Recent legislative action on military detention of suspected enemy combatants perpetuates an ambiguity in the law as to whether U.S. citizens may be so detained, a new report from the Congressional Research Service says.
“The circumstances in which a U.S. citizen or other person captured or arrested in the United States may be detained under the authority conferred by the AUMF [the post-9/11 Authorization for Use of Military Force] remains unsettled,” wrote CRS analyst Jennifer Elsea. “The 2012 NDAA [National Defense Authorization Act] does not disturb the state of the law in this regard.”
“Section 1021 [of the NDAA] does not attempt to clarify the circumstances in which a U.S. citizen, resident alien, or other person captured within the United States may be held as an enemy belligerent in the conflict with Al Qaeda. Consequently, if the executive branch decides to hold such a person under the detention authority affirmed in Section 1021, it is left to the courts to decide whether Congress meant to authorize such detention when it enacted the AUMF in 2001,” the CRS report said. See The National Defense Authorization Act for FY2012: Detainee Matters, January 11, 2012.
Some other new CRS reports that have not been made readily available to the public include these:
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