I’ve been asked the question as to whether the National Defense Authorization Act (NDAA) permits indefinite detention of US citizens, and whether, if it does, it adds anything to existing law on US citizen detention. The quick one line answer is that, at least in the Senate version of the bill, it permits military detention (and, by implication and absent other considerations of law, detention to the end of hostilities), but only to the extent that existing law already does. The Senate version of the bill says it merely affirms that status quo on this issue.
I am going to crib extensively from Robert Chesney, writing today at Lawfare. (Lawfare, a project of the Brookings Institution and Harvard Law School, and founded by Benjamin Wittes, Robert Chesney, and Jack Goldsmith, is the go-to online daily journal on national security law; careful, measured, never crazy, and scrupulous about separating objective description from prescriptive comment. I serve as the Reviews editor, full disclosure. Lawfare is currently doing a side by side comparison of the House and Senate versions of the bill, if you want the technical details.) Says Chesney regarding military detention of US citizens:
On the day that the Senate passed its version of the NDAA, I wrote a post in the morning addressing whether the bill could be read to affirm that detention authority extends to US citizens. Reading the existing language of section 1031 in conjunction with section 1032, I concluded that the best reading of the bill was: yes, section 1031 encompassed citizens. Later that day, Senator Feinstein offered an amendment to the bill in an effort to preclude that outcome, by explicitly altering section 1031 so as to state clearly that citizens are not included. This amendment failed. Still later, she offered a fall-back amendment, altering section 1031 so as to say that it should not be construed as taking a position on the US citizen question one way or the other. That amendment was adopted, and is now part of the Senate bill as the conference on the NDAA gets underway.
Chesney then goes on to offer three scenarios in which the government could, in theory, attempt to hold a US citizen in military detention. They are important to keep separate, and to attend to Chesney’s conclusion:
There are three scenarios in which the government in theory might try to use military detention with respect to a citizen, and the current state of the law is unclear as to two of them.
First, it might try to detain a citizen who is an arms-bearing member of the enemy’s forces in a foreign combat zone. Hamdi makes clear that detention authority does extend to that situation already, under the AUMF, and that this is constitutionally permissible (which is no surprise, in my view; In re Territo has long been a standard cite for that same proposition).
Second, the government might wish to detain a citizen found here in the United States, alleging involvement in al Qaeda or another AUMF-covered group. This issue arose with Jose Padilla, an al Qaeda member and U.S. citizen who was arrested on arrival at O’Hare Airport in Chicago and then eventually held for long period in military custody. He challenged that detention through a habeas petition, with mixed results. Suffice to say that the district judge felt that detention authority did not extend to this scenario, that the Fourth Circuit panel hearing his case somewhat avoided the issue by emphasizing the idea that Padilla previously had born arms on the combat zone in Afghanistan and thus was actually similarly-situated to Hamdi, that some observers were confident the Supreme Court would reverse, and that we never found out because Padilla was transferred to civilian custody in order to face prosecution (he was duly convicted and is now in jail). A similar case involving a non-citizen captured in the United States, Ali Salah Kahleh al-Marri, produced a similar result. In short, this is exactly what folks mean when they say that the status quo is unsettled on the question of authority to detain within the U.S.
A third scenario would involve an attempt by the government to hold in military custody a citizen linked to an AUMF-covered group who is captured outside the United States, but not in a hot battlefield context and lacking any prior connection to such combat operations. Say, for example, that Anwar al-Awlaki had been captured in a Special Forces raid in Yemen, rather than killed in a drone strike. We’ve not had a case like that yet, so it seems to me we’d have to say the law is at least somewhat unsettled as well.
So what does the NDAA have to say about any of this? Nothing at this point, thanks to the Feinstein amendment. For better or worse, the Senate version is explicitly agnostic as to these matters. If it is enacted with that qualification, then the government will be no more and no less able than before to assert detention authority over citizens, and the courts should be no more and no less likely to rule on the matter one way or the other.
So, strictly speaking, that describes military detention. But the original question was about indefinite detention, so let’s be clear on the relationship. Military detention points to at least the possibility of indefinite detention in this context because, broadly speaking, valid military detention is allowed until the conclusion of hostilities, which makes it potentially indefinite even without charges, trial, or judicial review, and absent any other consideration of law. Here, from an earlier Chesney post at Lawfare, is how Feinstein described the conundrum and her own amendment to the Senate version of the bill (I’ve added some italics):
Despite my [Senator Feinstein's] support for a general detention authority, the provision in the original bill, in our view, went too far. The bill before us would allow the government to detain U.S. citizens without charge until the end of hostilities. We have had long discussions on this. The disagreement arises from different interpretations of what the current law is. The sponsors of the bill believe that current law authorizes the detention of U.S. citizens arrested within the United States, without trial, until “the end of the hostilities” which, in my view, is indefinitely.
Others of us believe that current law, including the Non-Detention Act that was enacted in 1971, does not authorize such indefinite detention of U.S. citizens arrested domestically. The sponsors believe that the Supreme Court’s Hamdi case supports their position, while others of us believe that Hamdi, by the plurality opinion’s express terms, was limited to the circumstance of U.S. citizens arrested on the battlefield in Afghanistan, and does not extend to U.S. citizens arrested domestically. And our concern was that section 1031 of the bill as originally drafted could be interpreted as endorsing the broader interpretation of Hamdi and other authorities.
So our purpose in the second amendment, number 1456, is essentially to declare a truce, to provide that section 1031 of this bill does not change existing law, whichever side’s view is the correct one. So the sponsors can read Hamdi and other authorities broadly, and opponents can read it more narrowly, and this bill does not endorse either side’s interpretation, but leaves it to the courts to decide.
Because the distinguished chairman, the distinguished ranking member, and the Senator from South Carolina assert that it is not their intent in section 1031 to change current law, these discussions went on and on and they resulted in two amendments: our original amendment, which covers only U.S. citizens, which says they cannot be held without charge or trial, and a compromise amendment to preserve current law, which I shall read:
On page 360, between lines 21 and 22, insert the following:
“Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens or lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.”
This compromise amendment passed in the Senate version of the bill. As Chesney notes in this earlier post, there are other considerations of law regarding detention in any case, so that any detention authority has to be qualified at a minimum by habeas rights. (Chesney is responding here to an article by Conor Friedersdorf at the Atlantic; he quotes from Friedersdorf’s claim that the NDAA would allow the President to indefinitely detain even US citizens without judicial review):
Specifically, [Friedersdorf] suggests that the bill authorizes the president to detain anyone whom the president simply declares to be a terrorist, without judicial review:
“Congress is poised to affirm that President Obama and his successors can imprison whomever they want, for as long as they want, on no authority but their own, so long as they first assert that the person in question is a terrorist. They needn’t present evidence, or persuade a judge, or get a majority of votes from a jury. Just whispering “he’s a terrorist” is enough. Yes, even if the suspect is an American citizen.”
This is simply not so, however, given the availability of habeas corpus review. Any citizen held in military custody anywhere, regardless of where captured, will have such review. Any non-citizen captured in the United States will have such review. And though there is still uncertainly surrounding the question, it is most likely the case that any non-citizen captured somewhere other than the Afghan combat zone would get habeas review as well. Only combat captures of noncitizens in Afghanistan are, on this view, subject to executive discretion alone, as has literally always been the case in all combat zones in which the U.S. has ever taken prisoners.
Some readers will say in response to this that habeas review is mere window dressing, citing the string of victories the government has enjoyed in the D.C. Circuit of late. I disagree with that view very much. There is a lot of room for debate about whether the Circuit’s jurisprudence draws the line correctly in terms of figuring out what counts as proof that a person has become part of al Qaeda or the Taliban or associated forces, but the idea that the status quo leaves the government with discretion, in practice, to pretextually detain “domestic enemies” is simply not tenable, in my view.
I agree with Chesney’s view on the substantive issues above; there is one clear circumstance in which military detention of US citizens is permitted, and two legally unclear scenarios; there is also habeas review by the courts. The Senate version of the bill does not alter that status quo, but kicks it back to the courts to decide as to the unclear scenarios.
Lastly, I’d add that in virtue of being statutorily prescribed as the court for hearing detainee appeals, the DC Circuit has emerged as something of the US’s de facto national security court; it has been gradually working out the contours and standards of habeas review and all the procedural and evidentiary questions that are implied by that. If you want to follow the jurisprudence of the DC Circuit in these habeas and related cases, Lawfare is required reading for journalists, policy people, academics, and government officials. (I’ve left comments on for this post.)