The Congressional Research Service published on December 4 a report entitled “Detention of U.S. Persons as Enemy Belligerents,” which the Federation of American Scientists has posted. Its summary reads:
The detainee provisions passed as part of the National Defense Authorization Act for FY2012, P.L. 112-81, affirm that the Authorization for Use of Military Force (AUMF), P.L. 107-40, in response to the terrorist attacks of September 11, 2001, authorizes the detention of persons captured in connection with hostilities. The act provides for the first time a statutory definition of covered persons whose detention is authorized pursuant to the AUMF. During debate of the provision, significant attention focused on the applicability of this detention authority to U.S. citizens and other persons within the United States. The Senate adopted an amendment to clarify that the provision was not intended to affect any existing law or authorities relating to the detention of U.S. citizens or lawful resident aliens, or any other persons captured or arrested in the United States. This report analyzes the existing law and authority to detain U.S. persons, including American citizens and resident aliens, as well as other persons within the United States who are suspected of being members, agents, or associates of Al Qaeda or possibly other terrorist organizations as “enemy combatants.”
The Supreme Court in 2004 affirmed the President’s power to detain “enemy combatants,” including those who are U.S. citizens, as part of the necessary force authorized by Congress after the terrorist attacks of September 11, 2001. In Hamdi v. Rumsfeld, a plurality held that a U.S. citizen allegedly captured during combat in Afghanistan and incarcerated at a Navy brig in South Carolina is entitled to notice and an opportunity to be heard by a neutral decision maker regarding the government’s reasons for detaining him. On the same day, the Court in Rumsfeld v. Padilla overturned a lower court’s grant of habeas corpus to another U.S. citizen in military custody in South Carolina on jurisdictional grounds, leaving undecided whether the authority to detain also applies to U.S. citizens arrested in the United States by civilian authorities. Lower courts that have addressed the issue of wartime detention within the United States have reached conflicting conclusions. While the U.S. Court of Appeals for the Fourth Circuit ultimately confirmed the detention authority in principle in two separate cases (one of which was subsequently vacated), the government avoided taking the argument to the Supreme Court by indicting the accused detainees for federal crimes, making their habeas appeals moot and leaving the law generally unsettled. Recently, a federal judge enjoined the detention of persons on the basis of providing support to or associating with belligerent parties under one prong of the definition enacted as Section 1021 of the National Defense Authorization Act for FY2012, P.L. 112-81 (Hedges v. Obama). The injunction has been stayed pending the government’s appeal.
This report provides a background to the legal issues presented, followed by a brief introduction to the law of war pertinent to the detention of different categories of individuals. An overview of U.S. practice during wartime to detain persons deemed dangerous to the national security is presented. The report concludes by discussing Congress’s role in prescribing rules for wartime detention as well as legislative proposals in the 112th Congress to address the detention of U.S. persons (H.R. 4310, H.R. 4388, H.R. 3676, H.R. 3785, H.R. 3702, S. 2003, H.R. 4092, H.R. 4192, S. 2175, S. 3254).