Once again, the legal rights of American citizens have been endangered by the government. I’m talking about S.1867, the Senate’s version of the National Defense Authorization Act (NDAA) for Fiscal Year 2012, which passed earlier this week. The language in question does not appear in the House of Representatives version of the NDAA, which also passed recently. These bills have both passed their respective houses, but they are not law yet because a joint committee of members from both houses must work to resolve the differences before sending the bill to the President, who would either sign the joint bill into law or veto it, at which point Congress gets to decide whether to try to overturn the veto, revise the bill, or just move on.
Let’s have a look at the language in question. We’re looking at sections 1031 and 1032 of S1867. I’ve provided the full text of these sections at the end of the post with the key excerpts sprinkled throughout the post, as well as links to both the House and Senate versions of the NDAA.
In general, this is a progression in the recent blurring of the lines between both a US citizen and non-US citizen and the lines between the regular legal and military legal systems. It’s a very troubling trend that I view as extremely dangerous for individual rights in the USA. Section 1031goes right along for the ride. The criteria and the actions read:
(a) In General- Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
(b) Covered Persons- A covered person under this section is any person as follows:
(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
(c) Disposition Under Law of War- The disposition of a person under the law of war as described in subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.
(2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)).
(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.
(4) Transfer to the custody or control of the person's country of origin, any other foreign country, or any other foreign entity.
The parts in (a) and (b) are reasonable enough, but (c) is the problem because (1) literally allows for indefinite detention without a trial. You might think this is referring only to non-US citizens, but I’m not so convinced. I’m troubled because of the half-hearted protection of American citizens that follows:
(d) Construction- Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.
This language does not explicitly state that the provisions of 1031 are not applicable to US citizens, which is what we really need to ensure the proactive protection of our individual rights (yes, we’d still be able to roll the dice on a challenge of the law on constitutional grounds). All they’re saying is that 1031 isn’t making any change to the government’s current practice.
Here’s the problem. The Supreme Court, in Hamdi v Rumsfeld, upheld the government’s authority to indefinitely detain US citizens as enemy combatants. This was a troubling decision at the time and it has come back to haunt us. The Supreme Court did allow a US citizen to challenge the enemy combatant label, however, so this could have been much worse. I’ve provided a couple links to greater detail on this ruling. It was decided in 2004 in a 6-3 decision (Rehnquist, Kennedy, O’Connor, Souter, Ginsburg, and Breyer versus Stevens, Scalia, and Thomas). With four different justices since then (three from the majority), it’s possible that this language wouldn’t survive in the Supreme Court today or in the future.
Ok, back to the NDAA. One can argue that based on the wording in 1032, US citizens are protected because they do state that custody for disposition under law of war is explicitly stated to be non-applicable to US citizens:
(b) Applicability to United States Citizens and Lawful Resident Aliens-
(1) UNITED STATES CITIZENS- The requirement to detain a person in military custody under this section does not extend to citizens of the United States.
(2) LAWFUL RESIDENT ALIENS- The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.
The problem here is they’re only talking about military custody. This includes the armed services, but does not include law enforcement (local, state, FBI, etc.) or other Executive branch custody like the CIA. Law enforcement isn’t the concern as much as the CIA. I’ve outlined similar misgivings about the general vagueness of the limits of the Executive branch in previously discussions on the War Powers Act.
Here’s the bottom line. The Senate just passed a dangerous erosion of our legal rights that was not in the House’s version of the bill. It’s not law yet, as the language still has to pass the joint committee and avoid a presidential veto.
Links:
House version:
Senate version:
Hamdi v Rumsfeld:
Full Wording of S1867 Sec. 1031 and 1032:
Subtitle D--Detainee Matters
SEC. 1031. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.
(a) In General- Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
(b) Covered Persons- A covered person under this section is any person as follows:
(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
(c) Disposition Under Law of War- The disposition of a person under the law of war as described in subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.
(2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)).
(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.
(4) Transfer to the custody or control of the person's country of origin, any other foreign country, or any other foreign entity.
(d) Construction- Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.
(e) Requirement for Briefings of Congress- The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be `covered persons' for purposes of subsection (b)(2).
SEC. 1032. REQUIREMENT FOR MILITARY CUSTODY.
(a) Custody Pending Disposition Under Law of War-
(1) IN GENERAL- Except as provided in paragraph (4), the Armed Forces of the United States shall hold a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107-40) in military custody pending disposition under the law of war.
(2) COVERED PERSONS- The requirement in paragraph (1) shall apply to any person whose detention is authorized under section 1031 who is determined--
(A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and
(B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.
(3) DISPOSITION UNDER LAW OF WAR- For purposes of this subsection, the disposition of a person under the law of war has the meaning given in section 1031(c), except that no transfer otherwise described in paragraph (4) of that section shall be made unless consistent with the requirements of section 1033.
(4) WAIVER FOR NATIONAL SECURITY- The Secretary of Defense may, in consultation with the Secretary of State and the Director of National Intelligence, waive the requirement of paragraph (1) if the Secretary submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.
(b) Applicability to United States Citizens and Lawful Resident Aliens-
(1) UNITED STATES CITIZENS- The requirement to detain a person in military custody under this section does not extend to citizens of the United States.
(2) LAWFUL RESIDENT ALIENS- The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.
(c) Implementation Procedures-
(1) IN GENERAL- Not later than 60 days after the date of the enactment of this Act, the President shall issue, and submit to Congress, procedures for implementing this section.
(2) ELEMENTS- The procedures for implementing this section shall include, but not be limited to, procedures as follows:
(A) Procedures designating the persons authorized to make determinations under subsection (a)(2) and the process by which such determinations are to be made.
(B) Procedures providing that the requirement for military custody under subsection (a)(1) does not require the interruption of ongoing surveillance or intelligence gathering with regard to persons not already in the custody or control of the United States.
(C) Procedures providing that a determination under subsection (a)(2) is not required to be implemented until after the conclusion of an interrogation session which is ongoing at the time the determination is made and does not require the interruption of any such ongoing session.
(D) Procedures providing that the requirement for military custody under subsection (a)(1) does not apply when intelligence, law enforcement, or other government officials of the United States are granted access to an individual who remains in the custody of a third country.
(E) Procedures providing that a certification of national security interests under subsection (a)(4) may be granted for the purpose of transferring a covered person from a third country if such a transfer is in the interest of the United States and could not otherwise be accomplished.
(d) Effective Date- This section shall take effect on the date that is 60 days after the date of the enactment of this Act, and shall apply with respect to persons described in subsection (a)(2) who are taken into the custody or brought under the control of the United States on or after that effective date.
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UPDATE: 10 Dec. 2011 I just wanted to add a couple points that surfaced in discussions on Facebook.
First, there was an argument that 1031 and 1032 are essentially linked because they talk about the same thing. They don't. Note the differences in the covered persons criteria. It is a much lower threshold to qualify as a covered person under 1031 than 1032 because 1031 calls for substantial support while 1032 calls for some participation in an attack.
Second, note that the protections of US citizens were included in only 1032, not 1031. Because they weren't also included in 1031, we cannot legitimately assume that they apply to 1031. If Congress just adds protections for US citizens into 1031 like they have in 1032, a lot of the criticism goes away. Yes, there is a group who will not be satisfied with that because they believe the 5th Amendment applies not just to US citiizens, but all people.
UPDATE: 10 Dec. 2011 I just wanted to add a couple points that surfaced in discussions on Facebook.
First, there was an argument that 1031 and 1032 are essentially linked because they talk about the same thing. They don't. Note the differences in the covered persons criteria. It is a much lower threshold to qualify as a covered person under 1031 than 1032 because 1031 calls for substantial support while 1032 calls for some participation in an attack.
Second, note that the protections of US citizens were included in only 1032, not 1031. Because they weren't also included in 1031, we cannot legitimately assume that they apply to 1031. If Congress just adds protections for US citizens into 1031 like they have in 1032, a lot of the criticism goes away. Yes, there is a group who will not be satisfied with that because they believe the 5th Amendment applies not just to US citiizens, but all people.
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