The detainee provisions passed as part of the National Defense Authorization Act for FY2012 (2012 NDAA; P.L. 112-81 ), affirm that the Authorization for Use of Military Force (AUMF) in response to the terrorist attacks of September 11, 2001, authorize the detention of persons captured in connection with hostilities. The act provides for the first time a statutory definition of covered persons whose detention is authorized pursuant to the AUMF. During consideration of the detention provision, much of the debate focused on the applicability of this detention authority to U.S. citizens and other persons within the United States. Congress ultimately adopted a Senate amendment to clarify that the provision is not intended to affect any existing law or authorities relating to the detention of U.S. citizens or lawful resident aliens, or any other persons captured or arrested in the United States. This report analyzes the existing law and authority to detain, as "enemy combatants," U.S. persons, which, for the purpose of this report means persons who are generally understood to be subject to U.S. territorial jurisdiction or otherwise entitled to constitutional protections; that is, American citizens, resident aliens, and other persons within the United States. In Hamdi v. Rumsfeld , a plurality of the Court held that a U.S. citizen allegedly captured during combat in Afghanistan and incarcerated at a Navy brig in South Carolina could be held as an enemy combatant as part of the necessary force authorized by Congress after the terrorist attacks of September 11, 2001 , but that he was entitled to notice and an opportunity to be heard by a neutral decision maker regarding the government's reasons for detaining him. On the same day, the Court in Rumsfeld v. Padilla overturned a lower court's grant of habeas corpus to another U.S. citizen in military custody in South Carolina on jurisdictional grounds, sending the case to a district court in the Fourth Circuit for a new trial. U.S. Practice—Detention of Enemies on U.S. Four of the judges on the panel would have retained the earlier decision, arguing that it was not within the court's power to expand the definition of "enemy combatant" beyond the law-of-war principles at the heart of the Supreme Court's Hamdi decision. The Obama Administration sought to deflect the lawsuit on the basis that Section 1021 of the NDAA does "nothing new," but merely reaffirms detention authority conferred by the AUMF as it has been practiced by the executive branch and affirmed by the U.S. Court of Appeals for the D.C. The government immediately appealed. In affirming the detention authority under the AUMF in the 2012 NDAA, Congress declined to clarify whether the detention authority extends to U.S. citizens and other persons within the United States, providing instead that the law and authority with respect to such persons remains unchanged. The House version of the National Defense Authorization Act for FY2013 (2013 NDAA; H.R. The bills addressed the issue of detention of U.S. persons inside the United States in different ways. P.L. 3304 ( P.L. H.R.
The detainee provisions passed as part of the National Defense Authorization Act for FY2012, P.L. 112-81, affirm that the Authorization for Use of Military Force (AUMF), P.L. 107-40, in response to the terrorist attacks of September 11, 2001, authorizes the detention of persons captured in connection with hostilities. The act provides for the first time a statutory definition of covered persons whose detention is authorized pursuant to the AUMF. During debate of the provision, significant attention focused on the applicability of this detention authority to U.S. citizens and other persons within the United States. The Senate adopted an amendment to clarify that the provision was not intended to affect any existing law or authorities relating to the detention of U.S. citizens or lawful resident aliens, or any other persons captured or arrested in the United States. This report analyzes the existing law and authority to detain U.S. persons, including American citizens and resident aliens, as well as other persons within the United States who are suspected of being members, agents, or associates of Al Qaeda or possibly other terrorist organizations as "enemy combatants."
The Supreme Court in 2004 affirmed the President's power to detain "enemy combatants," including those who are U.S. citizens, as part of the necessary force authorized by Congress after the terrorist attacks of September 11, 2001. In Hamdi v. Rumsfeld, a plurality held that a U.S. citizen allegedly captured during combat in Afghanistan and incarcerated at a Navy brig in South Carolina is entitled to notice and an opportunity to be heard by a neutral decision maker regarding the government's reasons for detaining him. On the same day, the Court in Rumsfeld v. Padilla overturned a lower court's grant of habeas corpus to another U.S. citizen in military custody in South Carolina on jurisdictional grounds, leaving undecided whether the authority to detain also applies to U.S. citizens arrested in the United States by civilian authorities. Lower courts that have addressed the issue of wartime detention within the United States have reached conflicting conclusions. While the U.S. Court of Appeals for the Fourth Circuit ultimately confirmed the detention authority in principle in two separate cases (one of which was subsequently vacated), the government avoided taking the argument to the Supreme Court by indicting the accused detainees for federal crimes, making their habeas appeals moot and leaving the law generally unsettled. A federal judge enjoined the detention of persons on the basis of providing support to or associating with belligerent parties under one prong of the definition enacted as Section 1021 of the National Defense Authorization Act for FY2012, P.L. 112-81 (Hedges v. Obama), but the decision has been reversed on appeal on the basis of standing.
This report provides a background to the legal issues presented, followed by a brief introduction to the law of war pertinent to the detention of different categories of individuals. An overview of U.S. practice during wartime to detain persons deemed dangerous to the national security is presented. The report concludes by discussing Congress's role in prescribing rules for wartime detention, subsequent legislation in the 112th Congress that addresses the detention of U.S. persons, and legislative proposals in the 113th Congress to further address the issue (H.R. 1960, S. 1147, H.R. 2325, and H.R. 3304.