Words have meaning, but they can also be taken out of context. The provision that Thornberry cites only exempts American citizens from being covered by section 1022 of the new law, which creates a new presumption of military detention for certain terrorist suspects. Notably, section 1022(b)(1) does not exempt American citizens from the more important provisions in section 1021, which allow the military detention of broad categories of terrorist suspects. It does not, therefore, improve on the status quo by extending any new protections to Americans.
Moreover, the specific exemption for American citizens in section 1022 could be understood as suggesting, by negative implication, that American citizens are covered by section 1021. Potentially reinforcing this view is the fact that an effort to amend section 1021 to exempt citizens failed in the Senate. If, in the future, judges decide to refer to the statute’s legislative history to help ascertain its scope, the lack of such an exemption may be determinative.
Another provision that Thornberry cites is equally unhelpful to his claim. Subsection 1021(e) says that section 1021 does not change existing law “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.”
On its face, it should be obvious that this provision does not specifically protect citizens; in fact, the reference to citizens is entirely superfluous. (The provision might just as well have specified “redheads, AARP members, and any other persons who are captured or arrested in the United States.” If it had not been written with future political maneuvering in mind, it would simply have referred to “the detention of persons who are captured or arrested in the United States.”)
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