C-27J cargo planes, in assemblies used in the Navy's SH-60B helicopter, and in the Navy's P-8A surveillance plane, among 1800 cases identified.Nash-Hoff, M. Senate Report Reveals Extent of Chinese Counterfeit Parts in Defense Industry, published 31 May 2012, accessed 12 March 2022
Detention without trial: Section 1021 The detention sections of the NDAA begin by "affirm[ing]" that the authority of the President under the Authorization for Use of Military Force Against Terrorists (AUMF), a joint resolution passed in the immediate aftermath of the September 11, 2001 attacks, includes the power to detain, via the Armed Forces, any person, including a U.S. citizen, "who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners", and anyone who commits a "belligerent act" against the United States or its coalition allies in aid of such enemy forces, under the law of war, "without trial, until the end of the hostilities authorized by the [AUMF]". The text authorizes trial by military tribunal, or "transfer to the custody or control of the person's country of origin", or transfer to "any other foreign country, or any other foreign entity".112th Congress, 1st Session, H1540CR.HSE: "National Defense Authorization Act for Fiscal Year 2012." pp. 265–266.
Addressing previous conflicts with the Obama Administration regarding the wording of the Senate text, the Senate–House compromise text, in sub-section 1021(d), also affirms that nothing in the Act "is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force". The final version of the bill also provides, in sub-section(e), that "Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States". As reflected in Senate debate over the bill, there is a great deal of controversy over the status of existing law.
An amendment to the Act that would have replaced current text with a requirement for executive clarification of detention authorities was rejected by the Senate."Senate Poised to Pass Indefinite Detention Without Charge or Trial", American Civil Liberties Union, December 1, 2011. According to Senator Carl Levin, "the language which precluded the application of section 1031 to American Citizens was in the bill that we originally approved in the Armed Services Committee and the Administration asked us to remove the language which says that U.S. citizens and lawful residents would not be subject to this section". The Senator refers to section 1021 as "1031" because it was section 1031 at the time of his speaking.
Requirement for military custody: Section 1022
All persons arrested and detained according to the provisions of section 1021, including those detained on U.S. soil, whether detained indefinitely or not, are required to be held by the United States Armed Forces. The law affords the option to have U.S. citizens detained by the armed forces but this requirement does not extend to them, as with foreign persons. Lawful resident aliens may or may not be required to be detained by the Armed Forces, "on the basis of conduct taking place within the United States".McGreal, Chris, "Military given go-ahead to detain US terrorist suspects without trial," The Guardian, 14 December 2011: .