Faculty Journal Articles and Book Chapters


Section 1021 of the 2012 National Defense Authorization Act provides for the indefinite detention of individuals deemed to be part of or substantially supportive of al Qaeda, the Taliban, and associated forces in hostilities against the United States or its coalition allies. Yet the Congress which drafted Section 1021 doesn’t know what its operative terms mean and the Executive Branch simultaneously claims the provisions are problematic yet meaningless and signs them into law. The result is uncertainty over the Executive Branch’s armed conflict detention authority, not on distant battlefields, but here in the United States. This article focuses on three troubling aspects of Section 1021: 1) Its unclear if Section 1021 allows the President to order the indefinite detention of a U.S. citizen or lawful resident alien captured in the United States. 2) Section 1021 upsets a long-standing balance within the U.S. criminal procedure system whereby law enforcement has to choose between protecting the public or prosecuting offenders. In short Section 1021 upsets the risk calculus implicit in New York v Quarles and the public safety exception. 3) There is an alarming lack of discussion on Section 1021 and the contemporary challenges of balancing freedom and security.

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Harvard Journal of Law and Public Policy, Federalist Edition

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