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@NickMolling great question. The administrations have certainly argued that the 2001 AUMF is an implicit authorization. But, we also need to look at section 1021 of the 2012 NDAA which was intended to clarify the 2001 AUMF. NDAA section 1021 specifically authorizes indefinite detention, and, although it does not explicitly say it applies to persons in the U.S, it essentially says all persons anywhere. No statutory interpretation has concluded that the 2012 NDAA does not apply to all persons in the USA.
So, is the specific authorization for indefinite detention in the 2012 NDAA, although it doesn't specifically say all persons in the USA, sufficient under the Feinstein amendment? We don't know. The Feinstein amendment is unclear as to whether just Indefinite detention needs to be specifically authorized, or also, that the persons subject to the indefinite detention need to be specifically named as well.
Let's suppose the 2012 NDAA is not sufficiently specific under the Feinstein amendment, the president still possesses the authority to conduct military tribunals, and extraordinary rendition, pursuant to the 2012 NDAA, as discussed in the article.
1 year ago on The Feinstein Fumble: Indefinite Detention Remains