Bill S-1867, NDAA, Sections 1031 & 1032 – Back in the News

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There is bipartisan support for the National Defense Authorization Act, bill S-1867, and there is bipartisan revulsion. Sections 1031 and 1032 are seen as Trojan horses by constitutional conservatives and ACLU attorneys, to name only two of the unlikely bedfellows.

The claim is that sections 1031 and 1032 will allow the military to indefinitely detain U.S. citizens without due process for vague reasons.

It is probably best if each person reads the sections in question for themselves (see below).

The protest against these sections began with Chris Anders of the ACLU. Some say he jumped the shark and some, from right, left, and Libertarian forces, joined with him in expressing serious concerns.

A lawsuit unfolded and it demands that Congress cut or reform this section of the law, which allows the U.S. military to indefinitely detain without charges anyone — including U.S. citizens — who may have “substantially supported” terrorists or their “associated forces,” without defining what those terms mean.

The key and most convincing claim made by the plaintiffs was that the language in section 1021 is so vague that it could sweep up anyone.

U.S. district judge of the Southern District of New York, Katherine Forrest, issued a preliminary injunction against the provisions in question.

According to some witnesses from the occupy group, the government could not adequately answer one important question. The government could not rule out a hypothetical political book that was deemed inappropriate according to the sections in question when asked Would these plaintiffs be subject to indefinite detention?

Judge Forrest concluded: At the hearing on this motion, the government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under [section] 1021. Plaintiffs are therefore at risk of detention, of losing their liberty, potentially for many years.

“An individual could run the risk of substantially supporting or directly supporting an associated force without even being aware that he or she was doing so. In the face of what could be indeterminate military detention, due process requires more.”

On September 12th, Judge Forrest, an Obama appointee, issued a permanent injunction.

A key question throughout these proceedings has been, however, precisely what the statute means–what and whose activities it is meant to cover. That is no small question bandied about amongst lawyers and a judge steeped in arcane questions of constitutional law; it is a question of defining an individual’s core liberties. The due process rights guaranteed by the Fifth Amendment require that an individual understand what conduct might subject him or her to criminal or civil penalties. Here, the stakes get no higher: indefinite military detention–potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever. The Constitution requires specificity–and that specificity is absent from § 1021(b)(2)…

President Obama, who said he was opposed to misuse of these provisions and who issued a signing statement in this regard (see below), is now appealing Judge Forrest’s decision. Why not send it back to congress for a re-write as Judge Forrest suggested? Even if he won’t misuse it, what about the next administration?

What is President Obama supporting really?

NDAA builds on the Patriot Act, signed into law by George Bush in 2001 which was renewed and expanded by Pres. Obama in 2004. The Act allows law enforcement agencies broad powers to search citizens’ private telephone and email communications without judicial review, search through medical, business, and financial records again without judicial review, and it eased restrictions on using foreign intelligence gathering methods within the US.

Obama signed a bill widening the definition of who can be considered an enemy of the US, to include all those who provide “material assistance” to “terrorists.”

NDAA 2012 adds to this definition anyone (non-citizens and some say citizens) who commits a belligerent act or supports hostilities in aid of enemy forces.

Reporters who might meet with terrorists and who will not divulge their sources are at particular risk and have voiced opposition. [They should remember Danny Perl and stay away in my humble opinion].

This does limit our constitution but we are living in a radically different world with grave dangers, even from homegrown terrorists. We cannot know the intel congress and the president receive so it is hard to determine how much this is needed.

We must, however, ask ourselves, To what degree are we willing to limit our constitution? and How much freedom will we give up for safety? Finally, the problem with the two sections of NDAA for me is how can due process be problematic?

Senator Lindsey Graham said the bill has a lot of flexibility, it applies to U.S. citizens, and it defines the homeland as a battlefield. He cited the Padilla case as an example. Mr. Padilla was stripped of his citizenship.

Does 1032 exclude U.S. Citizens as the politicians claim? If one examines the legaleeze, in section (4) “The Secretary of Defense (currently Leon Panetta) may, in consultation with the Secretary of State (now Hillary Clinton) and the Director of National Intelligence (currently James Clapper), waive the requirements 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.

That is a wide loophole and it allows citizens to be stripped of their rights as citizens.

Another line which opens up the field to almost anyone is the following, specifically because the word “belligerent” is not defined:

…including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”

REFERENCES:

The following are the sections under dispute:

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.
    (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 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.
    (c) Implementation Procedures-
      (1) IN GENERAL- Not later than 60 days after the date of the enactment of this Act, the President shall issue, and submit to Congress, procedures for implementing this section.
      (2) ELEMENTS- The procedures for implementing this section shall include, but not be limited to, procedures as follows:
        (A) Procedures designating the persons authorized to make determinations under subsection (a)(2) and the process by which such determinations are to be made.
        (B) Procedures providing that the requirement for military custody under subsection (a)(1) does not require the interruption of ongoing surveillance or intelligence gathering with regard to persons not already in the custody or control of the United States.
        (C) Procedures providing that a determination under subsection (a)(2) is not required to be implemented until after the conclusion of an interrogation session which is ongoing at the time the determination is made and does not require the interruption of any such ongoing session.
        (D) Procedures providing that the requirement for military custody under subsection (a)(1) does not apply when intelligence, law enforcement, or other government officials of the United States are granted access to an individual who remains in the custody of a third country.
        (E) Procedures providing that a certification of national security interests under subsection (a)(4) may be granted for the purpose of transferring a covered person from a third country if such a transfer is in the interest of the United States and could not otherwise be accomplished.
          (d) Effective Date- This section shall take effect on the date that is 60 days after the date of the enactment of this Act, and shall apply with respect to persons described in subsection (a)(2) who are taken into the custody or brought under the control of the United States on or after that effective date.

 

President Obama’s Signing Statement

Section 1021 affirms the executive branch’s authority to detain persons covered by the 2001 Authorization for Use of Military Force (AUMF) (Public Law 107-40; 50 U.S.C. 1541 note). This section breaks no new ground and is unnecessary.

The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then.

Two critical limitations in section 1021 confirm that it solely codifies established authorities.

  • First, under section 1021(d), the bill does not “limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.”
  • Second, under section 1021(e), the bill may not be construed to affect any “existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”

My Administration strongly supported the inclusion of these limitations in order to make clear beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF.

Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.

Read more in opposition to this bill from constitutional attorney, Krisanne Hall, at her website or simply google NDAA on this site.

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