Closing a loophole in the war on terror

Can a U.S. citizen arrested in this country on terrorism charges be detained without trial? As with other aspects of the war on terror, the answer isn’t clear. Sen. Dianne Feinstein (D-Calif.) has proposed important legislation that would end the ambiguity and explicitly prohibit indefinite detention in such cases.

A defense authorization bill signed by President Obama last year authorized the military to detain any “person” who supported Al Qaeda, the Taliban “or associated forces.” But it also said that nothing in the bill “shall be construed to affect existing law or authorities, relating to the detention of United States citizens, lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.” In signing the bill, Obama promised that his administration “will not authorize the indefinite military detention without trial of American citizens.”

But there is no guarantee that Obama will be president after this year’s election, which means that U.S. citizens would be protected only by the “existing law” referred to in the defense authorization. And there is at least one source for the proposition that U.S. citizens could be detained without trial under the laws of war: a 2004 Supreme Court decision called Hamdi vs. Rumsfeld. In that ruling, Justice Sandra Day O’Connor wrote that the government could hold a U.S. citizen as an enemy combatant provided the prisoner had the opportunity to rebut charges before a “neutral decision-maker.”

But that is not the same thing as a civilian trial. Nor is the opportunity to petition for a writ of habeas corpus, which is available even to foreign detainees. Important as habeas is, it falls short of affording the protections of a jury trial.


Feinstein’s proposed Due Process Guarantee Act states: “An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an act of Congress expressly authorizes such detention.”

Adding Feinstein’s language to the 2013 defense authorization bill would do away with an ambiguity that a future administration could exploit to hold Americans without trial. The question is whether it goes far enough. Not only U.S. citizens arrested in the United States but those arrested abroad — and, for that matter, all suspected terrorists — should be afforded a civilian trial.

Unfortunately, despite the proven success of the civilian justice system in trying terrorism cases, Congress continues to thwart the administration’s original plan to hold civilian trials for detainees now held at Guantanamo, including Khalid Shaikh Mohammed, the self-proclaimed architect of the Sept. 11 attacks. (Mohammed and four confederates are instead being tried by a military commission.) Congress should establish one system of justice for all suspected terrorists, but the Feinstein bill would at least codify Obama’s promise that no U.S. citizen will be held without trial.