Detention: Law of: Legislative Development

NDAA Moves Forward, "Due Process and Military Detention Amendments Act" Coming Soon

By Robert Chesney
Thursday, May 10, 2012, 12:48 PM

A quick note updating readers on the progress of the draft NDAA FY'13:  Chairman McKeon's bill passed HASC last night in the wee hours.  Next stop: the floor, where we are likely to see, among other things, debate over an amendment called the Due Process and Military Detention Amendments Act, which I understand may be sponsored by Representatives Adam Smith (D-WA),  Justin Amash (R-MI), Howard Berman (D-CA), and John Garamendi (D-CA), and possibly others.

According to draft language currently making the rounds, the amendment would do two things to the detainee provisions in last year's NDAA bill.

First, it would repeal section 1022 (i.e., the section that makes military detention option the default position in certain cases).   That's not terribly exciting, since the text of 1022 was already shot through with loopholes and the implementing regulations adopted by the Obama administration make clear that 1022 will have little if any actual impact.  That said, section 1022 seems to have a lot of symbolic weight, and an effort to repeal it probably will be hotly contested.

Second, the Amendments Act would alter section 1021 (i.e., the section that clarifies the existence of detention authority under the AUMF) by adding the following two elements:

(g) DISPOSITION OF PERSONS DETAINED IN THE UNITED STATES.

          (1) PERSONS DETAINED PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE OR THE FISCAL YEAR 2012 OR 2013 NATIONAL DEFENSE AUTHORIZATION ACTS.

           In the case of a covered person who is detained in the United States, or a territory or possession of the United States, pursuant to the Authorization for Use of Military Force, this Act, or the National Defense Authorization Act for Fiscal Year 2013, disposition under the law of war shall occur immediately upon the person coming into custody of the Federal Government and shall only mean the immediate transfer of the person for trial and proceedings by a court established under Article III of the Constitution of the United States or by an appropriate State court. Such trial and proceedings shall have all the due process as provided for under the Constitution of the United States.

           (2) PROHIBITION ON TRANSFER TO MILITARY CUSTODY.—No person detained, captured, or arrested in the United States, or a territory or possession of the United States, may be transferred to the custody of the Armed Forces for detention under the Authorization for Use of Military Force, this Act, or the National Defense Authorization Act for Fiscal Year 2013.

(h) RULE OF CONSTRUCTION.

       This section shall not be construed to authorize the detention of a person within the United States, or a territory or possession of the United States, under the Authorization for Use of Military Force, this Act, or the National Defense Authorization Act for Fiscal Year 2013.’’

This no doubt will generate some fascinating back and forth when it is introduced.