US National Defense Authorisation Act 2012
The US National Defense Authorisation Act is passed each year to specify the budget and expenditures of the Department of Defense. However the Act for 2012 is being claimed to include provisions that allow for the indefinite detention of US citizens without trial.
While the mainstream media is not covering it, a little bit of searching will turn up multiple references to the 2012 National Defense Authorisation Act that has just recently passed through the Senate. Sites including ACLU.org, VeteransToday.com and DailyPaul.com have all posted articles about provisions in section 1031 and 1032 relating to the detaining of persons believed to be involved in terrorism. On Nov 29 a proposed amendment to the act that would have replaced those provisions with a requirement for an orderly congressional review of detention power failed to be passed by Senate, so now it appears likely that only a threatened veto by the White House will stop this Act being passed in its current form.
Whether the Act does actually allow the detention of US citizens seems to be a matter for debate, with Carl Levins’ office releasing a summary of the Act making particular reference to the section on applicability to citizens of the United States. However if you take a good look at the wording of both sections 1031 and 1032, and you are able to decipher the legalese, it is possible to see how these provisions can be interpreted in very different ways from what the average person may read at first glance, which is why the conspiracy theorists are worried.
Here is the actual wording of Sections 1031 and 1032 from the Act that passed Senate :
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:
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- (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.
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- (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:
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- (1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.
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- (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)).
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- (3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.
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- (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-
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- (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.
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- (2) COVERED PERSONS- The requirement in paragraph (1) shall apply to any person whose detention is authorized under section 1031 who is determined–
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- (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
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- (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.
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- (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.
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- (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-
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- (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.
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- (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-
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- (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.
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- (2) ELEMENTS- The procedures for implementing this section shall include, but not be limited to, procedures as follows:
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- (A) Procedures designating the persons authorized to make determinations under subsection (a)(2) and the process by which such determinations are to be made.
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- (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.
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- (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.
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- (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.
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- (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.
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- (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.
Section 1031
Firstly, take a read of section 1031, which basically spells out the authority of the military (despite that this has been done before in Public Law 107-40) to “detain covered persons pursuant to the authorization for use of military force“. Or, in laymans terms, “who can be busted by the miltary”. Now examine subsection (b) that defines who is covered by this and you’ll see they make the pretty standard refence to those involved in terrorism, members of Al-Queda or the Taliban, and “associated forces”. Well ok, that’s fair enough I suppose…. but what’s this subsection (f) all the way down the bottom “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).“. Ummm, does that basically mean “the Secretary of Defense gets to make the law on who is regarded as a Terrorist?” Doesn’t that almost say he could even walk into Congress and declare any organisation, even the Red Cross or the UN, as “covered persons”? Of course that would never happen, but does not this section of the Act allow for such a thing? And if is broad enough to do that, surely using it to target some small local group or individual is hardly much of a stretch for the imagination.
However, subsection (e) does appear to mitigate this somewhat however by saying that it does not “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“, thus implying US citizens and legal visitors are not subject to these detention provisions and that they will not apply within the borders of the US. Thus comments from the likes of Sen. Lindsey Graham (R-S.C.) that this Act would make the United States homeland the “battlefield” might just be more alarmist than necessary. Maybe. What are the existing laws and authorities relating to the detention of US citizens and “lawful resident aliens”, and are they supersceded by other public or military laws in times of war? I’m no legal expert, but that seems awfully vague when it is covering whether US citizens can be arrested and detained indefinately without trial, as specified in subsection (c).
Section 1032
Section 1032, which madates military custody for those who fit the provisos of Section 1031 and who also run a terrorist group (subsection a.2.A) or are involved in an attack by a terrorist group (subsection a.2.B). Mind you, subsection (a.4) then grants the Secretary of Defense the ability to waive those requirements “if the Secretary submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.” So as long as he does that, anyone presumably can be placed in military custody under this Section of the Act.
However subsection (b.1) does state that “The requirement to detain a person in military custody under this section does not extend to citizens of the United States.” So this Section cannot be used to detain US citizens, (although you’ll notice subsection (b.2) does not entirely exclude legal resident aliens with its constituional exception), but of course you may already have been detained under some nuance of Section 1031…..
Section 1033
Yes, there’s more if you wish to go and check it out. Section 1033 relates to who can be transferred FROM Guantanamo Bay, and puts a whole bunch of restrictions on how, who and where. Basically, if your indefinately incarcerated in Guantanamo, you better hope someone is working on a way to get you home, because the US certainly won’t be doing anything to help. Mind you, if you’ve got to that point it means you’ve fallen prey to one of the previous two Sections of the Act and pretty much aren’t likely to be going anywhere.
So that is my very cursory look at the National Defense Authorisation Act for Fiscal Year 2012. Many of you will no doubt find a lot more salient points regarding the pros and cons of the above sections of the Act. Whether it is actually going to be the constitutional nightmare that so many seem to fear is very obviously open to debate and not at all clear, and many are fearing what sort of trend this heralds when such important potential changes to civil rights are hidden away in an annual defense appropriations bill. Although many would say this sort of thing has been happening for almost the entire 48 year history of this Act, but we all trust our politicians never to do the wrong thing by the people they represent, right?