In 2004, the Supreme Court affirmed the President‘s power to indefinitely detain members of Al Qaeda and the Taliban. Nearly ten years later, however, the substantive parameters of executive detention remain unclear. Post–9/11 detention law has been largely shaped by the lower federal courts on a case–by–case basis as they evaluate habeas corpus petitions from detainees held at Guantanamo Bay. In 2012, as part of the National Defense Authorization Act (NDAA), Congress attempted, for the first time, to codify a substantive detention standard in section 1021. Instead of providing clarity, however, section 1021 contained ambiguous terms and created more confusion. On January 13, 2012, a group of writers and activists led by Pulitzer Prize winning–journalist Christopher Hedges challenged this detention law in the Southern District of New York. They argued that section 1021 was vague and might allow for detention based on protected First Amendment activities. In Hedges v. Obama, Judge Katherine Forrest held that a key portion of section 1021 was unconstitutional and permanently enjoined it. That injunction has since been stayed, and the case is currently on appeal in the Second Circuit.

This Notes argues that congressional legislation is essential to define and limit the executive’s detention authority but that section 1021 of the NDAA failed to achieve this purpose. The Note provides recommendations for how to create a more meaningful detention statute that imposes clear substantive limits on executive authority. A congressional detention statute with clearly articulated definitions and concepts will not only provide guidance to the President, it will also provide the courts with a coherent standard to use when evaluating the legality of specific detentions.

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