Guantanamo: Legislation

The NDAA and the Due Process Guarantee Act of 2011

By Steve Vladeck
Friday, December 16, 2011, 12:03 AM

Well that was fast... With the ink barely dry on the Senate's passage of the NDAA, Senator Feinstein yesterday introduced on behalf of herself and 13 Senate colleagues (including Republican Senators Lee, Kirk, and Paul) the "Due Process Guarantee Act of 2011." The title is a bit of a misnomer; what the bill really does is amend the Non-Detention Act (which requires statutory authorization for the detention of U.S. citizens) by adding what would be new 18 U.S.C. § 4001(b):

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.

It won't come as a surprise in light of my post from Tuesday that I think this legislation would provide a promising solution to the clear statement issue--and a far more meaningful safeguard against abuses of governmental detention authority than anything in the NDAA. Reasonable people will surely disagree about the circumstances in which the government should legally be able to detain U.S. citizens and LPRs without charges--that's another matter. But it strikes me that the only reason to oppose requiring Congress to speak clearly when it intends to authorize such detention (and to thereby force the difficult constitutional questions that such detention raises) is if one honestly believes both that (1) Congress would provide express authorization (hardly a given, methinks); and (2) as such, we're better off leaving things ambiguous--and therefore ultimately up to the courts. And for those, like me, who think that there already is a clear statement requirement, the "DPGA" would merely codify that understanding...