I accidentally found myself mindlessly browsing Facebook on my iPad and I came across a gaggle of my friends who were very upset over the NDAA 2012 bill that passed into law.
Since nobody thought to answer my challenge about the validity of the statement that the NDAA 2012 section 1021 and 1022 would somehow lead to indefinite detentions for US Citizens then I clearly call bullshit on all the hysterics surrounding this law. Yes, I don’t really agree with a lot of the other sentiments but the hysterical fear-mongering surrounding the NDAA 2012 law just has to stop! I indicated the two sections that protect citizens and for those people who continue to share links about how this new law will lead to citizens ending up being incarcerated indefinitely.
Just stop it. Stop it or show me where in the text of the law it is clear that my rights have been suspended! Otherwise, shaddup!
Came across your blog from google and wanted to set the record straight for you. The assertion that the NDAA authorizes indefinite detention is most definitely not bullshit, it just requires understanding the totality of the situation.
The Authorization for the Use of Military Force(AUMF), which gave the go-ahead for the war on terror never mentioned "indefinite detention", but it did: "authorize [the President] to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons"
The Supreme Court upheld that this included detention by the military. Then there were two cases, Hamdi v Rumsfeld, and Padilla v Bush, both U.S. Citizens declared to be enemy combatants and held without trial or due process of any sort. In Hamdi, the Supreme Court found that while it was legal for him to be detained indefinitely under military law as an enemy combatant since they swooped him up in Afghanistan, he had the right to challenge his status as an enemy combatant. In Padilla, a case involving a U.S. citizen swooped up on U.S. soil, the Supreme Court decided that he had filed the case incorrectly and was instructed to file it in the state he was being held not his state of residence. The Bush administration then released Hamdi, and got Padilla's case moved to criminal courts.
A few of the important findings in those cases were that U.S. Citizens could be held as enemy combatants as broadly defined in the above AUMF, under the law of war, and were not per se entitled to the protections of Criminal Law. Under the law of war they could be held for the duration of "the conflict" without the government needing to provide any specific conditions under which the conflict would be declared over. They had the right to contest their designation as enemy combatants (as did foreign detainees) but the process they were due could be limited to varying degrees depending on what the government deemed to be necessary and proper in terms of the main goal of executing the war on terror. By releasing Hamdi and transferring the Padilla case, the question of how the U.S. could deal with citizens arrested on U.S. soil and those directly in the field of battle was never settled.
Then came the Obama administration. They ran with those cases and took it several steps further. Through a series of many cases, executive orders and legal arguments the current stance (pre-NDAA), both as a matter of case law and as a matter of executive policy is that "some evidence" is sufficient grounds for the initial capture of an enemy combatant. Evidence needn't prove enemy combatant status for the court to uphold that designation, it merely needs to "infer" it. There is no set standard for deciding each case, so while most cases have been decided on a preponderance of evidence rather than "beyond a doubt," some decisions have also pointed out that the lack of a set standard means that "some evidence" could well be enough. In referring to those who could be detained under military law, the term "enemy combatant" was dropped and replaced with "unprivileged enemy belligerent", which simply meant they were a "part of" Al-Qaeda, the Taliban or any affiliated organization whether they were engaged in armed conflict against the U.S. or not. And the cherry on the sundae was that instead of releasing a detainee if they were no longer a threat to the U.S., now if releasing a detainee was a threat to the U.S. for any reason, it would not be done, such as was the case of several Yemenis who, despite being found to pose no threat to National Security, were held because releasing them into an unstable Yemen would pose a threat.
All of this was basically just executive policy based on the President's interpretation of the AUMF which had been neither upheld nor stricken by the Supreme Court. Until we get the NDAA. Section 1021 affirms the authority of the President to detain not just those tied in some way to 9-11 like the AUMF, but anyone who's a part of, gives substantial support to, or in any way aids Al Qaeda, the Taliban, associated enemy forces, or those who commit belligerent acts. It authorizes holding them without trial (something which is not currently supported by Supreme Court Law), trying them in a military court, trying them in a different court, or shooting them off to a foreign country to be dealt with. Subsection (b) goes on to say that none of this should be said to effect existing law or authority to detain U.S. Citizens, Legal Aliens, or any other person captured on U.S. soil. First off, why say citizens, aliens or anybody, when just anybody would do the trick? Almost seems like this part of the bill wants to read like it applies to specific people, when it really only applies to a specific place.
Also, per the Hamdi decision the existing law is that U.S. Citizens can be captured and detained under the laws of war outside of the U.S. That's a settled question. So right there is proof that this bill does in fact authorize the indefinite detention, holding without trial, or rendition of U.S. citizens. Some politicians said that didn't matter since it was already confirmed to be a power granted under the AUMF, but what they don't point out is how it also expands the definition of who force is authorized against. Hamdi was allegedly plucked right from the firing lines so enemy combatant status was a pretty cut-and-dry conclusion. What if Hamdi-2 was captured in Britain for saying or writing something that someone interpreted as trying to gain Al Qaeda recruits? Given the current standards of proof and the current wording of the law, this could easily be used to justify indefinite detention.
As to U.S. soil, since Padilla ducked the authority to detain question, there is no existing law for this bill "not to effect." Instead there's Obama's boy-scout promise that he'll never ever use it against U.S. citizens, Bush's declaration that it's his right and duty to use it against U.S. citizens, and whoever comes next's best guess. If Obama breaks his pledge, or the next president decides to test the waters, this will probably be decided by the Supreme Court. In Padilla the decision was that there could be some conceivable circumstances where detention was legal, but we're going to go ahead and use this t he forgot to cross as an excuse to not touch that with a 10-foot-pole. In Padilla-2 or whatever, the Supreme Court now has an expanded definition of who "the enemy" is, a precedent in Hamdi and partial findings of Padilla-1, a congressional record that shows specific wording forbidding indefinite detention of U.S. citizens being voted down, and section 1022 that does explicitly exempt U.S. citizens from the detention requirement. It's not illogical to assume that if the exemption is in 1022 and was rejected in 1021 then the intention of 1021 was to include U.S. citizens on U.S. soil. It's not out of character for this court to use a consensus between the other two branches as a significant factor in their decision making. And if there were a successful domestic terrorist attack, the public would be screaming for blood so loud that they'd forget all about their initial beef with this law.