Detention of U.S. Persons: What is the Existing Law?

When Congress passed the 2012 National Defense Authorization Act, it included provisions that authorized U.S. armed forces to detain persons who are captured in the conflict with al-Qaeda, the Taliban, or associated forces. However, Congress also said that those provisions did not provide any new authority to detain U.S. citizens or others who may be captured in the United States.

“Nothing in this section shall be construed to affect existing law or authority relating to the detention of United States citizens…,” section 1021(e) of the Act states.  “We are simply codifying existing law,” said Sen. Carl Levin, chair of the Senate Armed Services Committee, at the time.

But this was an evasion, since existing law regarding the detention of U.S. persons is indeterminate in important respects.

A new report from the Congressional Research Service fleshes out the law of detention, identifying what is known to be true as well as what is unsettled and unresolved.

It is perfectly clear, for example, that a U.S. citizen who fought alongside enemy forces against the United States on a foreign battlefield could be lawfully detained.  This was affirmed by the U.S. Supreme Court in the case Hamdi v. Rumsfeld.

On the other hand, the CRS report explains, “the President’s legal authority to militarily detain terrorist suspects apprehended in the United States has not been definitively settled.”

Nor has Congress helped to settle it.  “This bill does not endorse either side’s interpretation,” said Sen. Dianne Feinstein on December 1 about the defense authorization act, “but leaves it to the courts to decide.”

So if a detention of a U.S. person does occur, the CRS said, “it will be up to a court to determine Congress’s intent when it enacted the AUMF [the 2001 Authorization to Use Military Force], or alternatively, to decide whether the law as it was subsequently developed by the courts and executive branch sufficiently established that authority for such detention already exists.”

Up to now, “Lower courts that have addressed questions the Supreme Court left unanswered have not achieved a consensus on the extent to which Congress has authorized the detention without trial of U.S. persons as ‘enemy combatants,’ and Congress has not so far clarified its intent.”

The new CRS report traces the development of U.S. detention policy from the Alien and Sedition Acts of 1798 through the Civil War, the two World Wars, and the Cold War up to the present day. See Detention of U.S. Persons as Enemy Belligerents by CRS legislative attorney Jennifer K. Elsea, February 1, 2012.

Some other new (or newly updated) CRS reports obtained by Secrecy News that have not been made readily available to the public include the following.

Terrorist Watch List Screening and Brady Background Checks for Firearms
, February 1, 2012

War Powers Resolution: Presidential Compliance, February 1, 2012

The U.S. Postal Service’s Financial Condition: Overview and Issues for Congress, January 27, 2012