June 15, 2018
In 2011, section 1021 was added to the National Defense Authorization Act (NDAA). This text, which features vague language associated with the detention of “covered persons,” set off alarm bells among civil rights watchdogs.
Section 1021 reads in part:
Affirmation of authority of the Armed Forces of the United States to detain covered persons pursuant to the Authorization for Use of Military Force.
(a) In General.–Congress affirms that the authority of the
President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
(b) Covered Persons.–A covered person under this section is any person as follows:
(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
While subsection (e) states that “nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States,” Senator Mike Lee (R-UT) believes further clarification is necessary to prevent citizens or legal permanent residents living in the United States from being detained indefinitely without charge.
When then-President Obama signed the bill into law on December 31, 2011, he stated in part:
I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.
This assurance wasn’t enough to satisfy many civil rights advocates. In late 2011, Senator Lee and Senator Dianne Feinstein (D-CA) introduced the “Due Process Guarantee Act,” which seeks to clarify the existing law regarding detention of U.S. citizens and lawful permanent residents.
The legislation reads in part:
Sec. 2. Prohibition on the indefinite detention of citizens and lawful permanent residents.
(a) IN GENERAL.—Section 4001 of title 18, United States Code, is amended by striking subsection (a) and inserting the following:
“(a) No citizen or lawful permanent resident of the United States shall be imprisoned or otherwise detained by the United States except consistent with the Constitution and pursuant to an act of Congress that expressly authorizes such imprisonment or detention.”
…”(b)(1) A general authorization to use military force, a declaration of war, or any similar authority, on its own, shall not be construed to authorize the imprisonment or detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States.
“(2) Paragraph (1) applies to an authorization to use military force, a declaration of war, or any similar authority enacted before, on, or after the date of the enactment of the Due Process Guarantee Act.
“(3) This section shall not be construed to authorize the imprisonment or detention of a citizen of the United States, a lawful permanent resident of the United States, or any other person who is apprehended in the United States.”
Currently, 18 U.S. Code 4001 subsection (a) reads: “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”
The Daily Wire spoke with Senator Lee about his legislation:
DW: In brief, what is the Due Process Guarantee Act?
LEE: It’s there to protect U.S. citizens and lawful permanent residents from indefinite detention without trial, without charge, without counsel on U.S. soil.
The need for it arose when Congress passed the National Defense Authorization Act (NDAA) for fiscal year 2012 sometime in the fall of 2011. Section 1021 of that act contained language purporting to authorize the federal government to detain people – even U.S. citizens apprehended on U.S. soil – indefinitely without charge, without trial, based solely on the type of accusations against them. If you were accused of being a terrorist … even if you were a United States citizen apprehended on U.S. soil, you can be held without charge or trial, without any of the due process protections that the American people have.
There were a number of us who were concerned about it, and Senator [Dianne] Feinstein and I teamed up at that point, and decided to come up with legislation to address it. We ended up introducing something called the Due Process Guarantee Act. We’ve been pushing that now for the last six years. It actually passed the Senate with 67 votes, but it was inexplicably removed from the NDAA when it went through conference committee.
DW: Do you know who removed it?
LEE: I don’t. Conference committees are a black box. We’ve been trying to get a vote on it ever since. Each year, we’ve been blocked in one way or another from getting it voted into the NDAA.
DW: Why is this such a contentious thing?
LEE: Well, it shouldn’t be. It’s not really all that contentious in the sense that a few years ago, it was 67 senators who voted for it. This week, it was 68 senators who voted for it – at least in the sense that 68 voted against the motion to table it. The overwhelming majority of senators seem to think that it’s a good idea.
Those who oppose it appear to do so based on the argument that we’ve got to protect American national security. I get it. Nobody wants to say, “Yeah, I want to be on the side of terrorists” – that’s not the point anyone is making here. What we’re saying is, regardless of what you choose to do with someone who’s apprehended overseas, or even what you decide to do with someone who sneaks into the United States illegally for purposes of harming us, we ought at a minimum be able to draw the line at U.S. citizens who are apprehended while on U.S. soil. They deserve to have access to the panoply of due process protections afforded by the Constitution.
DW: How does section 1021 not run contrary to the Fourth Amendment?
LEE: It does run contrary to a number of protections in the Constitution, including the Fourth Amendment, Fifth Amendment, and Sixth Amendment. I don’t believe it’s constitutional. But in order to invalidate a law, you have to have an actual case or controversy. It’s not as simple as just saying, “Well, let’s bring it to court and get it invalidated.” You have to have an instance in which it’s being invoked, and someone who can actually challenge it.
In the meantime, this law sits on the books for years, and as it sits on the books, there’s always a risk that it acquires more perceived legitimacy, and that’s not a good place to go in a constitutional republic where we want to limit the power of government, and thereby protect the rights of the individual.
DW: The bill hasn’t been tabled. So what’s the next step?
LEE: The final bill hasn’t been passed yet. Final passage of the bill is set to occur on Monday. If between now and then, senators consent to bring it up for a vote, then we could vote on it, and it could pass. If that doesn’t happen, we will continue to look for other opportunities to bring this up.
DW: Subsection (e) of Section 1021 states that “nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” Does that make the Due Process Guarantee Act redundant?
LEE: Technically, no. The earlier clause contains a prohibition. This clause says that nothing in this legislation can be read as authorizing indefinite detention.
In a short matter of time, we will know if the Due Process Guarantee Act moves forward as law. The Daily Wire would like to thank Senator Lee for taking the time to speak with us on this issue.