Detention: Law of: Legislative Development

Senator Paul and the Due Process Guarantee Act

By Wells Bennett
Tuesday, November 20, 2012, 2:07 PM

Senator Rand Paul’s rumored detention amendment got me reminiscing about S.2003, better known as the Due Process Guarantee Act (“DPGA”).

Remember this?  It was Senator Feinstein’s proposal to clarify that force authorizations and like statutes would not be read so as to permit the military detention of citizens or LPRs apprehended within the United States---that is, absent express authorization to that effect by Congress.  Steve testified in connection with the DPGA before the Senate Judiciary Committee, back in February of this year, but we haven’t heard much about it since then.  One intriguing feature of the bill: among its thirty co-sponsors was none other than . . . Senator Rand Paul.

That’s passing strange, in light of recent events we've covered here on Lawfare.  The DPGA would have banned the military detention of U.S. persons captured within our borders---unless and until Congress explicitly said otherwise.  Senator Paul’s latest proposal doesn’t go nearly that far, but instead merely reiterates rights guaranteed already by the Sixth Amendment---and thus to no obvious effect on the key issue, as Bobby earlier noted.  So what explains the shift?  Why would Senator Paul initially back a policy like that described in the DPGA, but then pivot to his own, seemingly more watered-down approach?  Considering the legislative history, it will be interesting to see how, if at all, Senator Paul addresses the matter going forward.