Congressional Research Service ˜ The Library of Congress
CRS Report for Congress
Received through the CRS Web
Order Code RS22130
April 28, 2005
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.”
