Call your Senators - We're going down the UK path

[VMI77]

Doesn't look like that's true to me --there are two categories of "covered persons." One applies to people covered under the authorization to use the military in response to the 9/11 attacks. The other, paragraph 2, applies to people who have supported associated forces or committed a "belligerent" act against the US or it's coalition partners. Supported could mean giving money to a charity, that unbeknownst to the contributor, funnels money to one of those "associated" forces, something it is entirely possible to do without the knowledge or intent of aiding such forces. Posting inflammatory comments on the internet could be construed as a "belligerent" act.

You need to read the whole section as it reads. The first paragraph says it applies to covered persons as defined by the next paragraph if they are authorized under the mentioned law. The second paragraph then defines who a covered person is. This means that the person must meet one of the requirements in paragraph b to be a covered person and the requirement in paragraph a of being covered by the law.

Also, where does it say the law doesn't "apply" to US citizens? It says the "requirement" to detain doesn't extend to US citizens, which merely seems to make such detention discretionary. Nowhere does it say such detention is prohibited. If the intention is really to exclude US citizens, why doesn't the language say so in no uncertain terms?

Again, you need to read the whole section. In this case, you also need to understand some legal wording. Paragraph A says the military shall hold a person. This makes it a requirement, not just an authority. So, in paragraph b when it removes the requirement, it also means all other laws become applicable. This includes posse comitatus that denies the military the authority unless otherwise specifically authorized.

So, the way I read the law, there is a lot of smoke and mirrors being thrown around about it. I do not find the law to allow detention of US citizens based on this law. I could be wrong of course, as I disagreed with some of the other legal rulings to come out of the Attorney General's office in the past few years (both the current and previous AGs).

The other significant element here is that detention comes without any presentation of evidence, since there is no trial; nor is there any limit on the length of detention, since we all know that the WOT is never going to end. So essentially, the law allows people to be placed in prison, indefinitely, on nothing more than an allegation (and no doubt, the claim will be made that there is evidence, but it's secret and can't be disclosed). Finally, I will point out that the Constitution doesn't grant the right to trial only to "citizens" --it says "persons."

This is a point I wholeheartedly agree with. The Constitution applies to the US government and limits it no matter who it is dealing with. One of the rulings I disagreed with that I referred to is the concept that the Constitution does not apply to the US government when it has its agents operating outside the US. The best way to protect my rights is to protect everyone else's rights also.

Anyone who wants to argue against this law on this basis has my full support. I don't like this law or the authority to use military force to begin with. But I strongly dislike the partisan debate that is full of untruths, half-truths, and misdirection. We need to debate on the basis of actual facts.

That one word, "requirement," makes me read it differently than you do, principally because using another word, like power, or authority, would make it crystal clear that it doesn't pertain to US citizens. The ACLU apparently agrees with my interpretation: http://www.aclu.org/blog/national-secur ... fine-being

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.

But you don’t have to believe us. Instead, read what one of the bill’s sponsors, Sen. Lindsey Graham said about it on the Senate floor: “1031, the statement of authority to detain, does apply to American citizens and it designates the world as the battlefield, including the homeland.”


But more significant is the quote from Lindsey Graham:

http://www.c-spanvideo.org/appearance/600840428

07:20:00 1031, THE STATEMENT OF AUTHORITY TO DETAIN, DOES APPLY TO AMERICAN CITIZENS AND IT DESIGNATES THE WORLD AS THE BATTLEFIELD, INCLUDING THE HOMELAND.

[Rex B]

Constitutional scholars are taking this on:

http://volokh.com/2011/11/30/defense-bi ... spiracy%29" onclick="window.open(this.href);return false;

Senate proceedings when Senator Udall introduced his amendment:
http://www.c-spanvideo.org/program/SenateSession4951" onclick="window.open(this.href);return false;
Start at 4:42 to hear the exchange with Senator Levin which says that the bill that was voted on in the Armed Services Committee originally excluded US Citizens from the detention provision above and that White House requested that the detention of US Citizens be allowed or he would veto the bill.
Therefore, it is the President that wants the authority to detain US Citizens to be in this bill against the original intent of Congress.

The consensus among experts who are MUCH smarter than I seems to be that this is a Bad Thing.
Ironically, it looks like Obama might veto this bill, for all the wrong reasons.

[VMI77]

Constitutional scholars are taking this on:

http://volokh.com/2011/11/30/defense-bi ... spiracy%29" onclick="window.open(this.href);return false;

Senate proceedings when Senator Udall introduced his amendment:
http://www.c-spanvideo.org/program/SenateSession4951" onclick="window.open(this.href);return false;
Start at 4:42 to hear the exchange with Senator Levin which says that the bill that was voted on in the Armed Services Committee originally excluded US Citizens from the detention provision above and that White House requested that the detention of US Citizens be allowed or he would veto the bill.
Therefore, it is the President that wants the authority to detain US Citizens to be in this bill against the original intent of Congress.

The consensus among experts who are MUCH smarter than I seems to be that this is a Bad Thing.
Ironically, it looks like Obama might veto this bill, for all the wrong reasons.

Then there's this ---granted, from those leaning to the left-- but then the MSM doesn't seem to be covering this:

http://www.salon.com/2011/12/01/congres ... ingleton/#

(1) mandates that all accused Terrorists be indefinitely imprisoned by the military rather than in the civilian court system; it also unquestionably permits (but does not mandate) that even U.S. citizens on U.S. soil accused of Terrorism be held by the military rather than charged in the civilian court system (Sec. 1032);

http://www.progressive.org/mccain_says_ ... anamo.html

Sen. Rand Paul has introduced an amendment to delete this section entirely, and on Tuesday, he had the following exchange with Sen. John McCain, who is co-sponsoring the bill.

Sen. Paul: “My question would be under the provisions would it be possible that an American citizen then could be declared an enemy combatant and sent to Guantanamo Bay and detained indefinitely.”

Sen. McCain: “I think that as long as that individual, no matter who they are, if they pose a threat to the security of the United States of America, should not be allowed to continue that threat.”

Christopher Anders, senior legislative counsel of the ACLU, explains the problem.

“The exclusion on Section 1032 only applies to 1032. It doesn’t apply to 1031,” he says. “And that only makes it worse, because any judge is going to say, ‘Of course, members of Congress meant for American citizens to be detained because if they didn’t, they would have put in the exception they put in one section later.’ ”

Here’s what Sen. Graham said in the Senate on Nov. 17:

“1031, the statement of authority to detain, does apply to American citizens and it designates the world as the battlefield, including the homeland.”


If it isn't intended to apply to American citizens then there should be no problem clarifying the language to make it certain....that there is no attempt to do so is telling. And then, there is also the fact that the Constititution doesn't just apply to American citizens, it applies to "people" in the US --this alone makes the legislation unequivocally unconstitutional. It is my contention that anyone using his power to so clearly violate the constitution, especially one who has taken an oath to uphold it, is a traitor.

[Medic624]

So...What's the take?

Does it or doesn't it allow for indefinite detention without Due Process of American Citizens on US soil under the supposition they may have some errant ties or suspected to be a terroristic threat?

I know how I feel about the wording I'm curious as to how other ppl see it...

[Rex B]

I've since read quite a bit on this in other sources. One of the best is the Volokh Conspiracy blog, which is written by constitutional scholars and attorneys such as Orin Kerr. The consensus there seems to be that it means what we suspect it means. And it also appears our congresscritters that voted for it knew it also. Some voted to take that wording out, but it was put back in.

[srothstein]

The general consensus is that the law allows for US citizens who assisted in the attacks on Sep 11 or supported al Qaeda or its allies in any attack on the US may be detained. This is the part of section 1031 that is the most debatable. The law is vague and says it is a reaffirmation of the law passed in the authorization to use force after the 9-11 attacks.

As such, this is not a change from the current law in the US. If you felt that US citizens could be detained under the previous law, then you would say they could be under this law. If you felt it did not apply, then it would not apply now. Of course, Padilla was a US citizen who was arrested in the Chicago airport and then transported to Guantanamo for detention. I do not fully remember the court cases on it, but I think he was allowed to have a lawyer and fight the detention under habeas corpus rules. If I do remember correctly, the case was made moot before SCOTUS could rule on the actual detention.

The requirement in section 1032 for all detainees to be held by the military does not apply to US citizens. The lack of the requirement does not forbid military detention.

Overall, I think the law does allow for the military to detain US citizens, but they are allowed to fight it under habeas corpus laws. I don't know if anyone has challenged the law based on Fourth or Fifth Amendment rules and had a ruling make it all the way to SCOTUS. I do not see how this could be upheld that far, but the previous detentions made it further than I thought they would also.

[Purplehood]

I wonder how we handled the Barbary Pirates? Criminals, Combatants or some other legal-limbo classification?

I just remember that we shot them when we could.

[warhorse10_9]

Here is what I received from Senator Hutchison:

Dear Friend:
Thank you for contacting me regarding certain provisions of H.R. 1540, the fiscal year 2012 National Defense Authorization Act (NDAA). I welcome your thoughts and comments.

It has been suggested in some press accounts and commentary that certain provisions in this bill would allow the President to detain American citizens within the United States indefinitely if the President brands them as a terrorist. That is simply not accurate.

On December 15, 2011, Congress passed H.R. 1540, which contains two sections (Sections 1031 and 1032) that address the detention of suspected terrorists. Over the past decade, the Bush and Obama Administrations have detained members of terrorist organizations, both at home and abroad, in order to protect our country and our people. The federal courts have affirmed the legality, general and specific, of such detentions. Congress added Sections 1031 and 1032 to the NDAA in order to codify the limits of detention authority.

Section 1031 establishes guidelines to allow U.S. Armed Forces to detain “covered persons” captured during hostilities as unprivileged enemy combatants, under the laws of war. A “covered person” is now defined in federal law as a person who planned, authorized, committed, or aided the terrorist attacks of September 11, 2001. Nothing in this section authorizes U.S. Armed Forces to capture and detain U.S. citizens for any other reason.

Section 1032 requires U.S. Armed Forces to hold in custody as an unprivileged enemy combatant any person who is a member or part of al Qaeda or associated forces, and who participated in planning or carrying out an attack or attempted attack against the United States or its coalition partners. This section clearly states that this requirement does not extend to citizens of the United States.

These two sections of the NDAA have been the subjects of some controversy. Americans are right to be concerned and vigilant about potential threats to our civil liberties. Please be assured that I and other Members of Congress reviewed Sections 1031 and 1032 of the NDAA very carefully and consulted with respected legal experts before giving bipartisan approval.

Should related detainee provisions come for consideration before the full Senate, you may be certain I will keep your views in mind.

I appreciate hearing from you, and hope that you will not hesitate to contact me on any issue that is important to you.

Sincerely,
Kay Bailey Hutchison
United States Senator

[Rex B]

I got that same email.

Others apparently disagree:

(HELENA) - Moving quickly on Christmas Day after the US Senate voted 86 - 14 to pass the National Defense Authorization Act of 2011 (NDAA) which allows for the indefinite military detention of American citizens without charge or trial, Montanans have announced the launch of recall campaigns against Senators Max Baucus and Jonathan Tester, who voted for the bill.

Facebook: "Recall Every Congressman Who Voted for the NDAA"
http://www.google.com/url?sa=D&q=http:/ ... T02jY62oAQ" onclick="window.open(this.href);return false;

"You don't need to be a meteorologist to know if it's raining outside, and you don't need to be a constitutional scholar to know that permanent wartime powers amounts to the overthrow of the Bill of Rights of the US Constitution. Treason."
http://recallthetraitors.blogspot.com/" onclick="window.open(this.href);return false;

[VMI77]

Here is what I received from Senator Hutchison:

Dear Friend:
Thank you for contacting me regarding certain provisions of H.R. 1540, the fiscal year 2012 National Defense Authorization Act (NDAA). I welcome your thoughts and comments.

It has been suggested in some press accounts and commentary that certain provisions in this bill would allow the President to detain American citizens within the United States indefinitely if the President brands them as a terrorist. That is simply not accurate.

On December 15, 2011, Congress passed H.R. 1540, which contains two sections (Sections 1031 and 1032) that address the detention of suspected terrorists. Over the past decade, the Bush and Obama Administrations have detained members of terrorist organizations, both at home and abroad, in order to protect our country and our people. The federal courts have affirmed the legality, general and specific, of such detentions. Congress added Sections 1031 and 1032 to the NDAA in order to codify the limits of detention authority.

Section 1031 establishes guidelines to allow U.S. Armed Forces to detain “covered persons” captured during hostilities as unprivileged enemy combatants, under the laws of war. A “covered person” is now defined in federal law as a person who planned, authorized, committed, or aided the terrorist attacks of September 11, 2001. Nothing in this section authorizes U.S. Armed Forces to capture and detain U.S. citizens for any other reason.

Section 1032 requires U.S. Armed Forces to hold in custody as an unprivileged enemy combatant any person who is a member or part of al Qaeda or associated forces, and who participated in planning or carrying out an attack or attempted attack against the United States or its coalition partners. This section clearly states that this requirement does not extend to citizens of the United States.

These two sections of the NDAA have been the subjects of some controversy. Americans are right to be concerned and vigilant about potential threats to our civil liberties. Please be assured that I and other Members of Congress reviewed Sections 1031 and 1032 of the NDAA very carefully and consulted with respected legal experts before giving bipartisan approval.

Should related detainee provisions come for consideration before the full Senate, you may be certain I will keep your views in mind.

I appreciate hearing from you, and hope that you will not hesitate to contact me on any issue that is important to you.

Sincerely,
Kay Bailey Hutchison
United States Senator

What that tells me is that Kay Bailey either has limited comprehension of the English language or is a liar. It's an indisputable fact than many legal professionals, from practicing attorneys to law professors, contradict KB's claim, so the BEST she can claim is that the language is ambiguous enough that its meaning can ultimately only be determined by the Courts. It's also a fact that clarifying language --language that would have made KB's claims explicitly true-- were voted down. There is no logical reason for voting against such clarifying language if the legislation really wasn't INTENDED to apply to US citizens. What actually happened is that Congress DELIBERATELY voted to preserve ambiguity that allows indefinite detention of American citizens --a power already claimed by the Executive. It's simply not plausible that KB doesn't know this, so I have to conclude she's a liar.

[speedsix]

...yep, she is a politician...I like better what Suzanna Gratia Hupp had to say about things...plain out honest...and challenging... some of us AIN'T goin' for that ride...

[warhorse10_9]

What that tells me is that Kay Bailey either has limited comprehension of the English language or is a liar. It's an indisputable fact than many legal professionals, from practicing attorneys to law professors, contradict KB's claim, so the BEST she can claim is that the language is ambiguous enough that its meaning can ultimately only be determined by the Courts. It's also a fact that clarifying language --language that would have made KB's claims explicitly true-- were voted down. There is no logical reason for voting against such clarifying language if the legislation really wasn't INTENDED to apply to US citizens. What actually happened is that Congress DELIBERATELY voted to preserve ambiguity that allows indefinite detention of American citizens --a power already claimed by the Executive. It's simply not plausible that KB doesn't know this, so I have to conclude she's a liar.

That's the way I felt when I got the email, I specifically mentioned my concerns about the ambiguity when I emailed her, she seems to have ignored them. As others have said, she is a politician. Apparently quite a few people in Washington think we are all idiots.

[Rex B]

One more good reason for KBH to retire. She's not doing the job we sent here there for.

[chasfm11]

One more good reason for KBH to retire. She's not doing the job we sent here there for.

For me, she has been on the wrong side of many other issues besides this one. My hope, however, is that we don't end up electing someone who is even worse.