Myths on the New Detainee Policy

The author, Buck McKeon (R-Calif.), is Chairman of the House Committee on Armed Services

As many of you know, Congress is working to pass the National Defense Authorization Act for 2012. One of the provisions in the bill, pertaining to our terrorist detainee policy, has created a stir among Constitutionally-minded citizens.


Thank you to Red State for allowing me space to clarify what is and what is not in this provision. Sometimes when we feel strongly about an important issue, such as our liberty, the debate can be muddled by hyperbole and passion. It is my sincere hope that we can use this opportunity to give you the exact details on what this provision seeks to accomplish, so that we are not rejecting an entire defense bill –which provides pay and supplies to our troops- based on incorrect or inflated statements in the media.

Understand that I share your concerns about government intrusion on our civil liberties. I do not believe we must choose between our security and our freedom, but I am also keenly aware of the fact that we must be smart about combating terrorists like the Underwear or Times Square bomber who seek to exploit our free society in order to do us harm.

The provision we included in the defense authorization act does not address or extend new authority to detain U.S. Citizens. What it does do is affirm that the military may lawfully detain foreign individuals who are engaged in armed conflict with the United States, as stated by the Authorization of the Use of Military Force. It does not, under any circumstances, strip or remove habeas rights – as some organizations like the ALCU have claimed. Anyone -foreign born or not- who is detained by the military or civilian law enforcement, is free to openly challenge their detention before a federal judge.


In cases such as the Christmas Day Bomber, where a foreign terrorist is caught in a plot to attack the United States, the provision establishes a new requirement for military custody. This is to ensure that terrorists cannot be brought to American shores. The provision only applies to individuals who are part of, or substantially supporting, Al Qaeda or associated forces AND have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners. I’m sure we agree that it is vital that terrorists bent on waging war against American freedom are treated according to the laws of war, not treated like simple criminals.

The provision further provides a waiver for the President when such a requirement is not in the national security interests of the United States. Most importantly, the provision  explicitly exempts U.S. citizens from the requirement. The President cannot, under any circumstances, waive the U.S. citizen exemption.

I have included a link to the House Armed Services Committee Republicans website, which has a summary of our detainee provisions included for your review.

Thank you for expressing your concerns about the detainee provisions in the defense bill. The citizen’s role in maintaining oversight of government authority is a critical function of our Republic, and I am happy to see that our shared love of flag and freedom is alive and well. I have included the language as it exists in our bill below, so that you may decide for yourselves if your rights as US citizens would be impeded by this legislation.


Section 1021 of the FY 2012 National Defense Authorization Act
Page 656: “The requirement to detain a person in military custody under this section does not extend to citizens of the United States.

Page 655: “Nothing in this section 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”



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