I caught myself in a mistake that I’m trying to correct. I accidentally shared a link to a web article that states that Senate Bill 1253 (Also apparently Senate Bill 1867) which is called the National Defense Authorization Act of 2012 has two sections which have everyone really bent out of shape, including me, erroneously, until I READ THE BILL.
Section 1031 has most peoples attention, the bill text excerpt online lacks a vital section that exists in the raw material of the bill itself. For this I blame THOMAS at the Library of Congress for omitting it.
Section 1031’s Prohibition
20 (d) CONSTITUTIONAL LIMITATION ON APPLICA-
21 BILITY TO UNITED STATES PERSONS.—The authority to
22 detain a person under this section does not extend to the
23 detention of citizens or lawful resident aliens of the United
24 States on the basis of conduct taking place within the
1 United States except to the extent permitted by the Con-
2 stitution of the United States. Last I checked the only exception that I can reason out is the set of laws established by the US Constitution. I have lived quite well under those old laws and I don’t see how this text has ANY wriggle room to do what the ACLU claims it does.
Section 1032’s Prohibition
(b) REQUIREMENT INAPPLICABLE TO UNITED
12 STATES CITIZENS.—The requirement to detain a person
13 in military custody under this section does not extend to
14 citizens of the United States. This one is utterly inescapable. It’s printed in BLACK AND WHITE. I can’t for the life of me see how either section would enable the government to indefinitely incarcerate any US Citizen at all. Such a thing would be a gross violation of the Posse Comitatus Act of 1878, to say nothing of violating the Fifth, Sixth, and Eighth Amendments to the United States Constitution!
After reading this blog, which pretty much states what I see as a gross display of fear-mongering by the ACLU and adherence to the bombastic bullshit claims that this bill somehow puts our civil liberties at risk. The text is clear for both sections, if you read the text itself!
I did a cursory search on Google for the phrase S.1253 and there are just too many sites all repeating the same bombastic bullshit. Claiming that the ACLU knows, or that Lindsey Graham said this or that, but nobody can show me in the text where the proof of their argument lies. I have read the bill and those two paragraphs, for both sections seem to me to be perfectly acceptable when it comes to protecting my civil liberties as a US Citizen.
If I am right, that means that the ACLU is guilty of misleading the public and engaging in misinformation. If that is the case, I can’t trust anything else they say because if they lied once, what proof could there possibly be that they are honest about anything else? They put their necks on the line over this bill. Frankly, just the fact that I doubt the ACLU’s veracity on this subject makes me reject everything else they say – but when it comes to the court of public opinion, if they are caught, it could ruin their credibility.
S1867 is the current bill being considered in the Senate. These provisions you mention are not included in S1867.
S1867 is the current bill being considered. These provisions you mention were in the previous bill 1253 and have been removed from the current one; S1867.
I.
ISSUE
Does the National Defense Authorization Act of 2012 (NDAA 2012, HR ) allow the Armed Forces to detain U.S. Citizens and legal U.S. residents for alleged terrorist acts or affiliations while within the territorial United States?
II.
RULE OF LAW
SEC. 1031. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.
“(a) In General – Congress AFFIRMS that the AUTHORITY of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40) includes the AUTHORITY for the Armed Forces of the United States to DETAIN covered persons (as defined in subsection (b)) pending disposition under the law of war. (b) Covered Persons – A COVERED PERSON under this section is ANY PERSON as follows: (1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a BELLIGERENT ACT or has directly supported such hostilities in aid of such enemy forces.”
(Emphasis added.)
III.
LEGAL ANALYSIS
Section 1031 (a) grants the President and the U.S. Armed Forces (presumably on the orders of the Commander-In-Chief) the AUTHORITY to detain COVERED PERSONS as defined in (b)(1)-(2), which include ANY PERSONS. This includes U.S. Citizens and legal U.S. residents that are suspected of planning, authorizing, committing or aiding acts of terrorism, BELLIGERENT ACTS and HOSTILITIES against the United States.
U.S. Senator Lindsey Graham (R-South Carollina) stated: “[Sec.] 1031, the statement of authority to detain, DOES APPLY to American citizens and it designates the world as the battlefield, including the homeland.” (Emphasis added.) Thus, Section 1031 is a Congressional grant of AUTHORITY to the Executive branch and military to hold alleged terrorists, belligerents and hostiles in military custody without trial and with no limitation on the duration of detainment.
The NDAA Section 1032 et seq even goes further by MANDATING military custody for alleged terrorists, belligerents and hostiles.
Section 1032 (a) CUSTODY PENDING DISPOSITION UNDER LAW OF WAR, paragraph (1) states: “IN GENERAL. — Except as provided in paragraph (4), the Armed Forces of the United States SHALL HOLD a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107–40) in military custody pending disposition under the law of war. [Note: Sec. 1032 (a) paragraph (2) basically restates the legal definition for a COVERED PERSON under the NDAA 2012. i.e. “COVERED PERSONS.—The requirement in paragraph (1) shall apply to any person whose detention is authorized under section 1031 who is determined —
(A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and (B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.”
Hence the NDAA 2012, not only AUTHORIZES but COMPELS the Armed Forces to hold COVERED PERSONS in military custody pending a military trial, i.e. “disposition under the law of war” (see above Sec. 1032 (a)).
Congress did try to restrict the AUTHORITY with a meager protection by placing a waiver to the REQUIREMENT under Section 1032 (a) in Section 1032 (b).
Section 1032 (b) APPLICABILITY TO UNITED STATES CITIZENS AND LAWFUL RESIDENT ALIENS, states: “(1) UNITED STATES CITIZENS. —The requirement to detain a person in military custody under this section does not extend to citizens of the United States.” (2) LAWFUL RESIDENT ALIENS. — The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.”
Proponents that support NDAA 2012 have misrepresented the language of Section 1032, making it look like U.S. Citizens and legal U.S. Residents are exempt or immune from the detention provisions of the Act. This is not true. The language in this Section is unambiguous and clear, it grants a waiver to the REQUIRED DETENTION of COVERED PERSONS, thus leaving detention as a discretionary measure to be employed by the President or U.S. military. In simple terms non-Citizens and non-legal Residents MUST BE DETAINED, while U.S. Citizens and legal U.S. Residents MAY BE DETAINED at the discretion of the U.S. military. Subsection (b) merely clarifies that the REQUIREMENT is waived; however the authority is still there. Section 1032 would just ‘let’ the government detain a U.S. Citizen or legal U.S. Resident in military custody, not ‘force’ it to do so. Does anyone really believe that the Secretary of Defense will choose not to detain COVERED PERSONS, when s/he has the legal AUTORITY to do so.
There was a version of the Bill which included greater protection for U.S. Citizens in Section 1031, which stated:
(d) CONSTITUTIONAL LIMITATION ON APPLICABILITY TO UNITED STATES PERSONS. — The AUTHORITY to detain a person under this section does not extend to the detention of citizens or lawful resident aliens of the United States on the basis of conduct taking place within the United States except to the extent permitted by the Constitution of the United States.
However, this drafted Prohibition never made it to a vote and does not appear in the controversial version of the NDAA 2012, which has created a political firestorm with liberals, TRUE conservatives and the ACLU. It is thus merely a tool for legislative curiosity and has no binding effect whatsoever on the military if the current version becomes law.
IV.
CONCLUSION
The real issue is with the language of the Act. The words used basically state that the government is not REQUIRED to detain you, but no where does it state that they “SHALL NOT” detain you. In legal terms there is a big difference. Sadly most Americans wrongly seem to think that a law that says your NOT REQUIRED to do something, is the same as a law that says you SHALL NOT do it. There are plenty of laws that RESTRICT government actions and clever police and prosecutors violate suspects Civil Rights anyway and then argue legal ambiguities to justify their illegal actions. You just have to take Criminal Procedure of Constitutional Law classes in law school to see how the government violates civil rights and tries to justify its actions, claiming violations are in the public’s best interests. Personally I am like our Funding Fathers, I don’t trust anyone in government — not the President, the Congress, the Judiciary or the military. The NDAA 2012 is a slippery slope that could result in horrible Civil Rights abuses if not worded better. The current version is overly broad and vague enough to allow abuses, which would require Court interpretation. However, since detained persons ARE NOT allowed a lawyer or access to the COURTS, the judiciary may never get a test case to rule on the law. The FACT that many DEMOCRATS, REPUBLICANS and INDEPENDENTS are disturbed by the Bill’s language is evidence that something is wrong with it in their eyes.
“I'm very, very, concerned about having U.S. CITIZENS sent to Guantanamo Bay for indefinite detention,” said Senator Rand Paul (R-Ky.), one of the Senate’s most conservative members. (Bold & Emphasis added.) Senator Paul’s top complaint is that a terrorism suspect would get just one hearing where the military could assert that the person is a suspected terrorist — and then they could be locked up for life, without ever formally being charged. The only safety valve is a waiver from the Secretary of Defense. “It’s not enough just to be alleged to be a terrorist,” Paul said, echoing the views of the American Civil Liberties Union. “That's part of what DUE PROCESS is — deciding, are you a terrorist? I think it’s important that we not allow U.S. citizens to be taken.” “Congress is essentially authorizing the indefinite imprisonment of American citizens, without charge,” said Senator Dianne Feinstein (D-Calif.), who offered another amendment — which has not yet gotten a vote — that she said would correct the problem. “We are not a nation that locks up its citizens without charge.” (Bold added)
The old maxim is true, “If you gave them [the U.S. Government] an inch, they will take a mile!” That is why the bill must be amended to provide better safeguards to protect U.S. Citizens and legal U.S. Residents, anything less is treason to the Republic which its supporters claim to want to protect.
John is right the current Bill is S1867, you can find it at http://www.gpo.gov/fdsys/pkg/BILLS-112s1867pcs/pd… and other government websites.
BTW S1867 a.k.a. NDAA 2012, Section 1031 (d) now reads as follows: "(d) CONSTRUCTION. — Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force." There is absolutely no mention of prohibiting the arrest or detention of U.S. Citizens or legal U.S. Residents whatsoever.
REMEMBER?
"First They Came for the Jews"
By Pastor Niemoller
First they came for the Jews and I did not speak out because I was not a Jew.
Then they came for the Communists and I did not speak out because I was not a Communist.
Then they came for the trade unionists and I did not speak out because I was not a trade unionist.
Then they came for me and there was no one left to speak out for me.