An Initial Thought on the Due Process Guarantee Act

It may surprise some readers, but I find myself oddly attracted to the Due Process Guarantee Act--which Steve described last night. The bill is cast as a response to the NDAA detention authorization provisions. But I'm not really sure the two are in particular conflict, and I'm not sure either that someone like me--who supports carefully crafted detention authorities and wants them written in statute--shouldn't support both. The reason is, quite simply, that the DPGA would require Congress, in authorizing a conflict, to think about what it might mean for the detention of citizens and permanent resident aliens at home. The AUMF, written in haste after September 11, ignored the subject of detention entirely, leaving a vexing problem with which we have, as a consequence, struggled for years: What is the scope of detention authority in the conflict with Al Qaeda and the Taliban generally, and to what extent does it reach U.S. nationals, in particular? The DPGA would provide a structural baseline for the answer to this question: In the absence of a clear statement in any authorization for force that the authorization encompasses detention of a U.S. national apprehended domestically, it wouldn't. That would not preclude a carefully drawn detention scheme of a type I might support. It would prevent a generally-worded authorization to fight the enemy abroad from being construed to support detention at home. And it might be a useful supplement to the NDAA language just passed authorizing detention operations in general but still leaving ambiguous the posture of the Congress with respect to U.S. citizens. If we imagined both laws in effect, they would operate in tandem as follows: Detention operations under the AUMF are authorized with respect to those who are part of or substantially supporting enemy forces, but U.S. citizens and permanent residents captured domestically are not (under the DPGA) subject to detention in the absence of a clear statement by Congress that they are. Congress has never made such a clear statement for this conflict, so until it does, domestic citizen detention is precluded. That seems to me a pretty reasonable default rule.