OK, I'm going to take another swing at this.
The bill doesn't seem to change anything from the current situation, except for bringing the debate into the light.
Previously the discussion over whether the US could indefinitely detain people, including citizens, was taking place entirely off the board. It was administration legal advice and memos with no congressional oversight. There was (and is) judicial review, but the current Supreme Court has a deferential tendency towards administrative policy where there isn't a clear legal line.
That is, because Congress hadn't defined the limits, the administration was free to decide what those limits were as long as they could get them past (or around) the court system. The only real challenges possible were constitutional and those were recently strongly limited.
With this bill Congress at least define and limit the scope of the program, if not reign it in completely (a political impossibility).
Congress have now outlined pretty much the current detainee policy in a law. As far as I can tell not a single extra power has been granted that the administration hadn't already claimed
and exercised.
There are actually two get-out clauses in the law that say exactly that. The first, from the original body of the law;
Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.
The second, from the Feinstein ammendment that was successfully passed (99-1 - after her original was rejected she submitted
a more subtle modification that only Kyl objected to);
Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens or lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.
That amendment goes further than a previous section exempting citizens and legal aliens acting within the USA from
mandatory military detention, which is the really nasty part of this bill. It requires military detention for captured terrorists unless a national security waver is obtained from Congress. I could really do without that (and another section making closing Guantanamo even harder). Those two points making this bill bad, but those two points aren't getting much play in the public discussions.
On the points that people are freaking out over
this is a decent outline of the situation;
So where precisely does this leave things? Well, right where Senator Feinstein says it does. There are three scenarios in which the government in theory might try to use military detention with respect to a citizen, and the current state of the law is unclear as to two of them.
First, it might try to detain a citizen who is an arms-bearing member of the enemy’s forces in a foreign combat zone. Hamdi makes clear that detention authority does extend to that situation already, under the AUMF, and that this is constitutionally permissible (which is no surprise, in my view; In re Territo has long been a standard cite for that same proposition).
Second, the government might wish to detain a citizen found here in the United States, alleging involvement in al Qaeda or another AUMF-covered group. This issue arose with Jose Padilla, an al Qaeda member and U.S. citizen who was arrested on arrival at O’Hare Airport in Chicago and then eventually held for long period in military custody. He challenged that detention through a habeas petition, with mixed results. Suffice to say that the district judge felt that detention authority did not extend to this scenario, that the Fourth Circuit panel hearing his case somewhat avoided the issue by emphasizing the idea that Padilla previously had born arms on the combat zone in Afghanistan and thus was actually similarly-situated to Hamdi, that some observers were confident the Supreme Court would reverse, and that we never found out because Padilla was transferred to civilian custody in order to face prosecution (he was duly convicted and is now in jail). A similar case involving a non-citizen captured in the United States, Ali Salah Kahleh al-Marri, produced a similar result. In short, this is exactly what folks mean when they say that the status quo is unsettled on the question of authority to detain within the U.S.
A third scenario would involve an attempt by the government to hold in military custody a citizen linked to an AUMF-covered group who is captured outside the United States, but not in a hot battlefield context and lacking any prior connection to such combat operations. Say, for example, that Anwar al-Awlaki had been captured in a Special Forces raid in Yemen, rather than killed in a drone strike. We’ve not had a case like that yet, so it seems to me we’d have to say the law is at least somewhat unsettled as well.
So what does the NDAA have to say about any of this? Nothing at this point, thanks to the Feinstein amendment. For better or worse, the Senate version is explicitly agnostic as to these matters. If it is enacted with that qualification, then the government will be no more and no less able than before to assert detention authority over citizens, and the courts should be no more and no less likely to rule on the matter one way or the other.
Correction posted later;In a prior post surveying the impact of the Senate version of the NDAA bill (currently in conference negotiations), I emphasized that the Feinstein Amendment made clear that the NDAA did not alter, one way or the other, the government’s power to detain citizens. That is, the Feinstein Amendment left in place whatever authority the government has or does not have, already, under the 9/18/01 AUMF. That is still my position as to domestic captures. But on reflection I no longer think it is correct as to foreign captures of US citizens.
...
Bottom line: The Senate version of the NDAA is neutral regarding US citizens in the U.S., but certainly can be read to provide clearer statutory authority to encompass citizens abroad (so long, of course, as they fall into one of the categories specified in 1031). Note that the latter may not actually be enough to withstand a court challenge; if a court insists upon a “clear-statement” rule in order to construe the AUMF/NDAA to encompass citizens, this may not be enough to get over that hurdle as to foreign captures (and it certainly would not be enough as to domestic captures).
Summary;
It might be slightly easier to argue that the US military can detail citizens captured overseas, although this law isn't clear let alone explicit on the matter. However, such detention is already legal under current SC precedent.
Detention within the USA is entirely unchanged from the current situation, which is pretty murky.
What really scares the crap out of me in this situation is how many civil liberty types and progressive liberals are only just noticing this and completely taking these proposals the wrong way. It's as though military detention is a new initiative of this congress rather than an ongoing and murky legal minefield that's been developing for a decade now.
There is a danger in somewhat legitimising detainment in this manner, but outright banning it isn't going to happen. Congress entirely ignoring it and not exercising any oversight is somewhat worse in my view. At least formalising what is happening now and marking out the areas that are murky is going to help with moving forwards. Plus now that everyone is shitting themselves maybe some motivation to fix this will come from the public.
