Over at DefCon Hill, Jeremy Herb shares a letter written by former Attorneys General Edwin Meese III and Michael Mukasey and former Secretary of Homeland Security Michael Chertoff to House Armed Services Committee Buck McKeon criticizing the various amendments that members of Congress plan to introduce tweaking the detention provisions of the 2013 NDAA. They explain:
As you are well aware, the law of armed conflict, also called the law of war, allows for a country engaged in armed conflict to detain the enemy for the duration of hostilities. That age old principle existed well before September 11, 2011 and is a right that all countries must retain during a time of war. Furthermore, the law of armed conflict does not discriminate between enemy combatants who are citizens of the United States and those that are not. Any citizen who joins al Qaeda or its affiliates is properly classified as an unlawful enemy combatant and may be treated as such. We find the notion propagated by some, that a citizen who has nothing to do with al Qaeda could be picked up off an American street and detained by the military, to be ridiculous.
Getting to the proposed amendments, they write:
Unfortunately, other members of Congress have introduced proposed legislation that would instead erode the authorities provided by the AUMF and limit the military’s ability to pursue terrorists. For instance, Representative Adam Smith and Senator Mark Udall have introduced legislation that would prevent the President from ever detaining anyone, including foreign terrorists, in the United States pursuant to the AUMF. Representative John Garamendi and Senator Dianne Feinstein have introduced similar legislation that would leave it up to Congress to decide when the President has the authority to detain U.S. citizens who have joined the enemy.
It is highly questionable whether either of these proposed pieces of legislation would be constitutional as they would deprive any president of lawful options that he may need in order to fulfill his constitutional duties as commander in chief to defend the United States and protect American citizens. Rewarding terrorists with greater rights for making it to the United States would actually incentivize them to come to our shores, or to recruit from within the United States, where they pose the greatest risk to the American people. Such a result is perverse.