The FY2013 NDAA and Domestic Detention--Now With More Misdirection

Ben is a far better wordsmith than I--"a little cowardly" communicates a lot more in a lot less than my post from Tuesday afternoon about why the House Armed Services Committee's version of the FY2013 National Defense Authorization Act does absolutely nothing to ameliorate the domestic detention concerns voiced from both ends of the political spectrum in response to the FY2012 NDAA. Moreover, I think Ben hits the nail on the head in suggesting with respect to the HASC bill that "its very purpose is to be inconsequential." But it's not just that the language in the HASC version of the FY2013 NDAA is designed to be inconsequential; it only works if it can at once (1) be inconsequential; and (2) look like it does a great deal. Without (2), one couldn't argue that there's simply no need for proposals like the Smith-Amash amendment (of course, one might still object to such proposals on substantive grounds, but alas, that's another matter).

It seems that the secret may be out:

An amendment being proposed by Rep. Louis Gohmert is rumored to be circulating as a suggested "fix" to the Chairman's Mark--as doing what the original bill did not do, i.e., adequately protecting the rights of individuals within the United States. On my reading, the Gohmert Amendment makes three material changes to the Chairman's Mark:

1. It narrows the scope of the statutory habeas protection to individuals "lawfully in the United States when detained," as opposed to those "detained in the United States."
2. It adds a new notification provision requiring that the President notify Congress within 48 hours of subjecting to military detention an individual "lawfully in the United States when detained."
3. It specifies that "A person who is lawfully in the United States when detained pursuant to the [AUMF] shall be allowed to file an application for habeas corpus relief in an appropriate district court not later than 30 days after the date on which such person is placed in military custody."

Just to be clear, the Gohmert Amendment does nothing whatsoever to address the central objections to the Chairman's Mark vis-a-vis domestic detention, which are that it (1) merely provides by statute a remedy that is already available to individuals detained within the United States; and (2) says nothing about the circumstances in which individuals might actually be subject to military detention when arrested within the territorial United States (that is, whether individuals using the provided-for remedy might actually prevail). Anyone within the United States who was subject to military detention before the FY2013 NDAA would be subject to it afterwards, as well, at least under the Chairman's Mark (and with or without the Gohmert Amendment).

Moreover, in my view, the Gohmert Amendment actually makes things worse in two very significant respects: First, it introduces uncertainty regarding whether individuals arrested within the United States but out of immigration status are entitled to pursue habeas relief (never mind the countless immigration cases where such relief has historically been available--and the compelling constitutional arguments supporting that jurisprudence). Second, the 30-day provision would arguably allow the government to preclude a detainee's access to court (or counsel) for 30 days, whereas under current law, the detainee may file the moment he is "in custody under or by color of the authority of the United States."

As I wrote on Tuesday, the only way to address the concerns folks have about the potential domestic application of the AUMF and the NDAA is to do so explicitly by delineating with precision who may, and who may not, be subjected to military detention when arrested within the territorial United States. Whatever else one might say about the Smith-Amash amendment, it does exactly what the Chairman's Mark, the Gohmert Amendment, and a host of the other proposals on the table refuse to do: It takes this central substantive issue seriously.