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Jonathan Hafetz Replies re: Non-Citizens and the New Feinstein Amendment

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Sunday, December 9, 2012 at 9:53 PM

Below the fold, I’m pasting in a reply by Jon Hafetz from Seton Hall to last Friday’s post by Marty Lederman and me on the new Feinstein Amendment and the military detention of non-citizens apprehended within the United States–which was itself a response to Jon’s post @ Opinio Juris earlier last week:

Marty and Steve have posted this response to my piece on Opinio Juris critiquing Senator Dianne Feinstein’s amendment to the 2013 National Defense Authorization (“NDAA”), which would require a clear statement from Congress before the U.S. could detain militarily—and without charge—a citizen or legal permanent resident (LPR) arrested in the United States.  Our main disagreement is not over what the Feinstein Amendment does, but rather over what its future effects are likely to be.  There is, in short, a difference between not increasing the executive’s power to detain individuals within the United States (which none of us believe the Amendment does), and between making it easier or more likely for an executive (if not this executive) to detain certain individuals (non-citizen, non-LPRs) arrested inside the United States, and for courts to uphold that detention.  In that regard, and with all due respect to Marty and Steve, I maintain that the Amendment does more harm than good.

Marty and Steve point to the Obama administration’s commitment to processing all terrorism suspects arrested in the United States in Article III courts, even if they are neither U.S. citizens nor LPRs.  But the President has not always been unequivocal that non-citizens arrested in the United States will not be subject to domestic military detention (see the President’s signing statement to the 2012 NDAA).  Obama, moreover, will not be president forever, and the question remains how a successor administration will employ the detention power it believes it has.

Marty and Steve point to section (b)(3) of the Amendment, which provides that the Amendment’s clear statement rule “shall not be construed to authorize the detention of . . . any other person who is apprehended in the United States.” (emphasis Marty and Steve’s).   They then point to Senator Durbin’s statement on the Senate floor that section (b)(3) guarantees that the Senate “is not implicitly authorizing the indefinite detention of anyone.”   But I am not arguing that the Feinstein amendment creates new detention authority (and Marty and Steve are right to challenge those who contend otherwise).  The question, in my view, is how the Amendment may affect the construction of the original 2001 Authorization for Use of Military Force (AUMF)—the statute on which the government has relied to detain individuals militarily both inside and outside the United States—both by a future administration and by courts.

Although the question whether the 2001 AUMF authorizes the military detention of non-LPR, non-citizens arrested in the United States remains open (I, for one, certainly do not argue otherwise), the Feinstein Amendment nevertheless makes it more difficult to argue that there is no such authority.  The amendment specifically provides that a different—and greater—level of clarity is required by Congress to authorize the military detention of a U.S. citizen (or LPR) arrested in the U.S. than a non-citizen, non-LPR arrested under the same circumstances.

Assume a U.S. citizen terrorism suspect arrested in the U.S. were again handed over to the military under the AUMF (the Padilla redux).  That citizen would presumably assert that his detention is illegal because the AUMF lacks the express statement required by the Feinstein Amendment.  No such express statement, the Amendment might be read to suggest, by negative implication, is required for a non-citizen unless he is an LPR.  Were, moreover, an existing background constitutional norm sufficient to require a clear statement (a court might ask), what is the purpose of the Feinstein Amendment?

Here’s how a court might read the Feinstein Amendment—rightly or wrongly—if faced with a future case of a non-citizen, non-LPR arrested in the U.S. and detained by the military (the al-Marri redux).  The Amendment is superfluous unless the AUMF did in fact grant some domestic detention authority.  Such authority must extend to both citizens and non-citizens given the absence of a citizenship distinction in the AUMF itself and the logic of Hamdi.  The Amendment thus supports the conclusion that express authorization is required for domestic detention only where the detainee is a U.S. citizen (or an LPR).

Put another way, counsel arguing such a future case would no longer be able to maintain—at least not with equal force—that the same clear geographic line limits U.S. military detention power regardless of the detainee’s citizenship.  And the court hearing that case would no longer feel compelled to conclude—as it would have after Hamdi and before the Feinstein Amendment—that finding the AUMF applies to a non-citizen arrested in the U.S. necessitates the conclusion that it applies to citizens as well.

The Feinstein amendment thus weakens due process in the following respect.  The Amendment does not—nor could not—directly alter the content of the Due Process Clause.  But by placing (non-LPR) non-citizens at greater risk of indefinite military detention than before, it jeopardizes their substantive due process right not to be detained without charge or trial—a right the Amendment reinforces for U.S. citizens by imposing a clear statement requirement.   A future non-citizen, non-LPR held in military detention could still indisputably claim the type of procedural due process described in Hamdi (notice and a meaningful opportunity to rebut the government’s allegations before a neutral decisionmaker).  The Amendment, however, disadvantages that individual in asserting the substantive due process right not to be detained without charge by making it more difficult to claim that such detention lacks statutory authorization.

The Feinstein Amendment, moreover, perpetuates harmful citizenship-based distinctions on matters affecting fundamental rights, thus exacerbating a problem that continues to haunt military commissions.  Matt makes a number of excellent points here describing several harmful policy consequences of such discriminatory measures.

Senator Feinstein may have wanted to draft her amendment to include all individuals in the United States, but declined to do so because such a measure lacked the necessary political support.  The Amendment, however, affords protection to those who least need it.  And, from a political perspective, by protecting U.S. citizens, it makes it even less likely that a future Congress will extend the same protection to all non-citizens in the United States since it reinforces the perception that indefinite military detention is something that can happen only to “them” and not to “us.”

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