National Defense Authorization Act: Military can detain US citizens?

[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.

 

[russ_watters]

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.

I would not be so loose with my metaphors: there is an actual war going on in afghanistan, is there not?

 

[Ryan_m_b]

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.

Protection for prisoners (especially prisoners of war) is a vital tool for preventing abuse and miscarriages of justice. Regarding how one determines if someone is a terrorist there isn't exactly a good track record of this, Mohammad el Gharani was a teenager detained in Guantanamo bay for seven years for being suspected to be involved in a plot that occurred when he was 12. Ultimately there was no evidence but he suffered abuse for years until finally a writ of habeas corpus cleared his name and repatriated him.

 

[russ_watters]

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.

You worded that so broadly, it doesn't sound like you support even the detention of pows!

 

[Ryan_m_b]

You worded that so broadly, it doesn't sound like you support even the detention of pows!

I don't have an answer for how the situation should be changed but the last ten years has done nothing to make me trust military identification and handling of detainees. I appreciate the need for taking POWs and I am not against that but there should be in place mechanisms to prevent abuse such as inspection from an independent party (possibly including public inquiries in cases of abuse) and allowing habeas corpus as well as the usual human rights to detainees.

Allowing military personnel to just shove anyone they suspect of being a terrorist into a camp where they experience abuse and possibly torture with little or no appeal process is a disgusting idea normally associated with N. African and M. Eastern tyrants. It saddens me that in the last decade there have been similar cases in the west.

 

[Drakkith]

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.

I doubt they can pick up simply anyone. We are looking at one specific piece of legislature that specifically says that it exempts US citizens from this requirement. Furthermore, I'm nearly certain that there are OTHER LAWS which make this happening to US citizen illegal anyways. Beyond US citizens there are a multitude of laws within the military defining who is who. And in a time of war or emergency one cannot wait and "make sure" someone is a terrorist. It's a bad way to do business.

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.

No one is picking up anyone just because there is a "War on Terror". That isn't an actual war. The legislature specifically stated what it covered:

(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 (

Protection for prisoners (especially prisoners of war) is a vital tool for preventing abuse and miscarriages of justice. Regarding how one determines if someone is a terrorist there isn't exactly a good track record of this, Mohammad el Gharani was a teenager detained in Guantanamo bay for seven years for being suspected to be involved in a plot that occurred when he was 12. Ultimately there was no evidence but he suffered abuse for years until finally a writ of habeas corpus cleared his name and repatriated him.

It is unfortunate that situations like this occur, however it is unreasonable to require normal amounts of evidence in a time of war. Many times it simply can't be done, and would you rather release someone who is going to kill more people?

 

[Drakkith]

I don't have an answer for how the situation should be changed but the last ten years has done nothing to make me trust military identification and handling of detainees. I appreciate the need for taking POWs and I am not against that but there should be in place mechanisms to prevent abuse such as inspection from an independent party (possibly including public inquiries in cases of abuse) and allowing habeas corpus as well as the usual human rights to detainees.

Absolutely. I could understand some amounts of abuse taking place in field camps where you have troops on the line handling prisoners, but not in a long term facility.

Allowing military personnel to just shove anyone they suspect of being a terrorist into a camp where they experience abuse and possibly torture with little or no appeal process is a disgusting idea normally associated with N. African and M. Eastern tyrants. It saddens me that in the last decade there have been similar cases in the west.

You're assuming that whatever camp they go to will have abuse and torture. In the light of recent events I don't see this being nearly as likely as it used to be.

 

[daveb]

I would not be so loose with my metaphors: there is an actual war going on in afghanistan, is there not?

No one is picking up anyone just because there is a "War on Terror". That isn't an actual war. The legislature specifically stated what it covered:

I was merely pointing out that since it can be assumed Al Queda will (probably) exist indefintely, a person held can be held indefintely even if the war in Afghanistan ends at some future time. At what point would the person be released?

 

[Drakkith]

I was merely pointing out that since it can be assumed Al Queda will (probably) exist indefintely, a person held can be held indefintely even if the war in Afghanistan ends at some future time. At what point would the person be released?

You tell me. If it is likely that the person will commit acts of terror against the US would you release them?
If you can't be sure if they will or not, would you release them?

 

[Office_Shredder]

I doubt they can pick up simply anyone. We are looking at one specific piece of legislature that specifically says that it exempts US citizens from this requirement.

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.

Furthermore, I'm nearly certain that there are OTHER LAWS which make this happening to US citizen illegal anyways. Beyond US citizens there are a multitude of laws within the military defining who is who. And in a time of war or emergency one cannot wait and "make sure" someone is a terrorist. It's a bad way to do business.

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?

 

[Drakkith]

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?

My job doesn't deal with legal issues, so I don't know specific laws at this time.

 

[Office_Shredder]

You tell me. If it is likely that the person will commit acts of terror against the US would you release them?
If you can't be sure if they will or not, would you release them?

This is a strawman. The question isn't should terrorists be released. The question is how should we decide on who is a terrorist and who isn't - in the existing judicial system, or via a closed military tribunal which has no checks or balances to their decision making process

My job doesn't deal with legal issues, so I don't know specific laws at this time.

If no such laws are known amongst the people in the conversation, and you can't find anybody on the internet talking about them even, then it seems pointless to speculate on their possible existence

 

[russ_watters]

More, that I hope isn't too tangential:

We discussed in another thread recently the spectacular decline of War in the West over the past 60 years or so. The whys and hows are a broad discussion, but along with the decline of War came a rise in morality, manifest as a reduced tolerance for the terribleness of war. Some of it just happened (smart bombs instead of carpet bombing - not just cheaper, easier and more effective, but now a moral requirement), some was legislated (Geneva Conventions). The problem comes in trying to integrate the civilized Western world with the 'everyone else' in the world. And I don't care if that sounds arrogant: it's a reality - it's what this discussion is really about.

The clearest example of Western morality's failure to deal with people who don't buy-into Western morality is with our utter failure to adequately deal with the piracy problem in Africa. The US Navy and Marine Corps' very first power projection abroad was in dealing with African piracy (the Barbary Wars). The wiki on it calls the successful Second Barbary War "the beginning of the end of piracy in that region...Within decades, European powers built ever more sophisticated and expensive ships which the Barbary pirates could not match in numbers or technology." But now piracy is back. The physical equation hasn't changed - if anything, the technological divide is even broader. What has changed is that we've built ourselves a cage of supposed superior morality that prevents us from dealing with these pirates on their terms. To bring back the sports analogies: it is tough to win a game when you follow the rules and your opponent doesn't.

IMO, a morality that leaves the moral unable to protect themselves from the immoral is ineffectual. If everyone subscribed to and was or could be held accountable to the same morality, it would make sense to ship pirates to Paris or New York for trials (as we have), but they don't and it doesn't. It may feel nice[/b] to do it, but we don't have an NYPD precinct in Mogadishu, so it just doesn't have much value beyond showing the pirates that we are, in fact, not serious about stopping them.

Piracy is a simple, clear-cut, historically vetted example of the necessity of dealing with such people on their terms and our failure to do so makes it very surprising to me that we are dealing with terrorists - IMO correctly - on their terms in a lot of cases. Terrorism is new and much more difficult because of what it is in many cases: an infiltration.

Anwar al-Awlaki, an American citizen, killed by a drone in Yemen, was not just a crazy guy with a Youtube account. He was a recruiter and manager of al Qaeda terrorists (just read his wiki - these things are too obvious to need to actually discuss them here). His activity in the US in the '90s and leading up to 9/11 - as a prominent, mainstream Muslim, secretly helping coordinate terrorist attacks - make him the archetype of why Muslims are often feared in the US.

AFAIK, he was never charged with a [major] crime, but was placed on a targeted killing list by Obama - which was shocking to me. His fater, in the US, sued Obama to have him removed. The lawsuit was thrown out for lack of legal standing. 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. Yet for some reason, at the same time, we put pirates under the jurisdiction of the NYPD?! Crazy.

My point is this: The law is built on a framework of morality, but that framework has limitations - gaps - that sometimes make it difficult to stretch the law to fit it. We should absolutely continue to strive to fill those gaps and codify our morality, but we should not lose sight of where the gaps just can't yet be filled. This is one of those cases. The US has a long and prominent history of development, expansion and protection of rights. It is, imo, silly, insulting and paranoid to see us becoming Stalinist Russia because we're struggling to deal with a newly found gap (due to a new threat) in our ability to apply morality to the law - or rather, our ability to protect our morality with the law.

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.

 

[Oltz]

As a Vet I will add a small sidebar comment about the geneva convention.

If you actually read it stipulations are made in it.

1. It only applies between parties that have both signed it.
2. It only applies to uniformed combatants, medical personnel, and vehicles with clear insignia's
3. Only detainees who meet these criteria are legally POW's in international law under the geneva convention and thus are protected by the agreements signed by member nations.

We as the US choose to follow the majority of the restrictions of the convention in all of our conflicts. Legally we do not need to follow any of them in Iraq or Afghan as neither country has signed.

Any combatant that is not uniformed and not recognized by the governement the they represent litterally has no protection. This would include Delta or CIA agents hence dis avow. The government can choose to be responsible for the actions of a non uniformed agent or choose to abandon them.

BY the same token the US army could never deem a US citizen to be a POW as they are non uniformed and not recognized by another government. The people held in cuba are not POW they have no legal protection in any court in essence they are not people.

Unsactioned activities carry a large risk internationally for the specific purpose of dettering espoinage. Either the government sponsor accepts responsibilty or they burn the agent. Leaving them with nothing no rights no protection. Its ment to be a hard choice that is the point.

These terror cells are exactly the type of thing that is ment to be delt with harshly or they will never stop.

I do not condone any country ever being able to treat its own citizens in this way and feel that would be against international law as human rights violations.

Those who act without a flag suffer for that choice.

 

[russ_watters]

Protection for prisoners (especially prisoners of war) is a vital tool for preventing abuse and miscarriages of justice.

Sure, but that doesn't make them clear to apply or universal.

Regarding how one determines if someone is a terrorist there isn't exactly a good track record of this, Mohammad el Gharani was a teenager detained in Guantanamo bay for seven years for being suspected to be involved in a plot that occurred when he was 12. Ultimately there was no evidence but he suffered abuse for years until finally a writ of habeas corpus cleared his name and repatriated him.

I object to your characterizations, but I will never claim our application of morality to be perfect, Ryan: It is merely spectacularly advanced.

 

[Oltz]

To clarify a uniformed soldier has Organization, Unit, and rank displayed clearly.

I.e. US Army 28th ID SSG

Most also include a flagto easily cross language barriers.

 

[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