Okay, I’ve read more on the scary provisions of the National Defense Authorization Act (NDAA) for 2012 that I blogged about recently. My friend, let me be very up-front about this: it doesn’t matter what your political persuasion is, if you’re a US citizen or live in the US in a legal status, the NDAA this year is something you should be very, very concerned about.
Why? Because there are two provisions in it that stand to really undermine some of our most basic constitutional freedoms, and the thing is very close now to becoming law. I don’t normally go off the deep end about political issues (in fact, I almost never address them publicly), but this is very important.
The reason I’m writing a follow-up post on this is because someone on Google+ pointed out to me that US citizens were exempt from the provisions of the bill that are of concern, the ones that people are afraid will give the government extremely wide latitude to toss people into military prisons indefinitely, and I’ve seen a small number of other such comments on various blogs.
So I went back in and looked at the text of the bill in more detail, hoping that these folks were indeed correct, and that the whole NDAA thing was much ado about nothing.
Unfortunately, I’m more concerned now than I was before, especially since it now looks like President Obama is going back on his original threat to veto the bill, and is now saying he’ll sign it into law. Oy.
So, what’s the big deal? Why should you be concerned?
There are two provisions in the NDAA, which is a huge pile of individual bits of law that, mostly, provide funding and other authorizations for the Department of Defense, that are of concern:
- 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”
- 1032 “REQUIREMENT FOR MILITARY CUSTODY”.
1031 essentially authorizes the military to indefinitely detain people suspected of being involved in some way, shape or form with terrorism, with very vague language that is in itself rather troubling. There is also nothing specifically prohibiting the military from operating on US territory, which leaves that little loophole wide open.
1032 spells out whom the military is required to detain under the provisions of 1031.
The question that everyone is asking is, do these provisions apply to US citizens and lawful resident aliens in U.S. territory, and just how well-defined are the powers that we, the people, are about to hand over to Uncle Sam?
I’ve attached the text from both provisions at the bottom of this post so you can read them for yourself, but here’s my take on them in brief:
1. While both provisions mention US citizens and lawful resident aliens, neither specifically exempts them from the indefinite military custody provisions. The bottom line here is that if the government decides that you’re up to no good based on the very loose provisions of 1031, you could be detained by the military indefinitely, on no more than suspicion, and without due process. Welcome to Guantanamo.
Here are the relevant passages:
Section 1031 (Authorization for the military to detain people)
1031(b), Covered Persons: This section covers who the military could go after, and is extremely loose in 1031(b)(2). However, there is no reference at all here to US citizens or lawful resident aliens, exempt or otherwise.
1031(e): Some people are construing the section of 1031 that I’ve highlighted below to mean that US citizens are exempt, but that’s not what it says at all. It only says that it doesn’t change any existing laws or authorities. 1031 is a new law that’s giving the government additional, new authorities.
As I mentioned earlier, there is also nothing limiting or excluding the area of operations for military units operating under 1031 authorities. That leaves the game open for operations on US territory, which proponents of the provisions have made no bones about.
1031(e): Nothing in this section shall be construed to affect 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.
Section 1032 (Who the military is required to detain)
Section 1032(b) “APPLICABILITY TO UNITED STATES CITIZENS AND LAWFUL RESIDENT ALIENS” sounds promising, but let’s look a bit more closely:
(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.
Here’s the trick on this one: 1032 says only that there is no requirement to detain a US citizen or lawful alien under the provisions of 1031. It does not say they’re exempt. There is a huge difference.
More frightening to me is that, since detaining a US citizen/legal alien is neither required nor exempt, it seems like it would then fall into the discretionary category. So if you were a US citizen and the government thought you fell under the covered persons category of 1031, they wouldn’t be required to detain you. But they could, since there is no text to say they cannot, and should instead turn over their leads to civil authorities like the FBI.
My friend, these are things we can’t just take for granted. I’ve attached the entire text of both provisions below. Take some time to read them and decide for yourself. This thing is now in the House of Representatives – contact your representative and let them know what you think.
Subtitle D—Detainee Matters
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 11125 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) AUTHORITIES.—Nothing in this section shall be construed to affect 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.
(f) 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.
This actually sounds very eeriely like the Internal Security Act in Malaysia we’ve been trying to repeal. It will (apparently) be repealed in March 2012, to be replaced by two new anti-terrorism laws of which *no one knows* what they will look like yet.
If the NDAA goes through in USA… whatever progress we’ve been making here might just all go down the drain.
I really wish people would remember stuff like this around election time.
As Franklin said, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”
Oh, and to answer your question, I would not like to be in prison of any sort.
Yes, when the first detainments of US citizens on American soil under these new provisions, we can all pretend to be shocked, right? Oy…
This law is about the right to detain enemy combatants and terrorists. Its not about domestic criminals or the average criminal ,its to keep the BAD GUYS (remember, the ones who flew big airplanes into the World Trade Center?) from getting out on bail and fleeing prosecution. Dont forget, if our stupid Attorney General had his way he’d try these idiots in civil courts and give them all the “rights” as a citizen. I say its good for America! thats what I say.
You keep telling yourself that, Mr. Hughey. Because governments have never taken advantage of its citizens through obtuse laws that can be construed to meet its needs.
And as far as trying terrorists in civil courts, at least they would actually get tried, so the innocents held at Guantanamo could be separated from the monsters. Nobody is showing any interest in trying anyone being held.
I find it very strange that the people who want to strip every right from individuals (including Americans) want to hand over excessive rights to the government. You might be willing to sacrifice your civil liberties, but don’t touch mine, thank you very much.
“In Germany, they came first for the Communists, And I didn’t speak up because I wasn’t a Communist;
And then they came for the trade unionists, And I didn’t speak up because I wasn’t a trade unionist;
And then they came for the Jews, And I didn’t speak up because I wasn’t a Jew;
And then . . . they came for me . . . And by that time there was no one left to speak up.”
Martin Niemöller (14 January 1892 – 6 March 1984)
“I began my political responsibility as an ultra-conservative. I wanted the Kaiser to come back; and now I am a revolutionary. I really mean that. If I live to be a hundred I shall maybe be an anarchist, for an anarchist wants to do without all government.” Niemoller
The Washington Times editorial throws a bit of cold water on the idea: http://www.washingtontimes.com/news/2012/jan/3/obama-and-dictatorship/
Short version: the Bill of Rights trumps any mischief that may come from the Legislative and Executive branches. While essentially correct, it would be of little comfort while waiting out the judicial process and working on your tan in Club Gitmo. It took what, 8 years for the free-speech limitations of McCain/Feingold to be overturned? That’s a lot of time to spend in shackles and an orange jumpsuit.
The gov’t's worst-case-scenario is probably along the lines of “24″: bad guys are about to detonate a nuke in a US city. A citizen is ID’ed as part of the plot. You’d want to grab that person using whatever means are best suited, which might be a smash-and-grab by SEALS or something. In any case, something that extreme can easily be argued as way more than a law enforcement problem.
The average Joe’s worst-case-scenario: you’re an active writer/blogger/twitterer and get on the wrong side of a paranoid and desperate executive branch. Just enough unsavory individuals start following your work to allow a reasonable guilt by association. Some of the said unsavory individuals may even be, shall we say, “encouraged” by said paranoid executive branch.
I know it sounds beyond the realm of the reasonable…but so does Fast & Furious.