News National Defense Authorization Act: Military can detain US citizens?

[russ_watters]

It exempts the military from detaining US citizens if the military doesn't want to, it grants no protection to US citizens from being detained.

Which laws are there which contradict this, and how long will it take to get through the court system before the detainee is finally released?

You're arguing conspiracy theory by reverse psychology here. The Bill of Rights is stll valid - it does not require a framework of laws to cover all situations where it should apply!

 

[Hurkyl]

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

It exempts the military from detaining US citizens if the military doesn't want to, it grants no protection to US citizens from being detained.

I suspect you have a fundamental misunderstanding about how the law works. The federal government isn't legally allowed to do anything at all, unless there is some law specifically enabling that activity, or can be construed to do so in a fashion that will hold up in court.

 

[daveb]

When operating in the US, he was under the jurisdiction of and was investigated by the FBI. When he left to go to Yemen, he put himself under the "jurisdiction" of the department of defense and the department of defense handled him as is their way.

While I may not agree with the morality of this application (that he is fully under the jurisdiction of the military outside the US, and thus their legal system), I do understand it. I think my (and some others') concern is that this would be applied to persons living inside the US.

 

[daveb]

I suspect you have a fundamental misunderstanding about how the law works. The federal government isn't legally allowed to do anything at all, unless there is some law specifically enabling that activity, or can be construed to do so in a fashion that will hold up in court.

It may be that way in principle, but the reality is that the government does engage in activities that it is not legally allowed to do, but also not disallowed, and thus the only recourse is to settle it in the courts.

 

[Hurkyl]

It may be that way in principle, but the reality is that the government does engage in activities that it is not legally allowed to do, but also not disallowed, and thus the only recourse is to settle it in the courts.

In this context, I don't believe there is any difference between "not legally allowed" and "disallowed". And even if there was a difference, it's irrelevant because your recourse is the same either way.

 

[Office_Shredder]

I suspect you have a fundamental misunderstanding about how the law works. The federal government isn't legally allowed to do anything at all, unless there is some law specifically enabling that activity, or can be construed to do so in a fashion that will hold up in court.

This bill specifically permits the president to authorize the military to hold ANYONE determined to be a terrorist indefinitely. So the bill provides the authority to detain US citizens indefinitely. The bill only later exempts the military from being REQUIRED to hold each and every US citizen in military detention. The bill as written very explicitly grants the authority to detain US citizens at the start, and nowhere clarifies that US citizens are not intended to be covered persons.

Just to make it a little clearer, a number of amendments to limit the amount to which American citizens fall under the purview of this section were proposed, including
http://www.govtrack.us/congress/amendment.xpd?session=112&amdt=s1126

Unfortunately I can't find the text of this amendment to see exactly what it says, but I'm guessing it does what the title states. The fact that it was voted down means a majority of the senators clearly intend for the military to have the right to hold US citizens indefinitely

 

[Evo]

This bill specifically permits the president to authorize the military to hold ANYONE determined to be a terrorist indefinitely. So the bill provides the authority to detain US citizens indefinitely. The bill only later exempts the military from being REQUIRED to hold each and every US citizen in military detention. The bill as written very explicitly grants the authority to detain US citizens at the start, and nowhere clarifies that US citizens are not intended to be covered persons.

The ACT is very clear on what a covered person is. To try to make it sound like it could apply to the average American is fear mongering and conspiracy theory.

Please explain how & why you see the Average American as being considered a "covered person", since you seem to believe this is the case.

 

[Office_Shredder]

The ACT is very clear on what a covered person is. To try to make it sound like it could apply to the average American is fear mongering and conspiracy theory.

Please explain how & why you see the Average American as being considered a "covered person", since you seem to believe this is the case.

The bill hands over the authority to decide who is and isn't a terrorist to the military. I never claim that this is going to affect me, I'm sure it won't. But the determination of guilt or innocence in criminal cases is something that should be left to the judicial system, especially if it pertains to a US citizen on US soil. There are strict barriers to using the military as a domestic police force for a reason, and it doesn't make sense to me that we should start tearing those down, even if it's just a little bit.

Frankly, if your best argument is 'you should only worry about it if you're a terrorist', I'm not interested in hearing it

You're arguing conspiracy theory by reverse psychology here. The Bill of Rights is stll valid - it does not require a framework of laws to cover all situations where it should apply!

I agree, but we shouldn't just sit back and let Congress pass laws that we think are unconstitutional without a peep because eventually a court will strike it as unconstitutional

 

[Oltz]

We have an administration that has displayed a willingness to cut corners and bend rules. Constantly doing things through agencies that typically would require congressional involvement. With that in mind should anyone be comfortable with giving the administration the ability to have anyone detained indeffinatly without trial who is determined to be a terrorist.

How hard would it be for the administration controlled DHS to determin that say Hermain Cain is a terrorist? Or how bout just grabbing the GOP nominee 3 days before the election?

Obviously that will not happen but the pure potnetial existing is to close for me. Citizens have due process period no matter the charge or location.

 

[Office_Shredder]

How hard would it be for the administration controlled DHS to determin that say Hermain Cain is a terrorist? Or how bout just grabbing the GOP nominee 3 days before the election?

Extreme cases like this aren't fair criticism, because if you can get everyone to cooperate with kidnapping the GOP nominee 3 days before the election under the new law, you could get them to do it under existing law as well. Essentially at that point the government has gone rogue and it doesn't matter what the law says.

The scenario I'm envisioning as most likely is a charity is suspected of laundering funds for Al Qaeda, and the head of the charity is held indefinitely by the military. Or someone travels to Pakistan and the military determines that it was because they were meeting with terrorists It's easy to see in such a case how the outcome could change drastically depending on whether the military has final say in guilt or if it has to go through the judicial system

 

[Drakkith]

The bill hands over the authority to decide who is and isn't a terrorist to the military.

Of course it does. Just like the law allows the military to define legal combatants in a war zone. Are you afraid of being targeted as one of those? Of course not!

But the determination of guilt or innocence in criminal cases is something that should be left to the judicial system, especially if it pertains to a US citizen on US soil. There are strict barriers to using the military as a domestic police force for a reason, and it doesn't make sense to me that we should start tearing those down, even if it's just a little bit.

First of all, this in no way is "tearing down" any barriers or laws. This actually puts limits on a previous piece of legislature, Publick Law 107-40, that was passed in 2002. http://en.wikipedia.org/wiki/Authorization_for_Use_of_Military_Force_Against_Terrorists

Second, this isn't a criminal case like you would have in normal court. This is 100% a military related case unless they want to allow the civil courts to handle the case.

We have an administration that has displayed a willingness to cut corners and bend rules. Constantly doing things through agencies that typically would require congressional involvement. With that in mind should anyone be comfortable with giving the administration the ability to have anyone detained indeffinatly without trial who is determined to be a terrorist.

They already have this ability through previous laws. This specifically limits what they can and cannot do.

How hard would it be for the administration controlled DHS to determin that say Hermain Cain is a terrorist? Or how bout just grabbing the GOP nominee 3 days before the election?

This is pure nonsense. There needs to be a reason to detain someone. The military does not go around aresting anyone that "the administration" doesn't like. Like Evo said, its pure conspiracy theory.

Obviously that will not happen but the pure potnetial existing is to close for me. Citizens have due process period no matter the charge or location.

No, they don't. A clear example is the strike that killed Anwar al-Awlaki. Terrorism in support of a foreign power is an act of war and will be responded to appropriately. If I fight in a foreign army against my country it is foolish to try to "apprehend" me and others like me and risk further lives.

 

[Drakkith]

While I may not agree with the morality of this application (that he is fully under the jurisdiction of the military outside the US, and thus their legal system), I do understand it. I think my (and some others') concern is that this would be applied to persons living inside the US.

The military isn't allowed to operate inside US territory against US citizens.

 

[Jack21222]

You know, not all of this has to be in hypotheticals.

There was a US citizen who was arrested in the United States, and thrown in a military prison for over 3 years without a trial and without criminal charges.
[/PLAIN]
http://en.wikipedia.org/wiki/Jos%C3%A9_Padilla_%28prisoner%29[/URL]

 

[Drakkith]

the language is muddy enough that it is clear that the intent is to make the intent unclear.

is it not true that jurists would use the statements of congressmen like Graham to determine what the intent of the law was?

I have no idea how you're getting this idea. The intent of the law is obvious. It 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. It says so right in the law.

In addition, it also states that it does NOT give the military the right to do anything that goes against another law relating to detaining US citizens:

(e) AUTHORITIES.—Nothing in this section shall be
11 construed to affect existing law or authorities, relating to
12 the detention of United States citizens, lawful resident
13 aliens of the United States or any other persons who are
14 captured or arrested in the United States.

 

[TheStatutoryApe]

I have no idea how you're getting this idea. The intent of the law is obvious. It 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. It says so right in the law.

In addition, it also states that it does NOT give the military the right to do anything that goes against another law relating to detaining US citizens:

Note the post above yours. The author of the bill specifically sites that case in noting that the bill can and does pertain to US citizens while in the United States. The bill says that it changes nothing because the bill's author believes that the above noted case says it is legal already to detain US citizens in the United States indefinitely.

 

[Drakkith]

Note the post above yours. The author of the bill specifically sites that case in noting that the bill can and does pertain to US citizens while in the United States. The bill says that it changes nothing because the bill's author believes that the above noted case says it is legal already to detain US citizens in the United States indefinitely.

That's what I'm seeing here.

 

[Jack21222]

Note the post above yours. The author of the bill specifically sites that case in noting that the bill can and does pertain to US citizens while in the United States. The bill says that it changes nothing because the bill's author believes that the above noted case says it is legal already to detain US citizens in the United States indefinitely.

I don't know about you, but that's scary to me.

 

[AlephZero]

I don't know about you, but that's scary to me.

I would say there is more than one issue, if you are looking for things to get scared about:

1. Whether it happens.
2. Whether anybody finds out that it happens.
3. Whether it's legal.

In real life, I don't expect there is much correlation between 1 and 3, providing the "powers that be" get the right answer to 2.

 

[icosane]

http://politics.salon.com/2011/12/01/congress_endorsing_military_detention_a_new_aumf/singleton/

Here is an excellent article on the bill by Glenn Greenwald.

Any doubt about whether this bill permits the military detention of U.S. citizens was dispelled entirely today when an amendment offered by Dianne Feinstein — to confine military detention to those apprehended “abroad,” i.e., off U.S. soil — failed by a vote of 45-55. Only three Republicans voted in favor of Feinstein’s amendment (Paul, Kirk and Lee), while 10 Senate Democrats voted against it (Levin, Stabenow, Casey, Pryor, Ben Nelson, Manchin, McCaskill, Begich and Lieberman). Remember: the GOP — all of whom except 3 voted today to empower the President to militarily detain citizens without charges — distrusts federal power and are strong believes in restrained government. Meanwhile, even The American Spectator has a more developed appreciation of due process than these Senate Democrats and the White House.

There are several very revealing aspects to all of this. First, the 9/11 attack happened more than a decade ago; Osama bin Laden is dead; the U.S. Government claims it has killed virtually all of Al Qaeda’s leadership and the group is “operationally ineffective” in the Afghan-Pakistan region; and many commentators insisted that these developments would mean that the War on Terror would finally begin to recede. And yet here we have the Congress, on a fully bipartisan basis, acting not only to re-affirm the war but to expand it even further: by formally declaring that the entire world (including the U.S.) is a battlefield and the war will essentially go on forever.

 

[russ_watters]

You know, not all of this has to be in hypotheticals.

There was a US citizen who was arrested in the United States, and thrown in a military prison for over 3 years without a trial and without criminal charges.
[/PLAIN]
http://en.wikipedia.org/wiki/Jos%C3%A9_Padilla_%28prisoner%29[/URL][/QUOTE] So it happened once in a prominent case, the government lost a court case about the procedure it used, but the government ended up being right that he was a terrorist and he was convicted in civilian court.

So does knowing all of this make you feel more or less safe from rogue government action?

 

[TheStatutoryApe]

So it happened once in a prominent case, the government lost a court case about the procedure it used, but the government ended up being right that he was a terrorist and he was convicted in civilian court.

So does knowing all of this make you feel more or less safe from rogue government action?

Lost? The Fourth Circuit upheld the legality of Padilla's detention. What case was lost?

 

[russ_watters]

Yeah, it's more complicated than I originally grasped:

-In the first round of his writ of habeas corpus case, the government lost the case in the 2nd Circuit Court, but the case was thrown out on appeal on technical grounds (jurisdiction) by the USSC, without ruling on the writ itself: The government apparently never argued that the incarceration was legal in this round, only that Padilla was in the wrong court system.
-In the second round, the case was re-filed in South Carolina, where the government lost again in SC District Court, then won on the underlying issue on appeal to the 4th Circuit Court.
-Before the case could proceed further, the govt charged Padilla in civilian court and attempted to transfer Padilla to civilian jail, rendering all previous court action moot.
-The 4th Circuit Court denied transfer authorization, suggesting the Bush admin was trying to avoid having the issue decided by the USSC.
-The USSC granted the transfer to the civilian court system, thereby finally rendering all of the above moot.

Yes, the government won on the issue once in three tries - and more importantly, won the last time - but it appears to me that the Bush amin knew they were at risk of losing the final judgement in the USSC and essentially defused the bomb by blowing it up. Ironically in such cases where there is gamesmanship on both sides, Padilla's side doesn't seem to have wanted the government to voluntarily give Padilla what they wanted: they wanted the case to go to the USSC for a judgement so the government would be forced to give them what they wanted. In the end, whether due to the legal pressure or not, the government reversed its course on indefinite detention of Padilla. For all practical purposes, they lost.

Regardless of all that, my point is this:
1. Padilla is a convicted terrorist, so ultimately there was no real miscarriage of justice. A bad man getting what he deserved is justice served.
2. The government was guilty (imo, but not officially) of a procedural miscarriage of justice in that Bush did not have the authority to order a citizen held indefinitely in military prison.

So knowing these two things above, I, as a non-terrorist, do not fear the government picking-me up and shipping me off to 'Gitmo, never to be heard from again. It appears to me that others here have this fear and so I want to know what about this case gives them that fear. Just saying that the government did it to Padilla so they might do it to me is illogical unless you are a terrorist like Padilla. In addition, this action is not like a gestapo: the Gestapo never had to defend (and ultimately, as a matter of practical reality, lose!) its actions in court.

 

[icosane]

So knowing these two things above, I, as a non-terrorist, do not fear the government picking-me up and shipping me off to 'Gitmo, never to be heard from again. It appears to me that others here have this fear and so I want to know what about this case gives them that fear. Just saying that the government did it to Padilla so they might do it to me is illogical unless you are a terrorist like Padilla.

My concern isn't so much about my own safety as it is about the potential indefinite detention of innocent citizens being accused of supporting terrorism without due process. If the government has enough evidence to haul suspected terrorists off to 'Gitmo then they should be able to prove it in court.

 

[MarcoD]

So knowing these two things above, I, as a non-terrorist, do not fear the government picking-me up and shipping me off to 'Gitmo, never to be heard from again. It appears to me that others here have this fear and so I want to know what about this case gives them that fear. Just saying that the government did it to Padilla so they might do it to me is illogical unless you are a terrorist like Padilla. In addition, this action is not like a gestapo: the Gestapo never had to defend (and ultimately, as a matter of practical reality, lose!) its actions in court.

The "If you didn't do anything, you don't have anything to fear" argument. That's about the most popular argument used by the KGB under Stalin ever.

(I mean, I don't have any particular opinion on this subject since it is US-local, but I wouldn't use that argument.)

 

[Jack21222]

Regardless of all that, my point is this:
1. Padilla is a convicted terrorist, so ultimately there was no real miscarriage of justice. A bad man getting what he deserved is justice served.
2. The government was guilty (imo, but not officially) of a procedural miscarriage of justice in that Bush did not have the authority to order a citizen held indefinitely in military prison.

Padilla wasn't a convicted terrorist when the government locked him away for 3 years without trial, in the same way that you and I aren't convicted terrorists now. To me, that is a real miscarriage of justice. The trouble is, there's nothing to stop the government from arresting you or I as a suspected terrorist and holding you indefinitely in military prison.

To some people, the NDAA seems to reaffirm this stance of the government. After the Padilla case, I think it was assumed that the government was going to lose an appeal, and the government seemed to back away from the stance that they can hold US citizens indefinitely without charges. I think the fear is the government is reversing course, and reaffirming the stance that they can hold people like that.

To me, this is an analogous situation to police raiding a house without a warrant, finding drugs, and trying to use the drugs as evidence. Without a warrant, the evidence is useless, and the police actions were unjust, despite the fact that the victim was a criminal. Same thing here: It doesn't matter that Padilla was actually a terrorist (or a wannabe terrorist, from what I understand), he shouldn't have been held in military prison without charges; it's unjust.

 

[TheStatutoryApe]

Regardless of all that, my point is this:
1. Padilla is a convicted terrorist, so ultimately there was no real miscarriage of justice. A bad man getting what he deserved is justice served.
2. The government was guilty (imo, but not officially) of a procedural miscarriage of justice in that Bush did not have the authority to order a citizen held indefinitely in military prison.

So knowing these two things above, I, as a non-terrorist, do not fear the government picking-me up and shipping me off to 'Gitmo, never to be heard from again. It appears to me that others here have this fear and so I want to know what about this case gives them that fear. Just saying that the government did it to Padilla so they might do it to me is illogical unless you are a terrorist like Padilla. In addition, this action is not like a gestapo: the Gestapo never had to defend (and ultimately, as a matter of practical reality, lose!) its actions in court.

Just because something happens to a person who is guilty does not make it any less a failure of justice. The justice system is there to protect everyone, including the guilty, from abuse. Being detained without charge for years is abuse.
At its most basic our ability as humans to seek fair treatment for others is based on our ability to consider how we would feel if that unfair treatment were to befall us ourselves. In the end it has nothing to do with how likely we are to actually be treated that way. Pointing out that it is not likely to happen to you or me is the appeal of one indifferent to the abuse of others.

 

[mheslep]

For an enemy combatant in time or war to be detained without charge is not abuse. Civil war prisoners were not brought to trial. WWII prisoners held in the US were not brought to trial. If the state of war is the problem then work to have it revoked, not pretend it does not exist.

 

[russ_watters]

My concern isn't so much about my own safety as it is about the potential indefinite detention of innocent citizens being accused of supporting terrorism without due process. If the government has enough evidence to haul suspected terrorists off to 'Gitmo then they should be able to prove it in court.

Unfortunately, our judicial system takes a long time to go from accusation to arrest in a lot of cases. In PA, we had a prominent child rapist arrested recently after a two-year investigation, during which time he still had access to children to rape through a charity he ran.

 

[russ_watters]

The "If you didn't do anything, you don't have anything to fear" argument. That's about the most popular argument used by the KGB under Stalin ever.

(I mean, I don't have any particular opinion on this subject since it is US-local, but I wouldn't use that argument.)

Don't put into quotes something that isn't actually a quote. In addition, just because one princple applies to two different situations, that doesn't automatically make them identical. I wear white socks and Stalin wore white socks, but that doesn't make us identical.

We know for certain that Stalinist Russia had a bad track record and we have no evidence that the US has a similar track record. That makes them decidedly not the same.

Heck, I don't even believe that you believe they are equivalent. Let's test that: Assuming persecution is your #1 concern and you had a choice of going to Stalinist Russia or the US, which would you choose? If they're equivalent, should we just flip a coin?

 

[Jack21222]

For an enemy combatant in time or war to be detained without charge is not abuse. Civil war prisoners were not brought to trial. WWII prisoners held in the US were not brought to trial. If the state of war is the problem then work to have it revoked, not pretend it does not exist.

Is it possible for a US citizen on US soil to be an "enemy combatant?"

 

[MarcoD]

Don't put into quotes something that isn't actually a quote. In addition, just because one princple applies to two different situations, that doesn't automatically make them identical. I wear white socks and Stalin wore white socks, but that doesn't make us identical.

We know for certain that Stalinist Russia had a bad track record and we have no evidence that the US has a similar track record. That makes them decidedly not the same.

Ah, I put it into quotes because I later added a line to explain my position as a non-US citizen.

I agree with the white/black socks comparison, but I still do feel it's a very flawed argument. I understand that after 9/11 the US has gone on a very nationalistic course, but that doesn't change that you might end up with concepts you'll ultimately regret. You need to weigh the pros and cons on what you think will ultimately end up best for the US, yourself, and possibly the rest of the world, and personally I believe you need to fear your government sometimes and have a system which ensures your own well-being. So I don't buy into the 'I have nothing to fear' argument.

And, as a side note. Most of the terrorist threats are by nomads who live on the far side of the other end of the globe. What are they going to do? Ride their horses across two continents and an ocean? Bin Laden was a joke, he owned some guns and was threatening a continent with nukes; I found him ridiculous and am appalled that probably he now installed a divide everybody was trying to avoid. Very strong border control and visa restrictions already solves 99.9% of the problem, and those are probably already in place.

 

[Evo]

Is it possible for a US citizen on US soil to be an "enemy combatant?"

This has been posted repeatedly, the ACT only applies to "covered persons" and it's quite specific.

 

[Jack21222]

This has been posted repeatedly, the ACT only applies to "covered persons" and it's quite specific.

And as I have posted, Jose Padilla was a US citizen arrested on US soil and held by the military without trial. And some lawyers disagree with your interpretation.

So, my question to mheslep stands.

 

[Evo]

I say any US citizen that decides to engage in criminal activity aginst their country loses all rights to protection. They are now just another terrorist/treasonous criminal. Just my opinion.

 

[Jack21222]

I say any US citizen that decides to engage in criminal activity aginst their country loses all rights to protection. They are now just another terrorist/treasonous criminal. Just my opinion.

And how does one prove that the citizen has engaged in such activity if you don't give them the benefit of the legal protections of this country?

 

[PatrickPowers]

Going a step further, people need to relax about viewing this as a sign of moral decline. It is actually just the opposite: It is the rise of morality that exposes such gaps. Though it should be obvious, it is obviously not. But if you doubt it, just consider how different this conversation would be if we were to have had it 65 years ago, when carpet bombing was standard operating procedure and the Geneva Conventions didn't exist. We're having this conversation because our morality is evolving/advancing, not because it is declining.

The First Geneva Convention was in 1864. Representatives of the great powers of Europe took part and adopted a treaty having to do with treatment of the wounded. The third convention in 1929 added coverage of prisoners of war. The fourth Geneva Convention was in 1949, that seems to be what you are thinking of. I do know that Nazi Germany followed the third Geneva convention. The Japanese had also signed the 1929 convention but did not honor it, practicing terror tactics on a grand scale as a matter of policy including torture of prisoners. The Allies obeyed the convention and did not retaliate.

Sometimes I hear that "the US has always tortured." As you can see this is false. When I was a kid for some reason I read everything I could about this particular topic. Japanese torture was unthinkably gruesome -- it still makes me feel sick to think about what they did -- but I never read any suggestion that the US reply in kind. Instead in literature of the time one always reads that if we tortured then we would be just as bad as they were and then what would be the point of the war. The purpose of the war was to put a stop to such things. There was no debate on the issue. Somehow this point of view seems to have sunk beneath the waves of time and vanished without trace. Except for me. I was brought up with that and still see sense in this.

George Washington stated that the US should always practice a basic goodness, and that any temporary advantage to be gained by deviating from this could never be worthwhile in the end. After WWII the US held great moral authority as the leader of the free world, as the example of a better way of life, free from cruelty and hate and the pursuit of wealth that finds its most extreme expression in war. Great changes occurred. Much prestige was lost during Viet Nam, then W finished the job and all this was discarded as old-fashioned and unimportant. The concept of building a better way of life for all was forgotten and instead cruelty and hate are seen as a source of security. But not by me.

The US of 2011 is operating on a lower moral plane than it did in 1942. The slide began with the practice of torture in Vietnam. This was kept secret until recently, as the voters of 1972, some of who had fought a huge war to end such practices forever, would not have tolerated this. When the Abu Ghraib tortures were exposed I thought a public backlash would put a stop to it. How wrong I was.

 

[TheStatutoryApe]

For an enemy combatant in time or war to be detained without charge is not abuse. Civil war prisoners were not brought to trial. WWII prisoners held in the US were not brought to trial. If the state of war is the problem then work to have it revoked, not pretend it does not exist.

We are not "at war" with terrorists, regardless of any nationalistic propaganda to the contrary. One of the reasons why prisoners of war (actual war) are not typically brought to trial is because a soldier is not a criminal. Soldiers are merely doing their jobs. They are to be held until the end of hostilities so that they may then be repatriated to their countries of origin. They are not held until the end of hostilities so that they can be brought to trial, unless they are actually charged with crimes. The primary reason for holding the criminals until the end of hostilities would be the general lack of ability to run proper trials during an armed conflict. In the "war on terror" there is no such excuse to not try prisoners, especially those captured here in the US.

This has been posted repeatedly, the ACT only applies to "covered persons" and it's quite specific.

Typically when a law specifies "covered persons" it is the job of a court to determine whether or not the persons are indeed "covered". In this case it is apparently the President who determines whether or not a person is "covered", which seems to forgo the "checks and balances" built into our government.

 

[Alcubierre]

This is unconstitutional, plain and simple. It violates one's right of trial and it states that "suspects will be indefinitely held without trial." Only suspects. I find it more than interesting. It targets something that is supposed to be guaranteed by documents that this country was established upon. Military oppression must startle many people and the thought itself is even more fearful than what the act proposes. I hope the Senate doesn't believe the document will provide more safety for all citizens because that would not be the immediate or gradual effect it will have. Racial conflicts will rise solely for the fact that this document is against terrorism or anyone who speaks for terrorism. Many foreign immigrants are viewed through clouded eyes and are challenged because of skin tone, physical appearance, cultural beliefs, and many other factors they have no control over, such as the actions of their mother country. Though they have taken refuge in the States, they are never equally viewed throughout society. This act is no better of a cause for civil disunion as the issue of the peculiar institution was for the Civil War.

 

[Hurkyl]

Just so I'm on the same page...

Are people just inventing things they think we should be afraid of and telling people to be afraid of them? Or is the topic of discussion something real?

 

[russ_watters]

Padilla wasn't a convicted terrorist when the government locked him away for 3 years without trial, in the same way that you and I aren't convicted terrorists now. To me, that is a real miscarriage of justice.

There are several definitions of the word "justice" and I referenced two of them in that post: http://dictionary.reference.com/browse/justice

#5 is "the administering of deserved punishment or reward." This is physical: He is physically residing in a jail cell right now. He was punished appropriately for what he did. That's justice under that definition.

The other definition I referenced is #2: "lawfullness". Padilla was not (arguably) treated in accordance with the law. This is largely an administrative reality - it is argued and decided with words. More to the point, the justice system - the administrative procedures of our legal system - exist to serve definition #5. They exist to mete out physical justice. So for that reason, I consider the reality of that physical justice more important.

The trouble is, there's nothing to stop the government from arresting you or I as a suspected terrorist and holding you indefinitely in military prison.

I think the evidence shows that what is stopping the government from doing that to you or I is that neither of us are terrorists and they know it: The evidence shows that their judgement on the matter is sound. You fear that the next time their judgement may not be sound, fine. But that's not a rational fear: it has no logical basis.

To some people, the NDAA seems to reaffirm this stance of the government...

I think the fear is the government is reversing course, and reaffirming the stance that they can hold people like that.

I'm not a big fan of poor reading comprehension as a basis for fear.

 

[russ_watters]

Is it possible for a US citizen on US soil to be an "enemy combatant?"

[Beyond the particulars of this law...] Of course it is! We live in a luxurious and highly unusual position of not having had to worry about a conventional war having happened on American soil for 150 years, save for a few invididual acts such as Pearl Harbor. But 9/11 is an individual act of war and if, for example, an American Citizen had participated in it, they would be engaing in warfare on American soil, against the US.

And how does one prove that the citizen has engaged in such activity if you don't give them the benefit of the legal protections of this country?

It depends on the specifics of the situation. In some cases, it can happen via investigation and judgement by military intelligence. In others, it happens the same as it does for a non-american civilian in a war zone overseas: a private with an M-16 makes a split-second judgement before pulling the trigger. I think that's the point of confusion here, where people think that since the government had the luxury of time to investigate Padilla that that makes it the normal/natural/right way to go about it. But that is anything but normal/natural. War has never been a police/legal system matter and this highly unusual case shouldn't confuse people into thinking it usually is.

Hypothetically, if Flight 93 had been successfully taken back and crash-landed in a farm in rual Pennsylvania and two of the surviving terrorists, an American and a Saudi, escaped into the woods of PA: Who should go after them? The local police, FBI, INS and US Marshalls? No: I want the 101st Airborne, the Army Rangers and the Navy SEALs.

When they are found, holed up in a farmhouse, does the private who breaks down the door and finds them bother wondering the nationality of the two people in front of him? Of course not. He thinks: 'Are these the terrorists?' and 'Is he reaching for that shotgun on the table?' and if the answer to those questions is "yes", then he pulls the trigger and kills them.
[/Clancy]

 

[russ_watters]

Just so I'm on the same page...

Are people just inventing things they think we should be afraid of and telling people to be afraid of them? Or is the topic of discussion something real?

That was my point/question as well. The Padilla case is not an example of something real, that has applicability to the general public. It has to be extended to a hypothetical beyond what it is in order to fear it. For the law - that's just a matter of poor reading comprehension combined with irrational knee-jerk reaction.

 

[PatrickPowers]

I read a book called The Railroad Man by a British POW who was forced to work on the bridge over the river Kwai. It was no picnic: slave labor, disease, starvation, torture. Most of the prisoners died. He wrote that the worst thing he saw the entire time was a man being waterboarded.

Is no one else disturbed that the USA has adopted the practices of Imperial Japan, which was equal in its evil to Nazi Germany.

 

[TheStatutoryApe]

There are several definitions of the word "justice" and I referenced two of them in that post: http://dictionary.reference.com/browse/justice

#5 is "the administering of deserved punishment or reward." This is physical: He is physically residing in a jail cell right now. He was punished appropriately for what he did. That's justice under that definition.

The other definition I referenced is #2: "lawfullness". Padilla was not (arguably) treated in accordance with the law. This is largely an administrative reality - it is argued and decided with words. More to the point, the justice system - the administrative procedures of our legal system - exist to serve definition #5. They exist to mete out physical justice. So for that reason, I consider the reality of that physical justice more important.

As I noted earlier guilty people have rights too. The law is in place to protect those rights. If the government fails to follow the law it is not merely an administrative fault but an abuse of the rights of a citizen. There are some laws which have been considered by courts to be more of an administrative issue such as whether or not the proper procedure was followed to obtain a warrant. But locking someone up and holding them without charge is hardly so niggling an issue as administrative error.

 

[russ_watters]

No, you misunderstand both what happened and what the Constitution says about what is allowed: Locking Padilla up and holding him without tial was not what the error was (if it even existed at all). The error, according to the two courts that ruled on it, was that the Presient gave the order and he doesn't have that power: Congress has that power. The third court ruled that the war authorization act that Congress passed granted Bush the use of that power. The difference between the two rulings is most certainly an administrative one.

I'm pretty sure this was said earlier: the Constitution says a citizen can be locked up without trial in a time of war.

 

[turbo]

I'm pretty sure this was said earlier: the Constitution says a citizen can be locked up without trial in a time of war.

I'm a bit wary of the definition of "time of war". We are currently in a period of a perpetual "war on terror" and a "war on drugs", for instance. At some point, the ability to declare these "wars" ought to be curtailed, lest we end up living under an even more totalitarian regime. Appointing "czars" against terrorism, drug-use, etc should not be allowed. How do we manage to end up with endless levels of bureaucracy in what is purported to be a free country?

What would happen if the US government was forced to trim back and re-organize such that it was representative of the size and the relative (lack of) complexity during the Eisenhower administration? There is a lot of talk about "transparency" from DC and precious little activity to support the notion that any politicians actually want it.

 

[mheslep]

Is it possible for a US citizen on US soil to be an "enemy combatant?"

• Whiskey Rebellion 1789
• Confederates in the Civil War
• Ernest Peter Burger, Born in Germany, lived in US and became US citizen. Nazi saboteur landed in US via sub 1942. Captured and sentenced to life, later deported.

 

[russ_watters]

I'm a bit wary of the definition of "time of war". We are currently in a period of a perpetual "war on terror" and a "war on drugs", for instance.

Agreed, it does get sticky - with the caveat that the war on terror is an ACTUAL war, while the war on drugs is a figure of speech.

 

[russ_watters]

Several people here are just plain not thinking this issue through. You're focused on innocent civilians and fears of a gestapo that has never existed in the US and completely ignoring the other end of the spectrum that does/has:

As I said above, the US today and for the past 150 years has had the unique luxury of having very little war fought on US soil, but the US Constitution was written at a time when it was a near constant reality. As such, language was included to deal with the issue of citizens taking up arms against the government with the most stark example of exactly why that passage was written being the Civil War: Confederate soldiers didn't get arrested and get hearing to decide if they were enemy combatants! They just got shot on the battlefield. That didn't violate their right to a trial because it was written into the Constitution that it wasn't required. And rightly so, right? It would have been silly to try to arrest the Confederate Army!

So now we have established the clear need for the provision in the Constitution to hold American citizens, without trial, as enemy combatants. On the other end, we don't want ordinary citizens picked-up by a rogue leader's gestapo or even a in individual rogue general or police commander. Where these two sides meet in the middle is with a guy like Padilla.

Padilla was a terrorist and a member of a foreign paramilitary organization that was/is waging war on the US. We know it now and the government had a pretty good idea of it when they picked him up. Who he was absolutely fits the logical justification for holding him as an enemy combatant as per the Constitution. Where it gets sticky is that what he did and what they believe he intended to do is unconventional warfare, not traditional warfare.

When Padilla was undergoing bombmaking training in an Al Qaeda safehouse in Pakistan, he risked dying in the usual way foreign soldiers die away from the battlefield in war: via a bomb dropped on him. No arrest, no writ of habeas corpus, just a bomb.

But terrorism is a form of unconventional warfare whereby the terrorists attempt to hide amongst civilians instead of fighting openly on the battlefield. That inserts them into the domain - if not the jurisdiction - of the criminal justice system and creates legal risks for the civilians around them. The situation is further confounded by the existence of comlpetely domestic terrorists (Tim McVeigh) who have the same goals and methods, but never declare their intent to be enemy combatants ahead of their actions, the way Padilla did. About the only way for the government to even become aware of someone like McVeigh is for some of his preparations to ping on an FBI threat check (ie, a non-farmer buying too much fertilizer and blasting caps). McVeigh never clearly stepped across the line to become an "official" enemy combatant before blowing up his bomb and never had foreign ties, so there was no reason for military or CIA involvement prior to his action. After he blew up his bomb, the issue of confinement without trial or whether to use the military or civilian justice systems was basically moot.

So the spectrum can get a little fuzzy in the middle, but Padilla really is not very close to that line. And with the exception of Japanese Americans in WWII, there is little recent precedent on the "innocent civilian side" on which to base a fear of such persecution.

---------------------------------

As for this nonsense about the US's moral stature declining: the US interred 110,000 Japanese Americans during WWII, most of them citizens and virtually all of them innocent. Beyond that, the action was upheld by the courts at the time. So not only did the government do the wrong thing, the wrong moral justification was actually considered allowable by the courts! That during the war on terror we imprisoned, without trial, one citizen who was not innocent and a more dispassionate legal discourse ensued to challenge it is a spectacular improvement. The US is not perfect, but as the saying goes, we've been declining for so long, its amazing that things have managed to get so good!

 

[PatrickPowers]

As for this nonsense about the US's moral stature declining: the US interred 110,000 Japanese Americans during WWII, most of them citizens and virtually all of them innocent. Beyond that, the action was upheld by the courts at the time. So not only did the government do the wrong thing, the wrong moral justification was actually considered allowable by the courts! That during the war on terror we imprisoned, without trial, one citizen who was not innocent and a more dispassionate legal discourse ensued to challenge it is a spectacular improvement. The US is not perfect, but as the saying goes, we've been declining for so long, its amazing that things have managed to get so good!

They were not tortured, and were released after three years. You say that torturing and holding people indefinitely is a higher moral plane.