Battlefield USA?…Senate NDAA, sec. 1031 and sec. 1032
I am late to the news on this one from yesterday, but want to make sure the provisions are noted and up for discussion.
Benjamin Wittes from Brookings has commentary worth reading. I have only included language used in the bill here.
Senate NDAA Thought #1 by Benjamin Wittes
The Senate’s NDAA language on detainee matters, about which I have previously written here and here, is now available. I have two additional thoughts on the Senate language–the first of which I will lay out in this post. It concerns Section 1032, the mandatory military detention provision I described–and bewailed–in my earlier post. I want to give a good faith effort in this post to imagine how this provision, if enacted, would function in practice. I think the most likely answer is that it would be an unmitigated disaster at an operational level. But there’s a slight wrinkle. Depending on the Executive Branch’s bureaucratic response to it, there is a vague possibility that it would have almost no impact at all.
The provision reads in its entirety as follows:
SEC. 1032. REQUIRED MILITARY CUSTODY FOR MEMBERS OF AL-QAEDA AND AFFILIATED ENTITIES.
(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) in military custody as an unprivileged enemy belligerent pending disposition under the law of war.
(2) APPLICABILITY TO AL-QAEDA AND AFFILIATED ENTITIES- The requirement in paragraph (1) shall apply to any covered person under section 1031(b) who is determined to be–
(A) a member of, or part of, al-Qaeda or an affiliated entity; and
(B) a participant 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) Requirement Inapplicable to United States Citizens- The requirement to detain a person in military custody under this section does not extend to citizens of the United States.
(c) Effective Date- This section shall take effect on 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 date.
The “dispositions under the laws of war” laid out in Section 1031(c) include:
(1) Long-term detention under the law of war without trial until the end of hostilities against the nations, organizations, and persons subject to 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.
i assume there are no comments to this post because we are all afraid of being put on the list for “long term detention without trial.”
and for those who missed it.. now you can be “determined to be..” without a trial.
but if “determining” is too much trouble, they can waive that by submitting, in writing of course, a certification that a waiver is in the national security interest..”
Of course we are the good guys, so we would never abuse such power.
Ok, go and read the bill. Sec. 1031 and Sec 1032 are the parts everyone is up in arms about. But Sec. 1032(b) 1-2 make it very clear that the detention under military law does not apply to U.S. Citizens nor to legal aliens. So where on Earth is this issue coming from? The law does not declare the U.S. a battlefield, nor does it give the military the right to detain U.S. citizens at will. Sec 1031 states very plainly that this only applies to people who have planned, engaged in, aided terrorist attacks agains the U.S. or are members or supporters of Al-Qaeda. That’s a pretty narrow definition.
In looking at the above quoted text from the bill, I find it odd that the person left quotes paragraphs a and c, but leaves out b. Paragraph b is where the limitations are put on the enforcement. This becomes really odd since the author states that he is going to post the section in its entirety. Clearly they did not. They also left off paragraph d.
Well Adam, here is the specific language of 1031(d) defining application to US citizens and legal aliens:
(d) Constitutional Limitation on Applicability to United States Persons- The authority to detain a person under this section does not extend to the detention of citizens or lawful resident aliens 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.
My emphasis added. That last phrase is disturbing. It implies that if I go to England or Canada, just to pick two possibilities, and I hang out with a few people that have some tenuous connection to an entity that some US government functionary has determined to be unfriendly to the US or too friendly to Muslims I could possibly fall under the purview of this draconian law.
Awlaki was American but I’m not sad that he’s been killed-although who knows, he may have been missed or missidentified so may still be alive scary enough! However I feel the “waiver for national security” is disturbing-as in to me it sounds like this waiver can overrule 1031b(does not extend to citizens and legal aliens)!
I don’t see a blatant posse comitatis violation in the wording, however the wording murky at best regarding citizens! Hey even if it was clear and straight forward that in no circumstances would US citizens be held without due process, Commander n cheif or DHS or whatever entity probably could get away with targeting citizens illegally because we no longer have checks and balances! Proof of this is the war in Libya was not challenged by congress for 9 months or at all even though boner said he would! So all Americans should be warned that anything is possible if everyone turns a bline eye and all branches of govt continue to wipe their asses with the constitution!
You are copying a pasting things to make it look bad. No where does it say “citizens or lawful resident aliens 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.”
You added the word “CITZENS” to the second paragraph of the document. It clearly states the citizens are protected. What you are saying applies to LEGAL ALIENS only. Stop making false statements to scare people.
What is most shocking is this:
(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.
What this basically means, is that if it is in “the interest of National Security”, an American citizen can be detained indefinitely.
Many people in the forum who do not grasp the nuances of the English language are misinterpreting this part.
(b) Requirement Inapplicable to United States Citizens- The requirement to detain a person in military custody under this section does not extend to citizens of the United States.
All this means is that the military isn’t REQUIRED to detain you. Doesn’t have to. But can.
On the topic of nuances of the English language, I agree with the “not REQUIRED” to detain you…but they can.
Further, for those believing that detention should not be an issue if we are American citizens in the country, let’s put practical application to the words by considering this scenario as an example:
Imagine a civil war (not inconceivable) and (correctly or not) you have been “determined to be” (no specifics on who makes the determination, or what proof is required) on the side rising up against government. You would then fall under Sec. 1032 (a)(2)(B). Note that this section is an ‘and’ section which follows Sec. 1032 (a)(2)(A). If you have been “determined to be” a “participant”, it is not a stretch “determine” that you are also an “affiliated entity”, for the purposes of detaining you. The military is then required (unless waived for national security under paragraph (4)) to hold you under military custody.
One would hope that our government is not writing laws which would allow them to round up good citizens just because they appear to fit a profile. One would hope that it is merely some unclear language in the bill that allows various unintended interpretations. However, the language is not specific enough to rule out these various interpretations, so the scenarios are conceivable. I would like to see the language cleaned up such that it removes the ambiguity. If it is intended to round up American citizens, it should so state. If not, it should be crystal clear. Either way, we’ll know where we stand.
Regarding the paragraph (4) Waiver for National Security, it is interesting to note that the Secretary of Defense need only submit a certification in writing to Congress. There is no requirement for Congressional approval. Once the certification has been submitted, the requirement is waived.