There has been a great deal of confusion over whether the indefinite detention provisions in the 2012 National Defense Authorization Act (NDAA) apply to US citizens or not – the simple answer is that it is too early to tell.
The NDAA provisions greatly strengthen a framework for detaining suspected members of Al Qaeda or its affiliates that is derived from the law of armed conflict. Under the law of armed conflict belligerents can be detained until the conflict ends or until they no longer pose a threat.
The NDAA drafters draw a clear distinction between US citizens and non-US citizens which is itself problematic since equality before the law is one of the most fundamental principles of justice and a core human right.
The NDAA “requires” that non-US citizens be treated as enemy combatants rather than as criminal suspects unless the President issues a waiver in the interests of national security.