Americans Detained: The Congressional Debate on Whether to Prohibit the Indefinite Military Detention of U.S. Citizens

On December 2,2011, the Senate passed The National Defense Authorization Act (NDAA), which includes a detainee provision that leaves unsettled the contentious issue

of whether the U.S. government can indefinitely detain American citizens in military prisons. The final version of the legislation that ultimately passed included an amendment introduced by Senator Diane Feinstein (D-CA) that represents a compromise between the senators who disagreed on whether to codify the authority of the President to indefinitely detain American citizens in military prisons.

Many senators including Rand Paul (R-KY), one of the chamber’s most conservative members, argued that the initial detainee language introduced was too expansive and could have handed the executive branch the power to have the military arrest U.S. citizens and hold them without trial. The initial language that was at issue was in Section 1031 of the original bill, which stated: “Congress affirms that the authority of the President to use all necessary and appropriate force…includes the authority for the Armed Forces of the United States to detain covered persons…Detention under the law of war without trial.” Secretary of Defense, Leon Panetta, and other administration officials also expressed concern that this language would have authorized the indefinite military detention of American citizens.

However, after a protracted debate in the Senate and attempts by multiple senators, including Senator Mark Udall (D-CO) to strip Section 1031 from the bill, the Senate ultimately settled on a compromise amendment introduced by Senator Feinstein. The amendment, which passed 99-1, does not actually prohibit the U.S. government from detaining Americans indefinitely in military prisons. The compromise provision only reiterates that, “nothing in the legislation is intended to change the existing authority on detention.”

The Supreme Court has already held that the U.S. government has the authority to detain American citizens in military prisons. In Hamdi v. Rumsfeld the Supreme Court held that Hamdi, a U.S. citizen captured in Afghanistan and detained in Guantanamo Bay, was an enemy combatant and could be detained in a military prison. The Court reasoned that the Authorization for the Use of Military Force (AUMF), passed by Congress following the attacks on September 11, 2001, authorized the President to detain anyone determined to be an enemy combatant. Some senators, including the Chairman of the Senate Armed Services Committee, Senator Carl Levin (D-MI) and Senator Lindsey Graham (R-SC) argue that, irrespective of the compromise provision recently passed in the Senate, the Hamdi decision already authorizes the President to provide military detentions for U.S. citizens.

The President opposes the Senate passed NDAA and has threatened to veto the legislation if Congress passes it in its current form. Jay Carney, the White House Press Secretary, stated in a recent press conference, “Any bill that challenges or constrains the president’s critical authorities to collect intelligence, incapacitate dangerous terrorists and protect the nation would prompt his senior advisers to recommend a veto.” In addition, Deputy National Security Advisor, John Brennan, recently went even further in expressing the Administration’s position by stating that there will be no military detentions for American citizens who are captured in the U.S.

For now, we have to wait and see whether Congress will include the Senate passed military detention provision in the final bill, which the President has all but assured that he will veto. The House, which passed its version of the NDAA last May, and Senate Conference Committee, must still meet to reconcile the different language between the two versions of the bill.

Many senators including Rand Paul (R-KY), one of the chamber’s most conservative members, argued that the initial detainee language introduced was too expansive and could have handed the executive branch the power to have the military arrest U.S. citizens and hold them without trial. The initial language that was at issue was in Section 1031 of the original bill, which stated: “Congress affirms that the authority of the President to use all necessary and appropriate force…includes the authority for the Armed Forces of the United States to detain covered persons…Detention under the law of war without trial.” Secretary of Defense, Leon Panetta, and other administration officials also expressed concern that this language would have authorized the indefinite military detention of American citizens.

However, after a protracted debate in the Senate and attempts by multiple senators, including Senator Mark Udall (D-CO) to strip Section 1031 from the bill, the Senate ultimately settled on a compromise amendment introduced by Senator Feinstein. The amendment, which passed 99-1, does not actually prohibit the U.S. government from detaining Americans indefinitely in military prisons. The compromise provision only reiterates that, “nothing in the legislation is intended to change the existing authority on detention.”

The Supreme Court has already held that the U.S. government has the authority to detain American citizens in military prisons. In Hamdi v. Rumsfeld the Supreme Court held that Hamdi, a U.S. citizen captured in Afghanistan and detained in Guantanamo Bay, was an enemy combatant and could be detained in a military prison. The Court reasoned that the Authorization for the Use of Military Force (AUMF), passed by Congress following the attacks on September 11, 2001, authorized the President to detain anyone determined to be an enemy combatant. Some senators, including the Chairman of the Senate Armed Services Committee, Senator Carl Levin (D-MI) and Senator Lindsey Graham (R-SC) argue that, irrespective of the compromise provision recently passed in the Senate, the Hamdi decision already authorizes the President to provide military detentions for U.S. citizens.

The President opposes the Senate passed NDAA and has threatened to veto the legislation if Congress passes it in its current form. Jay Carney, the White House Press Secretary, stated in a recent press conference, “Any bill that challenges or constrains the president’s critical authorities to collect intelligence, incapacitate dangerous terrorists and protect the nation would prompt his senior advisers to recommend a veto.” In addition, Deputy National Security Advisor, John Brennan, recently went even further in expressing the Administration’s position by stating that there will be no military detentions for American citizens who are captured in the U.S.

For now, we have to wait and see whether Congress will include the Senate passed military detention provision in the final bill, which the President has all but assured that he will veto. The House, which passed its version of the NDAA last May, and Senate Conference Committee, must still meet to reconcile the different language between the two versions of the bill.

Photo obtained from www.disastersurvivaltools.com.