Detention revisited

I week ago I was troubled by reports that the new defense bill would give the president the power to detain US citizens indefinitely if they were supporting various terrorist groups. But almost immediately I read other reports that said that the bill actually did not change the law in this regard. Both reports came from respectable, knowledgeable people, and I was left confused.

Today I read two posts on law blogs that have left me convinced of the latter position, that the bill does not change the law in regard to detention of US citizens. In fact, it seems that the bill contains an amendment that states explicitly that it does not change the law on detention of US citizens.

Robert Chesney explains where the case law currently stands, and it strikes me as pretty reasonable. On foreign battlefields, US citizens can be detained like anyone else. On US soil, probably not. In a foreign theater but outside a battlefield, the law is uncertain, as no test case has yet arisen.

Kenneth Anderson adds that none of these detainees are beyond the reach of legal appeals:

Lastly, I’d add that in virtue of being statutorily prescribed as the court for hearing detainee appeals, the DC Circuit has emerged as something of the US’s de facto national security court; it has been gradually working out the contours and standards of habeas review and all the procedural and evidentiary questions that are implied by that.

I’d rather the rules were instituted by legislation, rather than made up by the courts, but that said, the rules the courts are adopting seem pretty reasonable.

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