Analysis of Indefinite Detention Language of the National Defense Authorization Act

The Senate this week took up enactment of S.1867, a law that would permit the military to arrest and indefinitely detain U.S. Citizens, on U.S. soil, who are suspected of "terrorism." The offensive provisions of the Senate Bill are located in Sections 1031 and 1032. See Detainment Provisions, S. 1867: National Defense Authorization Act for Fiscal Year 2012.

Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

Section 1031(a) (emphasis added). The emphasized section indicates that the President can avoid the Due Process provisions of the U.S. Constitution when detaining a "covered person."

The term "covered person" is broadly defined by the Bill. It includes "any person who has committed a belligerent act . . . ." See Section 1031(b)(2).

Once the President decides (unilaterally with no right to challenge his determination) a person is "covered,", then the law allows several options including:

The disposition of a person under the law of war as described in subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.
(2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)).

See Section 1031(c). These provisions mean that a person designated as a "covered person" may be arrested and denied habeas corpus and jury trial. The person can be sent to places like GitMo and held until the end of "the war on terror." .

The Bill appears to make an exception for U.S. Citizens:

The requirement to detain a person in military custody under this section does not extend to citizens of the United States

. See Section 1032(b). The language of the exception quoted above is being used to argue to that the detention provisions of Section 1031 do not apply to U.S. Citizens. However, the Bill is quite explicit in that it limits the U.S. Citizen exception to Section 1032. The Executive Branch may use the detention provisions of Section 1031 against anyone.

Senator Udall submitted an amendment to the Bill to add the exception language to Section 1031.

Extension to United States Citizens and Lawful Resident Aliens.--The authority of the Armed Forces of the United States to detain covered persons under this section extends to citizens of the United States and lawful resident aliens of the United States, except to the extent prohibited by the Constitution of the United States.

See Udall Amendment.

Yesterday, the Senate voted against the Udall Amendment 60-38. Both South Carolina Senators DeMint and Graham voted in favor of allowing the President to arrest American Citizens and detain them indefinitely with no exception. Kentucky Senator Rand Paul voted for the Udall Amendment, but he was way outvoted and Udall's amendment was killed.

Notify your Senators and let them know you are appalled by their votes to destroy our Constitutional liberties.