In the armed conflict resulting from the September 11 attacks, the executive authority to order the indefinite detention of citizens captured away from the theater of war is an issue of foreign and domestic significance. The relevant law of armed conflict provisions relevant to conflicts that are international or non-international in nature, however, do not fully address this issue. Congress also intentionally left the question of administrative orders of citizen detainment unresolved in a controversial provision of the 2012 version of the annually-enacted National Defense Authorization Act. While plaintiffs in Hedges v. Obama sought to challenge the enforceability of NDAA’s section 1021 on the basis that it permitted indefinite detention of citizens who are far removed from the theater of war, they were denied relief on the basis of standing and the issue continues to remain undecided. A revision of the language of section 1021, such as one suggested in this Article, might sufficiently quell the fears raised by the Hedges plaintiffs. Yet given that the recent versions of the NDAA have left this provision intact, this Article recommends applying a clear statement rule to section 1021 to construe that provision as not permitting the indefinite detention of citizens captured away from the theater of war.
The NDAA, AUMF, and Citizens Detained Away from the Theater of War: Sounding a Clarion Call for a Clear Statement Rule,
48 Loy. L.A. L. Rev. 927
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