in 1971, Congress passed and President Nixon signed into law the Non-Detention Act of 1971, which repealed a 1950 statute that explicitly allowed detention of U.S. citizens. The Non-Detention Act of 1971 clearly states: No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an act of Congress. Despite this history, during last year's debate on the Defense authorization bill some in this body advocated for the indefinite detention of American citizens. This is an issue that has been the subject of much legal controversy since 9/11. Proponents of indefinitely detaining U.S. citizens argue that the Authorization for Use of Military Force, AUMF, that was enacted in the wake of 9/11 is ``an act of Congress,'' in the language of the Non- Detention Act, that authorizes the indefinite detention of American citizens regardless of where they are captured. We heard this argument again tonight from Senators Levin and Graham. They assert that their position is justified by the U.S. Supreme Court's plurality decision in the 2004 case of Hamdi v. Rumsfeld. However, that position is undercut by the 2003 case of Padilla v. Rumsfeld in the Second Circuit Court of Appeals. But let me discuss the facts of Hamdi because it is important to note that Yaser Esam Hamdi was a U.S. citizen who took up arms on behalf of the Taliban and was captured on the battlefield in Afghanistan.…
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