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Domestic Military Detention After the (New) Feinstein Amendment

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Friday, November 30, 2012 at 6:57 PM

Wells is exactly right–and Senators Levin and Graham are exactly wrong–about the implications of last night’s Senate vote approving Senator Feinstein’s amendment to the FY2013 National Defense Authorization Act. Wells linked to the amendment, but here is the relevant language of what would be new 18 U.S.C. § 4001(b):

(1) 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 or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention.

(2) Paragraph (1) applies to an authorization to use military force, a declaration of war, or any similar authority enacted before, on, or after the date of the enactment of the [FY2013 NDAA].

(3) Paragraph (1) shall not be construed to authorize the detention of a citizen of the United States, a lawful permanent resident of the United States, or any other person who is apprehended in the United States.

As Wells explained, the Graham/Levin colloquy sought to cast this language as doing exactly the opposite of what it says, i.e., as confirming that U.S. citizens can be detained even within the territorial United States pursuant to the logic of the Supreme Court’s opinion in Hamdi. But as I explain below the fold, the plain text of the bill is simply irreconcilable with that understanding. 

First, whatever else the AUMF says, it just doesn’t “expressly authorize” the detention of anyone, regardless of their citizenship or site of capture. What Hamdi held was that it nevertheless satisfied the Non-Detention Act in the specific case of a U.S. citizens captured on the battlefield in Afghanistan–specifically without subjecting the AUMF to a clear statement rule (that was precisely the objection Justices Souter and Ginsburg raised in their partial concurrence/dissent). As both Wells and Senator Feinstein noted, the only appellate court to ever apply a detention-based clear statement rule to the AUMF found it necessarily wanting… Thus, the proviso in § 4001(b)(1) for statutes expressly authorizing detention simply cannot encompass the detention of ”a citizen or lawful permanent resident of the United States apprehended in the United States,” at least based on the AUMF as interpreted in Hamdi.

Second, that same proviso also does not encompass any detention authority that may be provided by the FY2012 NDAA, which, as I’ve explained in rather nauseating detail previously, does not “expressly authorize” the detention of anyone within the territorial United States–thanks to the “original” Feinstein Amendment, section 1021(e).

Third, as new § 4001(b)(3) makes clear, this amendment also does not provide such authorization, at least with respect to U.S. citizens or LPRs everywhere, or anyone else captured within the territorial United States.  To be sure, this provision (unfortunately, in my view) leaves open the question of how § 4001(b) would apply to (non-LPR) non-citizens picked up outside the territorial United States–although I’m hard-pressed to see any argument that the provision expands such authority as compared to the status quo. For present purposes, though, the more basic point is the more important one: neither the AUMF nor any iteration of the NDAA ”expressly authorizes . . . the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States.” [Of course, other statutes expressly authorize the detention of material witnesses, sex offenders, non-citizens in certain deportation cases, etc.--but those are beside the point here.] Thus, the net effect of new § 4001(b) would be to preclude any such detention until and unless Congress provided clear authority in that regard.

Finally, I’d be remiss in not responding to one of the more troubling canards in the Graham/Levin colloquy–the suggestion that, unless new new § 4001(b) was read in the manner they suggested, the United States would lack the authority to capture, arrest, or otherwise incapacitate terrorism suspects on U.S. soil. Section (b)(1) specifically prohibits “detention without charge or trial” in the absence of express statutory authorization, not any and all detention. Perhaps Senators Graham and Levin believe that detention incident to charge and trial is, in fact, “detention without charge or trial,” at least until the arrestee is presented to a neutral magistrate. But even if that followed (and I’m not at all sure that it does), 18 U.S.C. § 3052 expressly authorizes FBI agents to “make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony.” A sweeping range of similar statutes invest other federal officers with comparable arrest authority (see, e.g., 2 U.S.C. § 1966; 12 U.S.C. § 248; 14 U.S.C. § 95; etc.). So federal officers already have express statutory authority to arrest any of the individuals Senators Graham and Levin are worried about–and to detain until presentment, after (if not by) which the arrestee is no longer detained “without charge”.

Don’t get me wrong–§ 4001(b) isn’t perfect, especially insofar as it draws unfortunate lines between LPRs and non-citizens with different statuses. I, for one, would have preferred a statute that required a clear statement for any and all detention, and not just for the cases identified in § 4001(b)(1). But for those who are worried principally about the government’s power to subject citizens and LPRs within the United States to potentially indefinite military detention, § 4001(b) is a very big–and useful–deal, and one that, its flaws notwithstanding, simply doesn’t present the problems to which the Graham/Levin colloquy adverted.