A few congressmen are now attempting to remove some longstanding lawful tools in the counterterrorism fight.
The Smith–Amash amendment would force the government to send any al-Qaeda member captured in the United States directly to federal court. If this amendment becomes law, it would limit a President’s flexibility and take off the table lawful military detention and lawful interrogation for intelligence purposes. For these and other reasons, the proposal is unwise.
Despite over-the-top claims to the contrary, last year’s National Defense Authorization Act (NDAA) does not impact the conditions under which a U.S. citizen may (or may not) be detained. In fact, section 1021 of the NDAA is explicit: The law regarding how U.S. citizens are handled, including the right to habeas corpus, is the same today as it was the day before it was passed.
Under the law of armed conflict or the law of war, a nation engaged in armed conflict has the legal authority to detain enemies who have engaged in combatant actions, including acts of belligerence, until the end of hostilities. A nation may detain captured enemy fighters—not as punishment but to keep them from returning to the battlefield. The law of war does not differentiate or discriminate between enemy combatants who are citizens or those who are non-citizens. History is replete with examples of citizens who became members of the opposing forces and were subject to detention when captured.
Two former Attorneys General, a former Secretary of Homeland Security, and other experienced national security professionals have come out against this amendment. Our letter to Representative Howard “Buck” McKeon (R–CA) explains, in part, that “rewarding terrorists with greater rights for making it to the United States would actually incentivize them to come to our shores, or to recruit from within the United States, where they pose the greatest risk to the American people. Such a result is perverse.”
The notion that the NDAA allows for U.S. citizens to be prosecuted under the Military Commissions Act of 2009 is also false. The act applies only to “alien unprivileged enemy belligerents.” Aliens under the act means non-citizens, and thus the act does not allow for prosecution of U.S. citizens by military commissions.
Not only is habeas corpus review available to both citizens and non-citizens detained in the U.S. pursuant to the law of war, but the Supreme Court has also extended the privilege to foreign detainees held at the U.S. naval station in Guantanamo Bay, Cuba. U.S. military and national security professionals have been litigating Guantanamo detainee habeas cases for several years. Section 1021 reaffirms the military’s legal position on holding Guantanamo detainees who pose a threat to the U.S. The Department of Justice is already citing section 1021 in its legal briefs to support the military’s detention of foreign terrorists held at Guantanamo and Afghanistan.
In summary, last year’s NDAA detainee provisions do not create or expand the government’s ability to detain U.S. citizens. In no way does the NDAA negatively impact or change the constitutional rights of U.S. citizens. Instead, section 1021 strengthens the military’s authority to detain individuals who are members of or substantially supporting al-Qaeda, the Taliban, and associated forces.
Misinformation regarding the impact of section 1021 should not detract from this significant step toward reinforcing the legal underpinnings of the war against terrorists.
The Smith–Amash amendment does not “fix” anything; it disarms the commander in chief during a time of war from using all tools available to him—at exactly the same time al-Qaeda is desperately recruiting Westerners to carry out terrorist attacks inside the U.S.