Detention of U.S. Citizens

Detention of U.S. Citizens

Order Code RS22130
April 28, 2005
CRS Report for Congress
Received through the CRS Web
Detention of U.S. Citizens
Louis Fisher
Senior Specialist in Separation of Powers
Government and Finance Division
Summary
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. For more detailed analysis, see CRS Report RL31724,
Detention of American Citizens as Enemy Combatants, by Jennifer K. Elsea. This report
will be updated as events warrant.
Emergency Detention Act
In 1950, Congress passed the Internal Security Act to require Communist and
Communist-front organizations to register with the Attorney General. Title II of the
statute was called the “Emergency Detention Act.” Any person the Administration
determined would probably commit espionage or sabotage could be detained if the
President declared the existence of an “internal security emergency.” Individuals detained
would be given a preliminary hearing before an officer in the executive branch, but the
statute authorized the Attorney General to decline to furnish information that would reveal
the identity of special agents. Six detention camps were established but never used.
In 1971, Congress passed legislation to repeal the Emergency Detention Act of 1950
and to enact new language reading: “No citizen shall be imprisoned or otherwise detained
by the United States except pursuant to an Act of Congress.” P.L. 92-128, 85 Stat. 347
(1971). The new language, codified at 18 U.S.C. § 4001(a), is called the “Non-Detention
Act.”
Congressional Research Service ˜ The Library of Congress

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In litigation after the terrorist attacks of 9/11, the Administration has argued that
Section 4001(a) “does not apply to the military’s wartime detention of enemy
combatants.” Respondent’s Opposition to the Motion for Summary Judgment, Padilla
v. Hanft, Nov. 22, 2004 (D.S.C.), at 20. By the Government’s analysis, Section 4001(a)
“has no bearing on the military’s authority to detain enemy combatants in wartime,” in
part because Section 4001(a) was a separate enactment “to an existing provision in United
States Code Title 18 (‘Crimes and Criminal Procedure’) rather than Title 10 (‘Armed
Forces’) or Title 50 (‘War and National Defense’).” Id. at 29. The Government states
that the existing provision “was directed to the Attorney General’s control over federal
prisons; its terms, which remain unchanged, stated that the ‘control and management of
Federal penal and correctional institutions, except military or naval institutions, shall be
vested in the Attorney General.’” Id. (emphasis in original).
In order to accept this analysis, one would have to believe that Congress, in 1971,
intended to limit imprisonment or detention by civilian authorities (unless specifically
authorized by Congress), but allow military authorities to imprison or detain without an
Act of Congress. The legislative history does not support that interpretation, which would
leave open some inherent presidential power to accomplish the same feat by military
means.
Urban Riots of the 1960s
The purpose of Section 4001(a) is clarified by an understanding of the political
pressures that emerged with the urban riots that spread across the nation after 1964. In
signing the Non-Detention Act of 1971, President Richard M. Nixon explained that the
Administration was “wholeheartedly” in support of the repeal of the Emergency Detention
Act, and he wanted “to underscore this Nation’s abiding respect for the liberty of the
individual. Our democracy is built upon the constitutional guarantee that every citizen
will be afforded due process of law. There is no place in American life for the kind of
anxiety — however unwarranted — which the Emergency Detention Act has evidently
engendered.” Public Papers of the Presidents, 1971, at 986. His statement appears to
cover both domestic and military detention, for it would do little to alleviate anxiety if
individuals and groups knew they were vulnerable to detention by military authorities.
President Nixon added: “This strong country has no reason to fear that the normal
processes of law — together with those special emergency powers which the Constitution
grants to the Chief Executive — will be inadequate to deal with any situation, no matter
how grave, that may arise in the future.” Id. He did not elaborate on the “special
emergency powers” available from the Constitution rather than from statutes. Did his
additional remark suggest that, under the constitutional power as Commander in Chief,
the President could order the military to arrest and detain individuals and groups without
statutory authority? Such a claim would conflict with his promise that “every citizen will
be afforded due process of law.” The legislative history of the Non-Detention Act, set
forth in subsequent sections of this report, offers no support for the proposition that the
President could use the military to detain U.S. citizens.
Congress acted legislatively in 1971 under pressure from two sources. In 1968, the
Japanese American Citizens League, with more than 25,000 members and 92 chapters in
32 states, spearheaded a nationwide drive to repeal the Emergency Detention Act. 117
Cong. Rec. 31535 (statement of Representative Evins). Second, in 1968, the House

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Committee on Un-American Activities submitted a report that recommended the possible
use of camps to detain certain black nationalists and Communists. H.Rept. No. 1351, at
59 (1968); S.Rept. No. 91-632, at 3 (1969) (letter of Senator Inouye).
It was in this climate that Deputy Attorney General Richard G. Kleindienst wrote to
the Senate Committee on the Judiciary in 1969, recommending repeal of the Emergency
Detention Act. He explained, “In the judgment of this Department, the repeal of this
legislation will allay the fears and suspicions — unfounded as they may be — of many
of our citizens.” S.Rept. No. 91-632, at 4 (1969). Leaving citizens vulnerable to military
detention would not allay those fears and suspicions.
In 1969, the Senate passed legislation to repeal the Emergency Detention Act.
Senator Daniel Inouye, who introduced the bill, said he became “aware of the widespread
rumors circulated throughout our Nation that the Federal Government was readying
concentration camps to be filled with those who hold unpopular views and beliefs. These
rumors are widely circulated and are believed in many urban ghettoes as well as by those
dissidents who are at odds with many of the policies of the United States. Fear of
internment, I believe, lurks for many of those who are by birth or choice not ‘in tune’ or
‘in line’ with the rest of the country.” 115 Cong. Rec. 40702 (1969). The Senate passed
the bill by voice vote. Id.
The House did not act on the Senate bill. Instead, the House Committee on Internal
Security (formerly the House Committee on Un-American Activities) reported legislation
in 1970 to amend certain provisions of the Emergency Detention Act “so as to relieve any
misapprehension as to the circumstances in which is may be applied . . . [M]isinformation
regarding the terms and possible application of the act, by which it is made to appear that
the title would authorize the establishment of ‘concentration camps’ for the incarceration
of racial groups, has received wide dissemination within recent years.” H.Rept. 91-1599,
at 1 (1970). As part of the amendments, the committee proposed adding this language:
“No citizen of the United States shall be apprehended or detained pursuant to the
provisions of this title on account of race, color, or ancestry.” Id. at 17. The dissenting
view of Representative Louis Stokes in this report said that the new language would no
nothing “to quash the fears and rumors in the black community.” Id. at 23.
Restricting Both Civilian and Military Authorities
The legislative history of Section 4001(a) underscores the intent of Congress to limit
all government power, whether exercised by civil or military authorities. In 1971, the
House Committee on Internal Security again reported a bill to amend the Emergency
Detention Act. H.Rept. No. 92-94 (1971). However, the House was moving in the
direction of the Senate bill and chose to repeal, rather than amend, the Emergency
Detention Act. Initially, the House Judiciary Committee adopted an amendment by
Representative Spark Matsunaga, stating: “No person shall be detained except pursuant
to title 18.” 117 Cong. Rec. 31755 (statements by Representatives Ichord and Railsback).
As explained below, the Justice Department advised Congress that the power of
government to detain individuals is not limited to Title 18, but appears in other Titles of
the U.S. Code.
As a consequence, the House Judiciary Committee reported legislation to repeal the
Act and to add this language to Title 18: “No citizen shall be imprisoned or otherwise

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detained by the United States except pursuant to an Act of Congress.” H.Rept. No. 92-
116, at 1 (1971). Nothing in the report implies that the provision on imprisonment and
detention applied only to civilian authorities (covered by Title 18) and indirectly or by
implication recognized an independent power by the President or the military to imprison
or detain. The committee was responding to the political situation described by Assistant
Attorney General Robert Mardian in his testimony. He said that the Justice Department
was “unequivocally in favor” of repealing the Emergency Detention Act, and reminded
the committee of a letter written by Deputy Attorney General Kleindienst, who regarded
continuation of the Act as “extremely offensive to many Americans. In the judgment of
this Department, the repeal of this legislation will allay the fears and suspicions —
unfounded as they may be — of many of our citizens.” Id. at 3. Those fears and
suspicions would not be allayed if military authorities possessed independent power to
imprison and detain U.S. citizens suspected of posing a danger to national security.
The committee left unchanged the following language as part of Section 4001: “The
control and management of Federal penal and correctional institutions, except military or
naval institutions, shall be vested in the Attorney General . . . .” Id. at 6. The
Government interprets the exception clause as support for military imprisonment and
detention, but the exception merely recognizes that the Attorney General’s jurisdiction
does not cover military or naval institutions. The exception clause did not sanction
military detentions.
During House debate, several Members acknowledged that Congress was about to
place limits not merely on the Attorney General but also on the President and the military.
Representative H. Allen Smith expressed concern that the proposed legislation would
interfere with the kind of emergency actions taken by President Roosevelt immediately
after Pearl Harbor, including taking aliens into custody. In 1942, Roosevelt also ordered
the curfew and detention of Japanese-Americans without first receiving statutory
authority. Smith supported the repeal of the Emergency Detention Act but objected
strongly to adding new language: “[I]f the President were absolutely handicapped by this
language that no citizens shall be imprisoned or otherwise detained by the United States
except pursuant to an act of Congress, what could he possibly do if there were an
emergency?” 117 Cong. Rec. 31536. The Justice Department, however, had testified to
Congress that “[t]here is a considerable amount of statutory authority to protect the
Internal Security interests of our country from sabotage and espionage or other similar
attacks.” Id.
Representative Thomas F. Railsback, who sponsored the language that became
Section 4001(a), responded to Smith in this manner: “If we are concerned about what
happened in 1942 when there really was not a statute existing upon which the President
relied, then we have to do something in addition if we really want to prevent some kind
of recurrence of what happened in 1942.” Id. at 31537. In this way, Railsback argued that
mere repeal of the Emergency Detention Act would not suffice. Only the adoption of
new language would prevent the President from detaining U.S. citizens until he received
statutory authority.
The question of whether Section 4001(a) was confined to detention by civilian
authorities under Title 18 was debated extensively in the House. Representative Abner
Mikva recalled that a Justice Department official had testified “very wisely, that many of
the provisions that do allow detention and imprisonment appear in other sections than title

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18. He made reference to them including 26 and 49, and in response to the Department
of Justice opposition to that over extension, the Railsback amendment came into being,
which made it very clear that we are not talking about title 18 but any detention
authorized by an act of Congress.” Id. at 31538.
Representative Robert Kastenmeier, who managed the bill, also spoke of detention
and imprisonment authorities outside of Title 18. He referred to testimony from a Justice
Department official that it was a mistake to assume “that all provisions for the detention
of convicted persons are contained in title 18. He pointed to a number of criminal
provisions that appear in other titles; for example, titles 21 — narcotics; 50 — selective
service; 26 — internal revenue; and 49 — airplane hijacking.” Id. at 31540. Kastenmeier
explained why the Railsback Amendment would restrict both civilian and military
authorities:
To alleviate these problems raised by the Department of Justice, the committee
recommends an amendment that would take the place of sections 1 and 2. The
amendment provides that no citizen shall be imprisoned or otherwise detained by the
United States except pursuant to an act of Congress.
In this way, the legislation also avoids the pitfalls that might be created by
repealing the Detention Act by leaving open the possibility that people might
nevertheless be detained without the benefit of due process, merely by executive fiat.
In other words, the requirement of legislation authorization would close off the
possibility that the repeal of the Detention Act could be viewed as simply leaving the
field unoccupied. It provides that there must be statutory authority for the detention
of a citizen by the United States. Existing detention practices are left unaffected.
Incarceration for civil and criminal contempt, and detention of mental defectives, for
example, are already covered by statutes. Id. at 31541.
Instead of identifying all the Titles of the U. S. Code that authorize imprisonment
and detention, the committee decided to replace the original sections 1 and 2 with a single
provision: “No citizen shall be imprisoned or otherwise detained by the United States
except pursuant to an act of Congress.” Id. (Representative Richard Poff). The political
climate of the Non-Detention Act (fear and anxiety by U.S. citizens of arbitrary
imprisonment and detention) combined with the legislative history provide persuasive
evidence that the purpose of repealing the Emergency Detention Act and adding the
Railsback Amendment was to strip from the executive branch — both its civilian and
military components — of any claim of independent authority to round up, imprison, and
detain disfavored individuals or groups.
Limiting Executive and Presidential Actions

The constitutional protections of due process apply fully to the Administration
because Section 4001(a) limits not merely the authority of the Attorney General over
civilian institutions, under Title 18, but also more generally executive and presidential
actions. Kastenmeier emphasized that “[r]epeal alone might leave citizens subject to
arbitrary executive action, with no clear demarcation of the limits of executive authority.”
Id. at 31541. Representative Poff noted that the bill’s sponsors and the House Judiciary
Committee “did not content themselves with a simple repeal of the Emergency Detention
Act, because it is far from certain what effect a simple repealer would have on the
President’s powers to detain persons during an internal security emergency.” Id.

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Representative Richard Ichord, who opposed the Railsback Amendment, warned that
“this most dangerous committee amendment [would] deprive the President of his
emergency powers and his most effective means of coping with sabotage and espionage
agents in war-related crises. Hence the amendment also has the consequence of doing
patent violence to the constitutional principle of separation of powers.” Id. at 31542.
Railsback’s amendment “would deny to the President the means of executing his
constitutional duties, and could have the effect of rendering him helpless to cope with the
depredations of those hard-core revolutionaries in our midst who, in the event of war, may
be reasonably expected to attempt a widespread campaign of sabotage and bloodletting,
including the assassination of public officials, in aid of the enemy.” Id. at 31544.
Representative Lawrence Williams opposed the Railsback Amendment because he did
“not want to see the President’s hands tied,” objecting to language that “would represent
an arrogant invasion of the emergency powers of the President.” Id. at 31554.

Railsback stated that his amendment “eliminates whatever authority the President
would have on his own to establish detention camps except in those cases of emergency
when martial law may properly be invoked. . . . Nothing Congress does can affect
executive martial-law powers which arise when the processes of government cannot
function in an orderly way. For that is truly a ‘nonlaw’ situation.” Id. at 31755.
With the House prepared to repeal the Emergency Detention Act, Ichord urged that
the following amendment be adopted in the nature of a substitute for the Judiciary
Committee amendment:
That the prior enactment and repeal herein of provisions of Title II
of the Internal Security Act of 1950 (50 U.S.C. 811-826) shall not be
construed to preempt, disparage, or affect the powers accorded to or the
duties imposed upon the President under the Constitution and other laws
of the United States: provided, however, that no citizen of the United
States shall be apprehended or detained for the prevention of espionage or
sabotage solely on account of race, color, or ancestry. Id. at 31545.
Ichord’s amendment failed to pass, the House voting 124 to 272. Id. at 31766-67.
An earlier Ichord amendment, to revise some of the provisions of the Emergency
Detention act, failed by a vote of 22 to 68. Id. at 31761. After the Judiciary Committee
amendment (adapted by Railsback) was agreed to, 290 to 111, the bill passed the House
356 to 49. Id. at 31768, 31781. The Senate passed the House bill by voice vote. Id. at
32145. The Supreme Court has interpreted Section 4001(a) to proscribe “detention of any
kind by the United States, absent a congressional grant of authority to detain.” Howe v.
Smith, 452 U.S. 473, 479 n.3 (1981) (emphasis in original).
Conclusions
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.