2013 NDAA: Feinstein amendment hurts, not helps
We have noted the confusion over whether the 2012 National Defense Authorization Act (NDAA) allows for the indefinite detention of persons apprehended on US soil. Now it appears that an effort by Sen. Dianne Feinstein to clarify the question in the upcoming 2013 NDAA is so poorly worded that it unintentionally (?) makes matters worse. Feinstein's proposed amendment (online as a PDF at the Lawfare blog) states that:
An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen of lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention.
A joint statement by the American Civil Liberties Union, Amnesty International, Center for Constitutional Rights, Center for Victims of Torture, Bill of Rights Defense Committee and other groups (online as a PDF at the ACLU website) protests:
Unfortunately, the Feinstein amendment fails to address a central concern raised in the public debates: the specter of the military being used to police our streets and detain individuals on US soil. The bill also unintentionally reinforces the false and discriminatory notion that due process protections are only afforded to some—not all—persons within the United States. For these reasons, while we very much want to work with the sponsors of the amendment and are open to supporting a revised version of the Feinstein amendment, we oppose the amendment in its current form.
The constitutional requirements of due process of law apply to all persons within the United States. The 5th Amendment to the Constitution states that "No person shall be...deprived of...liberty...without due process of law." Moreover, we are very concerned that the Feinstein amendment implicitly authorizes domestic military detention. By seeking to protect only United States citizens and legal permanent residents, the amendment could be read to imply that indefinite military detention of any other persons apprehended within the United States was authorized in 2001 and was lawful. In addition, the clause "unless an Act of Congress expressly authorizes such detention" could be read to imply that there are no constitutional obstacles to Congress enacting a statute that would authorize the domestic military detention of any person in the United States.
We will note that the proposed amnedment two paragraphs down does make reference to "any other person who is apprehended in the United States," so maybe it merely recapitulates the restrictions already in the 2012 NDAA. But it certainly does no more.
Legal scholar Steve Vladeck on the Lawfare blog questions the supposed bedrock on which the whole doctrine of indefinite detention stands. He argues that, contrary to both the new and old NDAA, the post-9-11 Authorization for Use of Military Force (AUMF) "doesn't 'expressly authorize' the detention of anyone, regardless of their citizenship or site of capture." Perhaps not, but it has certainly been construed that way, so maybe this interpretation has now been enshrined in case law? Vladeck begs to differ. He points out that his view was upheld by the Second Circuit in Padilla v. Rumsfled (text), which found the AUMF "is not such an authorization."
(That case was brought by Jose Padilla in 2007 to challenge his detention; a backgrounder on the case at Oyez informs us that after the Second Circuit ruled for Padilla, the Supreme Court ruled that that case had been improperly filed in New York despite the fact that Padilla was detained at a military brig in South Carolina. An ACLU backgrounder informs us that after the case was refiled in South Carolina, both the Fourth Circuit and the Supreme Court let stand a district court's dismissal. So while the only actual ruling in the case found for Padilla, he nonetheless remained in detention. Kafkaesque enough for you?)
Vladeck also asserts that AUMF's supposed authorization of indefinite detention was not upheld in Hamdi v. Rumsfeld, stating that in its 2004 ruling the Supreme Court only found that the AUMF "satisfied the Non-Detention Act in the specific case" of a US citizen captured on the battlefield in Afghanistan. (The Non-Detention Act of 1971 was intended to undo the Cold War-era excesses of the 1950 Emergency Detention Act, according to a 2005 Congressional Research Service report online as a PDF. The Hamdi case, which we discussed here and here, concerned detainee Yaser Esam Hamdi, released after the Supreme Court ruled that he had the right to habeas corpus review in the US civil courts.)
All of this is rather dancing around the critical point of when we can expect the AUMF to expire. It is now 11 years old—far longer than any previous foreign military engagement in US history. Whatever it may or may not do—is it going to be in effect forever? Al Jazeera on Dec. 1 noted that an end to the AUMF was actually broached by Pentagon General Counsel Jeh Johnson (who has before protested Congressional restrictions on the transfer of Gitmo detainees). Johnson rhetorically asked in an address at Oxford University: "Now that efforts by the US military against al-Qaeda are in their 12th year, we must also ask ourselves: How will this conflict end?"
We'd like to know too, Jeh.