Can US Citizens Now be Detained Indefinitely?

prisoner in detention

© John Moore/Getty Images

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.

The NDAA does not “require” that US citizens be treated in a like manner. Indeed Section 1021(e) of the Act appears to offer US citizens some protection stating:

“Nothing in this section shall be construed to affect the existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who captured or arrested in the United States.”

This might seem promising but, unfortunately, the existing the law does allow for the detention of a US national on US soil as an enemy combatant under the law of armed conflict.

In a case heard during World War II, Ex parte Quirin, the Supreme Court upheld the executive’s right to hold a dual US-German national, Herbert Hans Haupt, as an enemy combatant. Haupt had landed in Florida from a German U-Boat in June 1942 as part of a unit of Nazi saboteurs who were swiftly apprehended by the US authorities. Haupt was subsequently tried by Military Commission and sent to the electric chair.

The facts of the Haupt case are interesting in and of themselves. Haupt claimed that he had only joined the German mission as a means of returning home. On setting foot on US soil he immediately left his companions and made his way to his parents’ home in Chicago where he was ultimately arrested. He did not carry out any acts of sabotage during his ten days at large. His parents were both convicted of treason for not turning their son into the police and his father remained in prison until 1957.

Ex parte Quirin was cited in some detail by the proponents of the indefinite detention provisions during the extended debate on the bill in the Senate, as in this exchange on December 1st between Senators Jon Kyl (R-AZ) and Lindsay Graham (R-SC):

Mr. GRAHAM. Does the Senator agree with me that our Supreme Court ruled then that when an American citizen decides to collaborate and assist an enemy force, that is viewed as an act of war and the law of war applies to the conduct of the American citizen?

Mr. KYL. Mr. President, I would say to my colleague, yes. My colleague knows this case, I am confident. I think one quotation from the case makes the point clearly–in Ex parte Quirin the court made clear: “Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of his belligerency.”

During the debate Lindsay Graham also cited the shockingly mismanaged Jose Padilla case as presenting further legal precedent for holding US citizens:

“The statement of authority to detain, does apply to American citizens and it designates the world as the battlefield, including the homeland.”

Watch the clip here:

It is no overstatement to suggest that the idea that US citizens could be held indefinitely as enemy combatants has significant support in the Senate.

As so often with the passage of legislation, the full implications of the NDAA will only become clear over time as the manner in which it is put to use by this, and successive, administrations is tested in the courts. The NDAA is going to be with us for some time and it is worth bearing in mind that President Santorum might interpret it rather differently than President Obama.

As things currently stand, we can say this: The NDAA has further entrenched the law of war paradigm at the heart of US counterterrorism efforts; At least one US citizen – Jose Padilla – has been detained as an enemy combatant since 9/11; The NDAA makes it more likely, not less, that this will happen again.

Reacting to the concerns of civil liberties groups, President Obama sought to allay fears that the NDAA might be used to detain American citizens in the signing statement he released on New Year’s Eve:

“I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.”

Of course, this comes from the man who also once pledged to close Guantanamo so it’s not exactly a promise you can take to the bank.

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26 thoughts on “Can US Citizens Now be Detained Indefinitely?

  1. Are people really just sheeping through life? We have one chance! Ron Paul for President!

  2. Are people really just sheeping through life? We have one chance! Ron Paul for President!

  3. Ron Paul For president? after you just made the comment are people just sheeping through life? that is Irony… I can assure you the next president isn't going to do anything to this Bill no matter who it is. Congress had a overwhelming majority to pass this, and even though the president could have vetoed it it wouldn't have mattered. The Senate controls the US. If you want the government to learn that the people control the government you don't vote you express your rights. I don't even agree with them most of the time… but for once I have to say Anon is right people need to stand up and protest… The last few people that have the American spirit left in them are people that stoop low enough to hack and scare anyone that disagrees with them… thats pretty freaking ironic…

  4. Be very, very careful!
    Canada lived under (theoretical?) Martial Law (the Public Order Bill)
    from 1970 to 1985…without knowing it.
    This is how they condition you to "forget" what's going on.

  5. Ron Paul For president? after you just made the comment are people just sheeping through life? that is Irony… I can assure you the next president isn’t going to do anything to this Bill no matter who it is. Congress had a overwhelming majority to pass this, and even though the president could have vetoed it it wouldn’t have mattered. The Senate controls the US. If you want the government to learn that the people control the government you don’t vote you express your rights. I don’t even agree with them most of the time… but for once I have to say Anon is right people need to stand up and protest… The last few people that have the American spirit left in them are people that stoop low enough to hack and scare anyone that disagrees with them… thats pretty freaking ironic…

  6. Be very, very careful!
    Canada lived under (theoretical?) Martial Law (the Public Order Bill)
    from 1970 to 1985…without knowing it.
    This is how they condition you to “forget” what’s going on.

  7. Then there was a military country, who can label anyone they want as enemy combatant. Obama is enemy combatant at this point because he is violating americans constitutional right by signing this hideous into law. Ron Paul is savior of US if elected

  8. Removing judicial court order for detention is dangerous, does not matter how much you sugar coated. Watch Changeling (2008) to see what it means to be falsely labeled.

  9. Then there was a military country, who can label anyone they want as enemy combatant. Obama is enemy combatant at this point because he is violating americans constitutional right by signing this hideous into law. Ron Paul is savior of US if elected

  10. Removing judicial court order for detention is dangerous, does not matter how much you sugar coated. Watch Changeling (2008) to see what it means to be falsely labeled.

  11. Protest is necessary. But based on the rough treatment that is happening to Occupy (who are among those protesting this bill) it seems protest is getting increasingly dangerous in the U.S.A. There seems to be a mainstream media blackout of this bill here as well, although of course there is plenty of alternative media that covers it.

  12. Protest is necessary. But based on the rough treatment that is happening to Occupy (who are among those protesting this bill) it seems protest is getting increasingly dangerous in the U.S.A. There seems to be a mainstream media blackout of this bill here as well, although of course there is plenty of alternative media that covers it.

  13. This bill is as unamerican as it gets… international law and treaties do not supercede AMERICAN LAW….and as the u.s. Constitution ,IT IS THE SUPREME LAW OF THE LAND… and any federal law is does not supercede this premise… the Constiutution clearly states ALL PERSONS when dealing with matters of detention, and clearly states matters of citizens…. Citizens( and this premise works for ALL persons, ANYWHERE!) Citizens are only granted separate distinctions in reguards to voting… I disagree with those who support this bill, and do think they are enemies of this country, and especially the US constitution…. they ve stretched things far enough but i believe their own actions are enough to be construed as TREASON…. these changes adhere to our enemies… There is nothing in our Constitution preventing elected officials actions, in writing laws, to be viewed as TREASON….

  14. This bill is as unamerican as it gets… international law and treaties do not supercede AMERICAN LAW….and as the u.s. Constitution ,IT IS THE SUPREME LAW OF THE LAND… and any federal law is does not supercede this premise… the Constiutution clearly states ALL PERSONS when dealing with matters of detention, and clearly states matters of citizens…. Citizens( and this premise works for ALL persons, ANYWHERE!) Citizens are only granted separate distinctions in reguards to voting… I disagree with those who support this bill, and do think they are enemies of this country, and especially the US constitution…. they ve stretched things far enough but i believe their own actions are enough to be construed as TREASON…. these changes adhere to our enemies… There is nothing in our Constitution preventing elected officials actions, in writing laws, to be viewed as TREASON….

  15. Please tell me you aren't Americans. Please, tell me that!! You are truly an embarrassment to our country. Don't like it here….. LEAVE!!! You have a choice – leave! We will be so much better and PROGRESSIVE without any of you. Thanks for leaving. I appreciate having less leeches to pay for because I'm sure you all love the welfare system, too. I'm glad you're not Americans anymore! YIPPEEEEEEEEEE!!!!!!!!

  16. Please tell me you aren’t Americans. Please, tell me that!! You are truly an embarrassment to our country. Don’t like it here….. LEAVE!!! You have a choice – leave! We will be so much better and PROGRESSIVE without any of you. Thanks for leaving. I appreciate having less leeches to pay for because I’m sure you all love the welfare system, too. I’m glad you’re not Americans anymore! YIPPEEEEEEEEEE!!!!!!!!

  17. It does not matter if it applies to American citizens because they can strip you of your citizenship with no evidence of any wrong doing under the Enemy Expatriation Act.

    Government could strip citizenship from Americans under Enemy Expatriation Act
    If the Enemy Expatriation Act passes in its current form, the legislation will let the government strike away citizenship for anyone engaged in hostilities, or supporting hostilities, against the United States. The law itself is rather brief, but in just a few words it warrants the US government to strip nationality status from anyone they identify as a threat.
    http://rt.com/usa/news/expatriation-act-citizensh

  18. It does not matter if it applies to American citizens because they can strip you of your citizenship with no evidence of any wrong doing under the Enemy Expatriation Act.

    Government could strip citizenship from Americans under Enemy Expatriation Act
    If the Enemy Expatriation Act passes in its current form, the legislation will let the government strike away citizenship for anyone engaged in hostilities, or supporting hostilities, against the United States. The law itself is rather brief, but in just a few words it warrants the US government to strip nationality status from anyone they identify as a threat.
    http://rt.com/usa/news/expatriation-act-citizensh

  19. It does not matter if it applies to American citizens because they can strip you of your citizenship with no evidence of any wrong doing under the Enemy Expatriation Act.

    Government could strip citizenship from Americans under Enemy Expatriation Act
    If the Enemy Expatriation Act passes in its current form, the legislation will let the government strike away citizenship for anyone engaged in hostilities, or supporting hostilities, against the United States. The law itself is rather brief, but in just a few words it warrants the US government to strip nationality status from anyone they identify as a threat.
    http://rt.com/usa/news/expatriation-act-citizensh

  20. It does not matter if it applies to American citizens because they can strip you of your citizenship with no evidence of any wrong doing under the Enemy Expatriation Act.

    Government could strip citizenship from Americans under Enemy Expatriation Act
    If the Enemy Expatriation Act passes in its current form, the legislation will let the government strike away citizenship for anyone engaged in hostilities, or supporting hostilities, against the United States. The law itself is rather brief, but in just a few words it warrants the US government to strip nationality status from anyone they identify as a threat.

    http://rt.com/usa/news/expatriation-act-citizenship-ndaa-737/

  21. My questions are : With an overwhelming majority of U.S. citizens disapproving of the actions their government has , is, and will probably continue to make, why has the government still been allowed to function as it is? and, What steps can the citizens take to make sure this abomination of the constitution doesn't continue? With so many citizens against these bills, would it not be fair to say, the president himself, congress, and the senate, have committed several acts of not just treason, but also tyranny, especially in keeping their signing, and the option for the people to vote on these bills private? Is it fair to presume they should be the first to be subjected to the bill they so easily passed into law, as they themselves have committed hostilities against the citizens, and their own constitution they were sworn to protect?

  22. My questions are : With an overwhelming majority of U.S. citizens disapproving of the actions their government has , is, and will probably continue to make, why has the government still been allowed to function as it is? and, What steps can the citizens take to make sure this abomination of the constitution doesn’t continue? With so many citizens against these bills, would it not be fair to say, the president himself, congress, and the senate, have committed several acts of not just treason, but also tyranny, especially in keeping their signing, and the option for the people to vote on these bills private? Is it fair to presume they should be the first to be subjected to the bill they so easily passed into law, as they themselves have committed hostilities against the citizens, and their own constitution they were sworn to protect?

  23. By the Patriot act, the court just have to mention that an American citizen had a friendly relation with a court decided terrorist, and instantly all his rights are useless.

  24. By the Patriot act, the court just have to mention that an American citizen had a friendly relation with a court decided terrorist, and instantly all his rights are useless.