The Future of Law of War Detention for Persons Captured in the United States

Coauthored with Robert Chesney

Testimony before the House Committee on the Judiciary, “Protecting U.S. Citizens’ Constitutional Rights During the War on Terror.”

Thank you, Chairman Goodlatte, Ranking Member Conyers, and members of the committee for this opportunity to give our views on the subject of military detention under the laws of war of terrorist suspects arrested within the United States.

This written statement represents the views of Robert Chesney, Professor of Law at the University of Texas School of Law and Non-Resident Senior Fellow at the Brookings Institution, and Benjamin Wittes, Senior Fellow at the Brookings Institution.

We would like to make four major points today, points which lead to a single recommendation:

First, a review of the relevant case law suggests that the Supreme Court as currently aligned would probably not approve the use of long-term military detention under color of the Authorization for the Use of Military force (AUMF) with respect to a United States citizen detainee who was arrested by law enforcement authorities within the United States. Whether it would approve detention for a non-citizen captured within the United States is also in doubt, though the matter is less clear in that setting.

Second, current criminal justice authorities provide ample grounds for ensuring the incapacitation of such persons in most foreseeable instances. There is little if anything to be gained for the executive branch in gambling with the domestic military detention option, which would carry significant litigation risk and guarantee divisive political friction.

Third, although the Bush administration did use military detention for domestic captures in two instances—one involving a citizen, another a non-citizen—it typically relied on the criminal justice system instead. Indeed, in the case of the citizen detainee, it eventually backed away in the face of a looming judicial reversal. The Obama administration has stayed this course, taking similar action with respect to the domestic non-citizen detainee in military custody. Today it is highly unlikely that an administration of either party would attempt to use these authorities again.

Fourth, because these options nonetheless have not formally been foreclosed in law, there are periodic surges of interest in them by both political supporters and opponents. Supporters demand their use in cases like that of the Boston Marathon bombing. Opponents, meanwhile, have gone to court to seek injunctive relief against law of war detention authorities based on speculative fears of military detentions that will not take place.  All of this is disruptive, undesirable, and unnecessary.

Based on these observations, we therefore recommend that Congress codify in statute today’s practical status quo. That is, Congress should state explicitly that detention authority under the AUMF and the NDAA does not extend to any persons captured within the territory of the United States. We provide a more expansive discussion of these points below, in two parts.  The first part outlines the legal context against which these issues arise today.  The second discusses the practical and policy consequences of leaving the current status quo uncodified in statute and explains our recommendation for legislation.

To read the full statement, click here.

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