Due Process under the U.S. Constitution and International Law: The Rift Widens

[Jonathan Hafetz is an Associate Professor of Law at Seton Hall Law School and was previously a senior attorney at the ACLU’s National Security Project. He has served as counsel in numerous national security detention cases, including al-Marri v. Spagone.]

The U.S. Senate last week approved an amendment to the FY 2013 National Defense Authorization Act (NDAA) introduced by Senator Diane Feinstein (D-CA) that would make it harder for the government to subject U.S. citizens and lawful permanent residents (LPRs) apprehended in the United States to indefinite military detention.  The amendment—originally proposed last year as the “Due Process Guarantee Act”—provides that such domestic military detention authority cannot be inferred from a declaration of war or an authorization to use military force, but must instead be expressly provided by Congress.

The amendment, however, is hardly a ringing victory for due process.  Its principal effect would be to embed citizenship-based distinctions that undermine protections for millions of non-citizens in the United States (who are not LPRs) and widen the rift between international human rights and the U.S. Constitution.

The Feinstein amendment seeks to resolve the central dispute in the case of Jose Padilla, the U.S. citizen previously held as an “enemy combatant” in a navy brig for three-and-one-half years following his arrest by the FBI in Chicago.  Two federal appeals courts had split on the legality of Padilla’s military detention: the U.S. Court of Appeals for the Second Circuit ruled that the detention was not authorized by the 2001 Authorization for Use of Military Force (AUMF); the U.S. Court of Appeals for the Fourth Circuit reached the opposite conclusion, finding that the AUMF’s grant of detention power extended globally, encompassing even U.S. citizens arrested inside the United States.  Feinstein’s amendment repudiates the Fourth Circuit’s decision, which had inferred a domestic detention power under the AUMF that the amendment says must be expressly granted.

While the amendment would provide greater protection for U.S. citizens, it comes at a cost.  Previously, there was a strong argument that the AUMF did not authorize the domestic detention of any person arrested in the United States, including non-U.S. persons (i.e., non-citizens and non-LPRs).  The AUMF’s domestic application generally was the central issue in the Al-Marri litigation, which, like the Padilla litigation before it, was mooted when the government brought federal criminal charges against both men once their cases reached the Supreme Court.  [Disclosure: I represented Ali al-Marri in his challenge to his indefinite military detention.]  A central argument against the AUMF’s domestic application was that if it extended to non-citizens in the U.S., it necessarily reached citizens as well.  The Supreme Court had already ruled in Hamdi v. Rumsfeld that the AUMF could authorize the detention of U.S. citizens; the question was whether this congressional grant of detention power extended not only to a battlefield in Afghanistan (as in Hamdi), but also to the United States.

Last year, Feinstein successfully introduced an amendment to the FY2012 NDAA that carefully preserved the status quo by specifying that the act did not alter existing law or authorities relating to the detention of individuals arrested in the United States, regardless of citizenship.  But Feinstein’s amendment to this year’s NDAA weakens the effect of that language.  While the new amendment would not authorize the indefinite military detention of non-citizens in the United States who are not LPRs—indeed, it expressly disavows doing so—it would make it more difficult to maintain that the AUMF does not apply to any person arrested inside the United States because it specifies that the clear statement rule extends only to U.S. citizens and LPRs.

Clear statement rules serve an important function, particularly in the politically charged context of counter-terrorism legislation.  They require that statutes be construed to infringe fundamental liberties only to the extent they unequivocally authorize curtailment of such liberties.  By suggesting that Congress must speak clearly only when certain groups’ liberties are affected, the Feinstein amendment endorses the asymmetric protection of core individual rights and weakens the principle that due process applies to all regardless of citizenship.

To be sure, the provision of the U.S. code—18 U.S.C. § 4001—altered by Feinstein’s amendment previously required a clear statement only for the detention of U.S. citizens.  (The question in Padilla was whether § 4001 applied to military force authorizations and, if so, whether the AUMF satisfied it).  In that sense, the Feinstein amendment did not create a new citizenship-based clear statement rule for detention.  But the amendment perpetuates this status-based distinction, while expanding it to the realm of military force authorizations like the AUMF.  In doing so, it undermines the argument that the clear statement rule exists for all domestic military detentions regardless of the detainee’s citizenship.

The amendment’s status-based approach is also problematic under international law.  The right to be free from arbitrary detention under human rights law applies to all individuals regardless of citizenship.  The Feinstein amendment suggests that this right varies based not only on where a person is arrested (inside or outside the U.S.), but also on his citizenship.  It thus deepens the discriminatory treatment of non-citizens that has been a hallmark of the global war on terror.  Indeed, Guantanamo emblemizes a system of de facto and de jure discrimination based on citizenship: only non-citizens are detained there and only non-citizens may be tried there in military commissions under federal law.

The Supreme Court’s 2008 decision in Boumediene v. Bush had de-emphasized citizenship in concluding that Guantanamo detainees had a constitutional right to habeas corpus and possibly to other constitutional protections as well.  The D.C. Circuit, however, has since rejected the argument that Guantanamo detainees have a right to due process, relying heavily on their status as non-citizens.  Feinstein’s amendment underscores the persistence of citizenship-based distinctions even among those who seek to advance the protection of individual rights.   Further, once citizens are protected, it will be even more difficult politically to extend the same protections to non-citizens.