Detention: Law of: Legislative Development

Tweaking Senator Paul's NDAA Detention Language

By Wells Bennett
Monday, November 19, 2012, 11:28 AM

In his post on Senator Rand Paul's proposal regarding citizens and the NDAA, Bobby highlights a recurring and important question: why is it so hard for ostensibly civil libertarian legislators explicitly to oppose the domestic detention of U.S. citizens?  To date, I believe only one bill---that offered by Representatives Adam Smith (D-WA) and Justin Amash (R-MI) ---would go so far as to codify the Obama Administration’s stated policy: no military detention of citizens found in the United States, period.  But this has been the exception to the developing rule, and was in any case defeated in the House earlier this year.

The recent trend began with the House Armed Services Committee’s proposal for NDAA 2013.  Confronting the lingering uncertainty on citizen detention matters, the original proposal by HASC Chairman Buck McKeon meekly declared that … nothing in the NDAA would be construed to deny the availability of habeas relief to a U.S. citizen detained on U.S. soil.  But the draft pointedly did not preclude non-criminal detention of U.S. citizens.  This feature prompted swift non-intervention by Rep. Louis Gohmert.  His proposal, which the House ultimately approved, tinkers with habeas procedures but says zilch about the circumstances under which a citizen might be captured domestically but held outside of the criminal justice system.  (To be sure, Gohmert’s amendment very much worsens the status quo from a civil libertarian standpoint: as Steve pointed out, it appears to restrict the availability of habeas relief to immigration petitioners.)

Which brings us to Senator Paul's NDAA language.  In keeping with the approach of its predecessors, it reiterates rights already conferred by the Constitution, but, for some reason, just cannot bring itself to take domestic citizen detention off the table.

So here’s a challenge for the civil libertarians in Congress, a “Lawfare dare,” if you will: if you oppose the non-criminal detention of citizens found in the United States, then say so in proposed legislation---as Smith and Amash did earlier.  On the other hand, if you desire merely to paint about the issue’s edges, while preserving a (for now hypothetical) claim of executive non-criminal detention power, then say that, too.  To put the point differently, if Senator Paul desires to do so, there’s a simple way to narrow existing domestic detention authority vis a vis citizens---and thus to break with the McKeon-Gohmert approach of deliberately doing nothing while sounding as if you're doing something.  The Senator could---and should---push the Smith-Amash approach in the Senate.