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On Amending the NDAA to Preclude Military Detention of Citizens Captured in the U.S.

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Monday, November 19, 2012 at 9:35 AM

Ben notes what appears to be a draft proposal from Senator Rand Paul to amend the NDAA so as to address situations involving American citizens captured inside the United States.  While the context suggests that the drafters’ aim might be to preclude the use of military detention in such cases, it seems to me that their text fails to achieve this end, for it does not actually say that persons in this situation shall not be subject to military detention.  Instead, it merely specifies a set of prosecution-related rights (specifically, those already guaranteed by the Sixth Amendment) that must be adhered to should the government decide to pursue a prosecution.  This will not effectively foreclose a decision to forego prosecution in favor of relying on the non-criminal option of military detention under color of the law of war, the AUMF, and the NDAA.  If Congress aims to foreclose military detention for citizens in the U.S. (either altogether or at least for periods of detention lasting beyond some initial stage), it will need to be more explicit.