Our concerns about Sec. 1031 are ignored. The reconcile conference committee has produced a final version of NDAA, which Obama says he will not veto. US citizens are NOT exempted from being arrested and detained without charge or trial. See “U.S. Citizens Still Subject to Detention w/out Trial in Final Version of Defense Bill.”
See also, “There Really Are FEMA Camps.”
The Senate passed this bill on Dec. 1, 2011, by a 93 – 7 vote. To read about this, go here.
Sen. Dianne Feinstein confirms that S. 1867 indeed authorizes the President & military to detain U.S. citizens without trial.
The Internet is ablaze today with alarming news that the Senate is set to vote on a bill that would define the whole of the United States as a “battlefield” and allow the U.S. Military to arrest American citizens in their own back yard without charge or trial.
Chris Anders of the ACLU Washington Legislative Office writes: “The Senate is going to vote on whether Congress will give this president—and every future president — the power to order the military to pick up and imprison without charge or trial civilians anywhere in the world. The power is so broad that even U.S. citizens could be swept up by the military and the military could be used far from any battlefield, even within the United States itself.”
(H/t beloved fellows Tina & Joseph)
The bill in question is S.1867: the National Defense Authorization Act for Fiscal Year 2012. Senator Lindsey Graham (R-SC) reportedly supports the bill, saying that the legislation will “basically say in law for the first time that the homeland is part of the battlefield.”
It’s always better to go to the original primary source, instead of rely on a secondary source, such as the media’s report or someone else’s (e.g., the ACLU’s) interpretation.
So I scoured the net to look for the actual text (in PDF) of S. 1867. This is what I found:
The part of the S. 1867 that has the ACLU and others concerned are Sec. 1031-1033, under Subtitle D’s “Detainee Matters” — pages 359-371 in the PDF document:
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 follow:
(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.
(c) Disposition Under Law of War – The disposition of a person under the law of war as described in subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.
(2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)).
(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.
(4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.
(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.
(e) Requirement for Briefings of Congress – The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be ‘covered persons’ for purposes of subsection (b)(2).
SEC. 1032. REQUIREMENT FOR MILITARY CUSTODY.
(a) Custody Pending Disposition Under Law of War –
(1) 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.
(2) 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.
(3) DISPOSITION UNDER LAW OF WAR – For purposes of this subsection, the disposition of a person under the law of war has the meaning given in section 1031(c), except that no transfer otherwise described in paragraph (4) of that seciton shall be made unless consistent with the requirements of section 1033.
(4) WAIVER FOR NATIONAL SECURITY – The Secretary of Defense may, in consultation with the Secretary of State and the Director of National Intelligence, waive the requirement of paragraph (1) if the Secretary submits to Congress a certification in writing that such a waiver is in the national security of the United States.
(b) Applicability to United States Citizens and Lawful Resident Aliens –
(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.
As you can see for yourself, the actual text of S. 1867, specifically Sections 1031, 1032, and 1033, is much more nuanced than what the ACLU claims.
The ACLU alleges that the bill will “allow the U.S. Military to arrest American citizens in their own back yard without charge or trial.”
But the actual language of S. 1867 doesn’t say that at all. Instead, the bill specifically excludes United States citizens from the bill. The power given by S. 1867 to the President is over “covered persons.” Those “covered persons” are defined as (1) individuals who had been involved in the 9-11 terrorist attacks against the United States; and (2) who are members or supporters of al-Qaeda and associated enemy forces who had undertaken belligerent acts against America.
We can debate about whether giving the President of the United States the authority to have our military go after those “covered persons”. We can also debate what the definitions and meanings of S. 1867’s language are. All I ask is that, in so doing, you refrain from being disagreeable while disagreeing.
UPDATE (Nov. 30, 2011): (h/t Tina)
An e-mail from Oath Keepers’ Stewart Rhodes delineates the leading supporters and opponents of this bill in Congress.
One one side are the bill’s authors Senators John McCain (R- Ariz.) and Carl Levin (D-Mich.), who insist that Sections 1031-1032 would strengthen and codify the legal framework necessary for dealing with “terrorists.” Other supporters maintain that the language doesn’t necessarily include American citizens.
On the other side are Congressman Justin Amash (R-Mich.) and Sen. Rand Paul (R-Ky.). Amash voted against the bill in the House, and believes that the bill would “permit the federal government to indefinitely detain American citizens on American soil, without charge or trial, at the discretion of the President.” Amash maintains that the language “does not preclude U.S. citizens from being detained indefinitely, without charge or trial, it simply makes such detention discretionary,” therefore it is misleading and outrageous. For his part, Sen. Paul has proffered an amendment that strikes out Section 1031 of the bill.
Oath Keepers and the John Birch Society urge us to support Paul’s amendment. Contact your reps. and senators!
See also “Is Senate Bill 1867 Even Legal?,” Dec. 2, 2011.