Last week I commented on and linked to posts at Lawfare by University of Texas’ Robert Chesney analyzing the Senate version of the National Defense Authorization Act and its detention provisions, including US citizen detention. This is very much a moving target, with the House and Senate versions of the bill having moved to conference for reconciliation. Chesney, Wittes, and others at Lawfare are continuing a close read of the successive versions, and if you want to stay abreast of things, go to Lawfare. At this point, Chesney observes with respect to US citizen detention (you need to read Chesney’s linked series of posts to really understand the background):
[T]he [conference] language is the same as in the final Senate bill:
Section 1021(e) AUTHORITIES.—Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.
That is, the NDAA should not be read to express views on such questions one way or the other, but rather the matter if litigated should be decided under the original AUMF just as it would have been absent the NDAA. But note that the language is not sufficiently clear whether this rule of construction is meant to encompass citizens and LPRs captured anywhere, or just when captured in the United States itself. That is, should the “captured or arrested in the United States” clause at the end be read as modifying only the language “or any other persons,” or instead as modifying all three categories listed in that sentence?
Chesney goes on in a separate Lawfare post to observe that the “mandatory military detention” is not actually very mandatory:
Section 1022 of the Conference version of the NDAA carries forward section 1032 of the Senate version, which has been widely described as a mandatory military detention provision for a subset of detainable persons who are non-citizens linked to specific terrorist attacks. Both critics and supporters of the bill have focused heavily on this notion, lauding or decyring it. All of that is greatly overstated, however. The final bill applies to persons who are part of al Qaeda or an al Qaeda-associated force who is not a citizen and who was part of a particular attack or planned attack. Think Abdulmutalab. At first blush, it seems as if it channels such persons ineluctably into military custody, even when captured in the US. But on closer inspection that’s not at all the necessary result, for three reasons.
Read the Lawfare post to find out his three reasons. Or, as Glenn Reynolds might put it, read the whole thing. But in this case, the target is moving such that you have to read backwards and forwards.