On the question of whether U.S. citizens captured on the battlefield may be detained by the military in the United States, the U.S. Supreme Court held in 2004 in Hamdi v. Rumsfeld that a U.S. citizen has due process rights and the ability to challenge the legality of their detention in U.S. federal courts. The 2012 NDAA merely codifies what the U.S. Supreme Court already said: The detainee provisions in the 2012 NDAA in no way undermine a U.S. citizen’s due process or habeas rights, as some have claimed.
The 2012 NDAA also requires the secretary of defense to regularly brief Congress on which terrorist groups constitute “associated forces” to further ensure rigorous and routine oversight by our elected officials.
Section 1022 of the 2012 NDAA requires mandatory detention of foreign al Qaida terrorists and does not in any way apply to any U.S. citizens or legal residents of the U.S. Section 1022 also includes a national security waiver for the president that has absolutely nothing to do with U.S. citizens. The national security waiver for the president in Section 1022 only allows the president to determine that a foreign al Qaida terrorist should be held in civilian custody instead of military custody.
Section 1022’s use of the word “requirement” also has been misinterpreted as allowing U.S. citizens to be detained, but this provision does not in any way create this authority. This provision must be read in the context of Section 1022’s purpose, which is reflected in its title and relates solely to “military custody of foreign al Qaida terrorists.” The term “requirement” does not mean that detention of U.S. citizens is optional under this provision.
We all share an important responsibility as U.S. citizens to zealously protect our civil liberties as enshrined in the Constitution. As a member of Congress, I am always open to ways to improve our legal mechanisms for keeping America safe without compromising our civil liberties. However, Congress cannot do this effectively when people arrive at their conclusion first — that Congress has somehow shredded the Bill of Rights — and the facts second.
Rep. Tim Griffin is a freshman member of the U.S. House of Representatives from Arkansas’s Second Congressional District. He is member of the House Armed Services Committee, the House Committee on Foreign Affairs, and the House Committee on the Judiciary. He also is serving in his 16th year as an officer in the U.S. Army Reserve, Judge Advocate General’s (JAG) Corps where he holds the rank of major.