Louis Fisher Slams Detention of US Citizens Without Trial in CRS Report

Secrecy News 04/28/05 breaks the story of a new report from the Congressional Research Service that disputes the Bush Administration's claim that the President has unlimited authority to detain American citizens in wartime if he deems them to be enemy combatants.

Significantly, “Detention of U.S. Citizens,” Congressional Research Service, April 28, 2005, is by the highly respected Louis Fisher, an authority on constitutional law.

The introduction says that the report is aimed at a core issue raised in the Padilla case:

In 1971, Congress passed legislation to repeal the Emergency Detention Act of 1950 and to enact the following language: “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” The new language, codified at 18 U.S.C. §4001(a), is called the Non-Detention Act. This statutory provision received attention after the 9/11 terrorist attacks when the Administration designated certain U.S. citizens as “enemy combatants” and claimed the right to detain them indefinitely without charging them, bringing them to trial, or giving them access to counsel. In litigation over Yaser Esam Hamdi and Jose Padilla, both designated enemy combatants, the Administration has argued that the Non-Detention Act restricts only imprisonments and detentions by the Attorney General, not by the President or military authorities.

And the conclusion is blunt:

Legislative debate, committee reports, and the political context of 1971 indicate that when Congress enacted Section 4001(a) it intended the statutory language to restrict all detentions by the executive branch, not merely those by the Attorney General. Lawmakers, both supporters and opponents of Section 4001(a), recognized that it would restrict the President and military authorities.

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