National Defense Authorization Act: Military can detain US citizens?

[Jack21222]

The National Defense Authorization Act was passed in the Senate 93-7. In this bill, language was inserted that may be interpreted to mean the military can hold US citizens indefinitely without trial.

http://www.wired.com/dangerroom/2011/12/senate-military-detention/ Is a Wired editorial on the subject.

Wired links to several law blogs which are debating the issue. Law professor Robert Chesney says: http://www.lawfareblog.com/2011/12/does-the-ndaa-authorize-detention-of-us-citizens/

This obviously rules out the idea of a mandatory military detention for US citizens. But note that it tends to rule in the idea that the baseline grant of detention authority in 1031 does in fact extend to citizens. Otherwise there would be no need for an exclusion for citizens in section 1032, since the 1032 category is a subset of the larger 1031 category.

Bolding mine.

Two questions for you all.

1) Should US citizens accused of terrorism be subject to military detention?

2) Does this bill create the possibility that US citizens be detained by the military?

 

[pergradus]

Where is the Supreme Court when you need them?

http://www.wired.com/dangerroom/2011/12/senate-military-detention/

Is this what America is coming to?

 

[Evo]

Did you actually read the National Defense Authorization Act for Fiscal Year 2012?

Go to page 426

15 Subtitle D—Detainee Matters
16 SEC. 1031. AFFIRMATION OF AUTHORITY OF THE ARMED
17 FORCES OF THE UNITED STATES TO DETAIN
18 COVERED PERSONS PURSUANT TO THE AU19
THORIZATION FOR USE OF MILITARY FORCE.

Sec. 1031.

8 (b) APPLICABILITY TO UNITED STATES CITIZENS
9 AND LAWFUL RESIDENT ALIENS.—
10 (1) UNITED STATES CITIZENS.—The require
11 ment to detain a person in military custody under
12 this section does not extend to citizens of the United
13 States.
14 (2) LAWFUL RESIDENT ALIENS.—The require
ment to detain a person in military custody under
16 this section does not extend to a lawful resident
17 alien of the United States on the basis of conduct
18 taking place within the United States, except to the
19 extent permitted by the Constitution of the United
20 States.

3 (b) COVERED PERSONS.—A covered person under
4 this section is any person as follows:
5 (1) A person who planned, authorized, com6
mitted, or aided the terrorist attacks that occurred
7 on September 11, 2001, or harbored those respon8
sible for those attacks.
9 (2) A person who was a part of or substantially
10 supported al-Qaeda, the Taliban, or associated forces
11 that are engaged in hostilities against the United
12 States or its coalition partners, including any person
13 who has committed a belligerent act or has directly
14 supported such hostilities in aid of such enemy
15 forces.16
(c) DISPOSITION UNDER LAW OF WAR.—The dis
17
position of a person under the law of war as described
18 in subsection (a) may include the following:
19 (1) Detention under the law of war without
20 trial until the end of the hostilities authorized by the
21 Authorization for Use of Military Force.
22 (2) Trial under chapter 47A of title 10, United
23 States Code (as amended by the Military Commis24
sions Act of 2009 (title XVIII of Public Law 111–
25 84)).
428
† S 1867 ES
1 (3) Transfer for trial by an alternative court or
2 competent tribunal having lawful jurisdiction.
3 (4) Transfer to the custody or control of the
4 person’s country of origin, any other foreign coun5
try, or any other foreign entity.

http://www.gpo.gov/fdsys/pkg/BILLS-112s1867es/pdf/BILLS-112s1867es.pdf

 

[Office_Shredder]

I never understand this legalese

(d) CONSTRUCTION.—Nothing in this section is in-
7 tended to limit or expand the authority of the President
8 or the scope of the Authorization for Use of Military
9 Force.
10

Well then what's the purpose of putting it in there if it doesn't actually do anything?

I would also comment that even though it says the requirement that the armed forces hold terrorists does not extend to US citizens, it never says that the armed forces can't just choose to hold them anyway. The way the bill is laid out: The president has the authority to detain people who are terrorists with the military. The military must hold terrorists, except they aren't required to hold American citizens. But does the president still have the authority to hold them? It's never made clear. I probably just don't understand it very well

 

[icosane]

If they're such obvious terrorists why can't they be found guilty in a civilian court before being transferred to military custody?

The Gestapo had the authority to investigate cases of treason, espionage, sabotage and criminal attacks on the Nazi Party and Germany. The basic Gestapo law passed by the government in 1936 gave the Gestapo carte blanche to operate without judicial oversight. The Gestapo was specifically exempted from responsibility to administrative courts, where citizens normally could sue the state to conform to laws.

 

[cantormath]

The ACLU says:
Don’t be confused by anyone claiming that the indefinite detention legislation does not apply to American citizens. It does. There is an exemption for American citizens from the mandatory detention requirement (...section 1032 of the bill), but no exemption for American citizens from the authorization to use the military to indefinitely detain people without charge or trial (section 1031 of the bill). So, the result is that, under the bill, the military has the power to indefinitely imprison American citizens, but it does not have to use its power unless ordered to do so.

http://www.aclu.org/blog/national-s...erican-citizens-battlefield-they-define-being

One of the authors of these provisions:
"1031, the statement of authority to detain, does apply to American citizens and it designates the world as the battlefield, including the homeland.” - Lindsey Graham

In this video, Lindsey Graham says, in no uncertain terms, 1031 of the NDAA applies to citizens...
http://www.c-spanvideo.org/appearance/600840428

 

[Evo]

The ACLU says:
Don’t be confused by anyone claiming that the indefinite detention legislation does not apply to American citizens. It does. There is an exemption for American citizens from the mandatory detention requirement (...section 1032 of the bill), but no exemption for American citizens from the authorization to use the military to indefinitely detain people without charge or trial (section 1031 of the bill). So, the result is that, under the bill, the military has the power to indefinitely imprison American citizens, but it does not have to use its power unless ordered to do so.

http://www.aclu.org/blog/national-s...erican-citizens-battlefield-they-define-being

One of the authors of these provisions:
"1031, the statement of authority to detain, does apply to American citizens and it designates the world as the battlefield, including the homeland.” - Lindsey Graham

In this video, Lindsey Graham says, in no uncertain terms, 1031 of the NDAA applies to citizens...
http://www.c-spanvideo.org/appearance/600840428

It clearly says

15 Subtitle D—Detainee Matters
16 SEC. 1031. AFFIRMATION OF AUTHORITY OF THE ARMED
17 FORCES OF THE UNITED STATES TO DETAIN
18 COVERED PERSONS PURSUANT TO THE AU19
THORIZATION FOR USE OF MILITARY FORCE.

COVERED PERSONS.—A covered person under
4 this section is any person as follows:
5 (1) A person who planned, authorized, com6
mitted, or aided the terrorist attacks that occurred
7 on September 11, 2001, or harbored those respon8
sible for those attacks.
9 (2) A person who was a part of or substantially
10 supported al-Qaeda, the Taliban, or associated forces
11 that are engaged in hostilities against the United
12 States or its coalition partners, including any person
13 who has committed a belligerent act or has directly
14 supported such hostilities in aid of such enemy
15 forces.16

It's quite clear to whom it applies. It doesn't apply to normal citizens. Terrorists aren't considered normal citizens. Is anyone on this forum really concerned that they will be arrested as a terrorist? I know I'm not paranoid.

 

[Office_Shredder]

Evo, where in the covered persons section does it say that American citizens are not covered?

 

[Evo]

Evo, where in the covered persons section does it say that American citizens are not covered?

Did you read the link I gave.

(1) IN GENERAL.—Except as provided in para25
graph (4), the Armed Forces of the United States
429
† S 1867 ES
1 shall hold a person described in paragraph (2) who
2 is captured in the course of hostilities authorized by
3 the Authorization for Use of Military Force (Public
4 Law 107–40) in military custody pending disposition
5 under the law of war.
6 (2) COVERED PERSONS.—The requirement in
7 paragraph (1) shall apply to any person whose de8
tention is authorized under section 1031 who is de9
termined—
10 (A) to be a member of, or part of, al-
11 Qaeda or an associated force that acts in co12
ordination with or pursuant to the direction of
13 al-Qaeda; and
14 (B) to have participated in the course of
15 planning or carrying out an attack or attempted
16 attack against the United States or its coalition
17 partners.
18 (3) DISPOSITION UNDER LAW OF WAR.—For
19 purposes of this subsection, the disposition of a per20
son under the law of war has the meaning given in
21 section 1031(c), except that no transfer otherwise
22 described in paragraph (4) of that section shall be
23 made unless consistent with the requirements of sec24
tion 1033.
430
† S 1867 ES
1 (4) WAIVER FOR NATIONAL SECURITY.—The
2 Secretary of Defense may, in consultation with the
3 Secretary of State and the Director of National In4
telligence, waive the requirement of paragraph (1) if
5 the Secretary submits to Congress a certification in
6 writing that such a waiver is in the national security
7 interests of the United States.
8 (b) APPLICABILITY TO UNITED STATES CITIZENS
9 AND LAWFUL RESIDENT ALIENS.—
10 (1) UNITED STATES CITIZENS.—The require11
ment to detain a person in military custody under
12 this section does not extend to citizens of the United
13 States.14 (2) LAWFUL RESIDENT ALIENS.—The require15
ment to detain a person in military custody under
16 this section does not extend to a lawful resident
17 alien of the United States on the basis of conduct
18 taking place within the United States, except to the
19 extent permitted by the Constitution of the United
20 States.

That's the exemption for US Citizens against being detained in military custody.

Are you seeing anywhere that says specifically that US citizens will be detained in military custody? If so, please copy and paste it, I must be missing it.

 

[Office_Shredder]

The exemption says the military is not REQUIRED to hold American citizens. Where does it say that they aren't ALLOWED to?

 

[Evo]

The exemption says the military is not REQUIRED to hold American citizens. Where does it say that they aren't ALLOWED to?

Where does it say they're allowed to?

 

[Office_Shredder]

Subsection (a) - the president may authorize the military to detain any person that is described as a covered person in subsection (b)

Subsection (b) describes people who take certain actions. Unless there is something preventing American citizens from taking those actions, it is patently clear that American citizens can fall under the description in subsection (b)

 

[Evo]

Subsection (a) - the president may authorize the military to detain any person that is described as a covered person in subsection (b)

Right COVERED PERSON

6 (2) COVERED PERSONS.—The requirement in
7 paragraph (1) shall apply to any person whose de8
tention is authorized under section 1031 who is de9
termined—
10 (A) to be a member of, or part of, al-
11 Qaeda or an associated force that acts in co12
ordination with or pursuant to the direction of
13 al-Qaeda; and
14 (B) to have participated in the course of
15 planning or carrying out an attack or attempted
16 attack against the United States or its coalition
17 partners.

Subsection (b) describes people who take certain actions. Unless there is something preventing American citizens from taking those actions, it is patently clear that American citizens can fall under the description in subsection (b)

Where are you getting this nonsense? That's not in the Act. You'd have to be a terrorist to fall into the category of Covered Persons. This is nothing but fear mongering and conspiracy theory, IMO.

"people that take certain actions" seriously? That is seriously misleading. Some fear mongerer making it sound like it's nothing more than taking a walk in the park. Oh, but wait, if they tell the truth and say what it really says, people will dismiss them as being daft, IMO.

 

[Office_Shredder]

No, I'm not stating that they are trivial actions, or that anybody can get arrested under this. But if an American citizen is suspected of being a member of Al Qaeda, they can, it seems, be detained by the military until the end of hostilities (whenever that is), or transfer to another country's custody!

 

[Evo]

No, I'm not stating that they are trivial actions, or that anybody can get arrested under this. But if an American citizen is suspected of being a member of Al Qaeda, they can, it seems, be detained by the military until the end of hostilities (whenever that is), or transfer to another country's custody!

I would hope so. A US Citizen engaging in such conduct would be guilty of treason.

 

[Office_Shredder]

Somehow, we've spent over 200 years without the President having the authority to ship suspected traitors to foreign countries with no trials. What makes these cases so special?

 

[Evo]

Somehow, we've spent over 200 years without the President having the authority to ship suspected traitors to foreign countries with no trials. What makes these cases so special?

Here

(4) Transfer to the custody or control of the
person’s country of origin, any other foreign coun5
try, or any other foreign entity.

except that no transfer otherwise
described in paragraph (4) of that section shall be
made unless consistent with the requirements of sec
tion 1033.

Sec. 1033. Requirements for certifications relating to the transfer of detainees at United States Naval Station, Guantanamo Bay, Cuba, to
foreign countries and other foreign entities.

SEC. 1033. REQUIREMENTS FOR CERTIFICATIONS RELAT17
ING TO THE TRANSFER OF DETAINEES AT
18 UNITED STATES NAVAL STATION, GUANTA19
NAMO BAY, CUBA, TO FOREIGN COUNTRIES
20 AND OTHER FOREIGN ENTITIES.
21 (a) CERTIFICATION REQUIRED PRIOR TO TRANS22
FER.—
23 (1) IN GENERAL.—Except as provided in para24
graph (2) and subsection (d), the Secretary of De25
fense may not use any amounts authorized to be ap433
† S 1867 ES
1 propriated or otherwise available to the Department
2 of Defense for fiscal year 2012 to transfer any indi3
vidual detained at Guantanamo to the custody or
4 control of the individual’s country of origin, any
5 other foreign country, or any other foreign entity
6 unless the Secretary submits to Congress the certifi7
cation described in subsection (b) not later than 30
8 days before the transfer of the individual.
(2) EXCEPTION.—Paragraph (1) shall not
10 apply to any action taken by the Secretary to trans11
fer any individual detained at Guantanamo to effec12
tuate—
13 (A) an order affecting the disposition of
14 the individual that is issued by a court or com15
petent tribunal of the United States having law16
ful jurisdiction (which the Secretary shall notify
17 Congress of promptly after issuance); or
18 (B) a pre-trial agreement entered in a mili19
tary commission case prior to the date of the
20 enactment of this Act.
21 (b) CERTIFICATION.—A certification described in this
22 subsection is a written certification made by the Secretary
23 of Defense, with the concurrence of the Secretary of State
24 and in consultation with the Director of National Intel25
ligence, that the government of the foreign country or the
434
† S 1867 ES
1 recognized leadership of the foreign entity to which the
2 individual detained at Guantanamo is to be transferred—
3 (1) is not a designated state sponsor of ter4
rorism or a designated foreign terrorist organization;
5 (2) maintains control over each detention facil6
ity in which the individual is to be detained if the
7 individual is to be housed in a detention facility;
8 (3) is not, as of the date of the certification,
9 facing a threat that is likely to substantially affect
10 its ability to exercise control over the individual;
11 (4) has taken or agreed to take effective actions
12 to ensure that the individual cannot take action to
13 threaten the United States, its citizens, or its allies
14 in the future;
15 (5) has taken or agreed to take such actions as
16 the Secretary of Defense determines are necessary to
17 ensure that the individual cannot engage or re18
engage in any terrorist activity; and
19 (6) has agreed to share with the United States
20 any information that—
21 (A) is related to the individual or any asso22
ciates of the individual; and
23 (B) could affect the security of the United
24 States, its citizens, or its allies.

 

[Drakkith]

FYI: Page 438

(2) The term ‘‘individual detained at Guanta-
16 namo’’ means any individual located at United
17 States Naval Station, Guantanamo Bay, Cuba, as of
18 October 1, 2009, who—
19 (A) is not a citizen of the United States or
20 a member of the Armed Forces of the United
21 States; and

Doesn't look like a US citizen can be shipped anywhere.

 

[TheStatutoryApe]

I would hope so. A US Citizen engaging in such conduct would be guilty of treason.

So people who are suspected of treason don't get a proper trial any more?

 

[Drakkith]

So people who are suspected of treason don't get a proper trial any more?

Note the following:

6 (2) COVERED PERSONS.—The requirement in
7 paragraph (1) shall apply to any person whose de8
tention is authorized under section 1031 who is de9
termined—
10 (A) to be a member of, or part of, al-
11 Qaeda or an associated force that acts in co12
ordination with or pursuant to the direction of
13 al-Qaeda; and
14 (B) to have participated in the course of
15 planning or carrying out an attack or attempted
16 attack against the United States or its coalition
17 partners.

It does not say SUSPECTED to be part of, it says DETERMINED. How would one determine someone is part of Al-Queda and etc except via trial?

 

[Evo]

So people who are suspected of treason don't get a proper trial any more?

Apparently under "those very specific" conditions, no. I don't agree with the lack of trial, but I can understand why a trial could be very damaging to National Security due to the information that could become public. In other words, if you want to join the taliban, be aware of the consequences.

 

[mheslep]

I applaud at least the part of this law that calls out Al Qaeda and the Taliban. I never liked the ambiguity and the lack of direction in the phrase "The War On Terror", as for among other reasons a war against a vague concept can likely never be won. The references in this law help remedy the flaw.

 

[mheslep]

There were 7 nay votes in the Senate, 3 R and 3 D.
Coburn [R, OK]
Harkin [D, IA]
Paul [R, Ky]
Sanders [I, VT]
Wyden [D, OR]
Merkley [D, OR]
Lee [R, UT]

Paul seemed to lead the descent. He has some cogent objections here, much of which I agree with.
http://infowebstorm.com/2011/11/29/senator-rand-paul-in-response-to-s-1867-national-defense-authorization-act-bill-tuesday-nov-29-2011/

 

[SixNein]

Apparently under "those very specific" conditions, no. I don't agree with the lack of trial, but I can understand why a trial could be very damaging to National Security due to the information that could become public. In other words, if you want to join the taliban, be aware of the consequences.

What you really mean to say is: If the government accuses you of wanting to join the taliban, you should be aware of the consequences.

There is quite an issue with justice here.

 

[TheStatutoryApe]

Note the following:



It does not say SUSPECTED to be part of, it says DETERMINED. How would one determine someone is part of Al-Queda and etc except via trial?

The terms typically associated with something have been "determined" via trial are usually "convicted" or "found guilty" ect. "Determined" is vague and does not have any specific legal meaning that I am aware of. Someone may have been "determined" to have connections with al-Qaeda and/or some plot via intelligence reports.

 

[Drakkith]

The terms typically associated with something have been "determined" via trial are usually "convicted" or "found guilty" ect. "Determined" is vague and does not have any specific legal meaning that I am aware of. Someone may have been "determined" to have connections with al-Qaeda and/or some plot via intelligence reports.

I can see that.

 

[Ryan_m_b]

Personally I don't like this, the military being able to detain people for long periods without trial sounds like a serious breach of human rights. It reminds of of the various inmates of Guantanamo who were kept for years without trial with no way to appeal before being released without charge back to their countries to pick up the pieces of their lives.

 

[Drakkith]

Personally I don't like this, the military being able to detain people for long periods without trial sounds like a serious breach of human rights. It reminds of of the various inmates of Guantanamo who were kept for years without trial with no way to appeal before being released without charge back to their countries to pick up the pieces of their lives.

Sounds like normal POW's to me. What else would you do with them in a time of war?

 

[Jack21222]

Sounds like normal POW's to me. What else would you do with them in a time of war?

Well, you certainly don't torture them, like we have been. You also don't just round up random reporters, like Sami al-Hajj, and lock them up for 7 years without trial.

Though, I suppose that's better than just assassinating American citizens abroad for posting anti-US youtube videos.

 

[Ryan_m_b]

Sounds like normal POW's to me. What else would you do with them in a time of war?

I'm not talking about combatants of another nations army (and btw if they were POWs a detention camp riddled with so many abuses is a huge violation), I'm talking about anyone that the military can deem to be a potential terrorist who is denied habeas corpus.

 

[turbo]

The law is a problem in that is complex and subject to interpretation. We can take the Pollyanna view that the government will always be kind and benevolent to citizens. That is comforting and happy. Realists will take another view - the law will open up US citizens to more restrictions of their human rights. Arbitrary open-ended detention is not a feature of any government that I would support.

 

[Drakkith]

Well, you certainly don't torture them, like we have been. You also don't just round up random reporters, like Sami al-Hajj, and lock them up for 7 years without trial.

Though, I suppose that's better than just assassinating American citizens abroad for posting anti-US youtube videos.

Nonsense. The guy was there with the terrorists. He was not assassinated for simply posting anti-us videos.

I'm not talking about combatants of another nations army (and btw if they were POWs a detention camp riddled with so many abuses is a huge violation), I'm talking about anyone that the military can deem to be a potential terrorist who is denied habeas corpus.

And I was talking about the people who were in Guantanamo previously, not possible future issues.

The law is a problem in that is complex and subject to interpretation. We can take the Pollyanna view that the government will always be kind and benevolent to citizens. That is comforting and happy. Realists will take another view - the law will open up US citizens to more restrictions of their human rights.

It *might*. I would be willing to bet that there are other laws which already make it illegal to detain US citizens in this fashion.

 

[Ryan_m_b]

And I was talking about the people who were in Guantanamo previously, not possible future issues.

I'm not sure I follow, I was alluding to the fact that prisoners in Guantanamo bay were not afforded protection under the Geneva convention and did not have the right to habeas corpus. In effect there is nothing to stop the military picking up anyone, calling them a terrorist and throwing them in a detention camp to be intimidated and possibly tortured. It's because of examples like this that I do not support legislation that allows the military to detain people for any time period with no trial.

 

[daveb]

Sounds like normal POW's to me. What else would you do with them in a time of war?

The problem with that is that in the "War on Terror" there is no specific way to delineate when the war is over, sort of like the "War on Drugs" or the "War on Poverty". This means they can be held indefinitely.

 

[russ_watters]

It does not say SUSPECTED to be part of, it says DETERMINED. How would one determine someone is part of Al-Queda and etc except via trial?

Well, being found in an Afghani cave with an ak47 would be another way.

I see no reason why someone who literally steps outside the legal system should be afforded protection by it.