Bill S -1867 Is Creating A Furor Update: 11/29 Includes Sec. 1031


You have to read the bill yourself to decide how you feel about it because there is misinformation on both sides of this conversation. Some of the information is based on where the bill might be leading us, but I find that I have to be careful about prognostications though I believe might present some serious concerns.

Bill S.1867, also known as the National Defense Authorization Act for Fiscal Year 2012, is creating angst with people on the left and the right. The bipartisan bill, which was drawn up by the Senate in closed session, is currently being amended on the Senate floor.

It is questionable whether it will pass since nothing passes in the Senate.

The bill allows the use of the military in civilian law enforcement roles on U.S. soil, and it overrules Habeas Corpus in certain cases. People are concerned that it will be used against U.S. citizens. The discontinuation of Habeas Corpus in limited cases is another concern for many.

Is the furor over this bill a tempest in a teapot or is it the camel’s nose under the tent?

Its predecessor, the original Posse Comitatus Act of 1878 was passed to prohibit the explicit use of the army and implicit use of the Air Force in civilian law enforcement. It was passed after Grant deployed the army in the election, causing resentment in the south. Lincoln had already used the Union Army in civilian matters during the Civil War and feelings ran high on the issue. The act, often misunderstood, does not prohibit use of the army, as many believe, it requires that any order to do so originate with the United States Constitution or Act of Congress.

The new bill supercedes the act of 1878 by allowing for the deployment of the military on U.S. soil and it allows for detention and arrest without a writ of Habeas Corpus. The law does not apply to U.S. citizens or at least it didn’t until the detainee provision was included.

If terrorists or drug cartels within our borders launch attacks against U.S. citizens or legal residents, this bill would allow the military to offer protection beyond what the police can provide.

The ACLU is opposed to the bill because the Constitution provides for the protection of all persons on American soil, not just citizens, and they want U.S. protections for terrorists and drug cartels. One can agree or disagree on this issue, but do not trust the furor being created by the ACLU without further scrutiny.

This is the section of the bill that people need to consider and it states it does not apply to citizens or legal residents – section 1032 (b)  but a detainee provision has been included for U.S. citizens who are al-Qaida –


    (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 section 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 interests 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.

Please read the bill in its entirety here at

Without 1032 b, it would be alarming. It does make the U.S. part of the battlefield. With homegrown terrorists becoming a national threat, I don’t know if that is wrongheaded. The bill states that it does not expand or diminish the authority of the President or Congress.

The section that has people most concerned is section 1031 and without 1032 b, it would be more of a concern to me. Could it be misused or amended improperly, absolutely. I included section 1031 in this update to the article so people could make up their own minds.

Sec. 1031 is found under “Subtitle: Detainee Matters”


(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.

(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 coun- try, 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).