S. 1867 the Department of Defense Authorization Act: It's More Convoluted Than You Think

by Scott Creighton

Indefinitely detaining terror suspects in military facilities and prosecuting them via military tribunals: Let’s make one thing perfectly clear – according to the letter of the law and the language of S. 1867, this does not apply to US citizens

Understanding the Bill itself and the Debate that is taking shape -

Part A -  the bill

Right now there is a contentious debate quietly taking place in the halls of congress behind mahogany doors, armed guards, and the all too common concrete barricades erected after 9/11. The corporate media is doing their part by completely ignoring what is taking place regardless of the fact that the proposed legislation will have unprecedented constitutional implications no matter how it turns out.

At the heart of this debate lies several sections of  Senate Bill 1867, the Defense Authorization Act for Fiscal Year 2012 (pdf) as proposed by Carl Levin (D. Mich). The sections under debate: namely Section 1031, 1032, 1033, and a few subsequent amendments which have been added in light of an ongoing internal debate between congress and the executive branch (Obama administration).

(Some dissident news sites are using the earlier version of the bill, S. 1235,  to drum up more fear mongering and thus page views and personal revenue for themselves. The earlier version of the bill is from June of this year and there have been many revisions since then. The link I provide above is to the current version of the bill (dated Nov. 14th and read into the senate record that day) and the link to the amendments are also the current amendments being discussed today on the floor of the senate. These same dissident sites also cite a letter from the ACLU to bolster credibility their credibility. However, that letter from the ACLU is dated July 1st, 2011 and many of the main issues they bring up have been addressed already.)

At issue in these sections is:

• the determination that the United States is part of the battlefield in the ongoing (albeit fake) Global War on Terror
• mandatory detention of terrorist suspects by the military
• the process by which detainees like those at Gitmo are transferred to other countries (renditioned for purposes of interrogation, ect.)

This one is a hard one to wrap your head around. With the players taking what would appear to be opposite positions on this bill that one would normally think they would take and what, at least on the surface, appears to be an Obama administration threat to veto the bill because it would limit their ability to effectively prosecute the Global War on Terror, we have to take a very close look at this legislation before we jump out and follow fear-mongering sites and start robo calling our senators.

With that in mind, let’s take a look at the actual language of the legislation:

Senate Bill 1867, the Defense Authorization Act for Fiscal Year 2012  page 361 (emphasis added)

3 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.

What does this section do? According to some, this section forces the United States to detain suspected terrorists, here in the United States, in military detention facilities pursuant to the “law of war”.  Many of these websites out there claim that this means that US citizens, under this act, can and will be detained by the military, in direct contradiction to the Bill of Rights and Posse Comitatus. Though this may have been an accurate reading of S. 1235, the earlier version of this bill, I can safely say, it is not entirely accurate as the bill stands now.

Let’s read a little further.  Notice the part above which states “Except as provided in paragraph (4)”? Let’s read paragraph (4) as it is being submitted (and not the July version):

Senate Bill 1867, the Defense Authorization Act for Fiscal Year 2012  page 362 (emphasis added)

(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.
15 (b) APPLICABILITY TO UNITED STATES CITIZENS
16 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.

So, according to the letter of the law and the language of it, this does not apply to US citizens.That is an important distinction yet it is still not altogether reassuring since it may only be a matter of time before that language is struck from the bill or future legislation amends it to include US citizens.

What is unclear is whether or not globalist Hillary Clinton, in consultation with Leon Penetta, former head of the criminal Central Intelligence Agency, can receive a waiver of this section of the bill automatically by simply requesting it. The waiver may be to force a foreign terror suspect, caught on US soil, to be prosecuted and detained in the civilian system as opposed to using her ability to wave this section thus allowing civilians to be detained and tried in military tribunals. This is part of what I call the convoluted aspect of this legislation.

Section 1033 is also a hot topic for discussion. At issue there is the subject of what is commonly referred to as “extraordinary rendition” where detained suspects are sent to other nations to be tortured so that our hands are effectively cleansed of the criminal behavior. Section 1033 looks to force the Obama administration to report to congress their intentions to rendition a prisoner 30 days prior to that transfer.

Senate Bill 1867, the Defense Authorization Act for Fiscal Year 2012  page 365 (emphasis added)

SEC. 1033. REQUIREMENTS FOR CERTIFICATIONS RELATING TO THE TRANSFER OF DETAINEES AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA, TO FOREIGN COUNTRIES AND OTHER FOREIGN ENTITIES.

6 (a) CERTIFICATION REQUIRED PRIOR TO TRANSFER.—
8 (1) IN GENERAL.—Except as provided in paragraph (2) and subsection (d), the Secretary of Defense may not use any amounts authorized to be appropriated or otherwise available to the Department of Defense for fiscal year 2012 to transfer any individual detained at Guantanamo to the custody or control of the individual’s country of origin, any other foreign country, or any other foreign entity unless the Secretary submits to Congress the certification described in subsection (b) not later than 30 days before the transfer of the individual.

Again, there are several loopholes written into this section and the most glaring is that it restricts the use of funds, not the actual transfer of the prisoner. If Leon Panetta were to tap some of his secret CIA fund resources now that the Pentagon is simply a branch of the CIA, then all’s well I suppose. But on the surface this means that tax-payer dollars won’t be spent on massively overpriced contracts to rendition detainees to “foreign entities” to torture them.

That’s progress, huh?

Part B – the debate

On capital hill they have been going back and forth with the administration since June over this bill. Carl Levin recently submitted to congress a letter in which he reiterates the president and his adviser’s position on this legislation. It’s well known that the president and his cronies have had problems with this bill and these provisions in particular. What’s at stake to them is the continuation of the broken system as is.

A Fox News host recently explained to his viewers that the FBI’s 17 supposed successes at thwarting terrorist plots in the US since 9/11 were completely made up by the FBI. They were planned and staged by the FBI in what could only be described as self-serving entrapment operations. I mention the Fox News host who talked about this only because up until recently the right-wing part of the country refused to believe that there was anything made-up about the ongoing War on Terror. Several people, including myself, have been point that out for years and in many cases as the “terrorist” plots themselves were developing. Take for instance the latest thwarted plot created by the NYPD Intelligence division.

I mention these things only because it would appear that the Obama administration worries that if Section 1032 were to be implemented as it was first written, it would remove from the equation the FBI investigations and agencies like Bloomberg’s “Intelligence division”. It would also mean that after “ongoing” investigations were brought to a halt via an arrest, the suspect would then be handed over to the military, and thus the people who wrote the plot themselves would no longer have control of the suspect, who might be inclined to tell the military what really happened.  Obama and his senior advisers (ie- Clinton) are apparently strongly opposed to that.

“The Administration strongly objects to the military custody provision of section 1032, which would appear to mandate military custody for a certain class of terrorism suspects. This unnecessary, untested, and legally controversial restriction of the President’s authority to defend the Nation from terrorist threats would tie the hands of our intelligence and law enforcement professionals. Moreover, applying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets. We have spent ten years since September 11, 2001, breaking down the walls between intelligence, military, and law enforcement professionals; Congress should not now rebuild those walls and unnecessarily make the job of preventing terrorist attacks more difficult. Specifically, the provision would limit the flexibility of our national security professionals to choose, based on the evidence and the facts and circumstances of each case, which tool for incapacitating dangerous terrorists best serves our national security interests. The waiver provision fails to address these concerns, particularly in time-sensitive operations in which law enforcement personnel have traditionally played the leading role. These problems are all the more acute because the section defines the category of individuals who would be subject to mandatory military custody by substituting new and untested legislative criteria for the criteria the Executive and Judicial branches are currently using for detention under the AUMF in both habeas litigation and military operations. Such confusion threatens our ability to act swiftly and decisively to capture, detain, and interrogate terrorism suspects, and could disrupt the collection of vital intelligence about threats to the American people.
Rather than fix the fundamental defects of section 1032 or remove it entirely, as the Administration and the chairs of several congressional committees with jurisdiction over these matters have advocated…” Carl Levin

Levin goes on to explain that anything considered limiting to the president in the conducting of his Global War on Terror fraud will be vetoed by the president. (emphasis included by Levin)

“Any bill that challenges or constrains the President’s critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation would prompt the President’s senior advisers to recommend a veto.” Carl Levin

The debate goes on and currently there are several amendments to the bill that are being bandied about in the senate.

Part C – conclusion

It should be difficult for any rational thinking American at this point to flat out reject any bill that the president claims would limit his ability to conduct the fraudulent Global War on Terror without serious scrutiny. Take note that the Obama administration is not opposed to these contentious sections of the bill on the grounds that they infringe on the personal freedoms of the American people, but rather he doesn’t like them because they limit the powers of the unconstitutional secret police state that has been carefully crafted since 9/11. That’s a big difference and an important one. It’s no wonder that this serious issue is getting next to no face time on the so-called “progressive” news outlets across the country.

At the same time, it’s easy to see where this could be going.

Over the years I have warned readers via this website and other postings that neoliberalism is coming to America. I think most people understand that now having seen the beginning stages of it after the economic hit-men at Goldman Sachs and the Federal Reserve decimated our economy so they could reshape it into their fascist/corporatist model.

One thing that I have tried repeatedly to explain to people is that the evils we inflict on others will come home to roost here in America. To that end, simply understand that in each and every nation that is neoliberalized, by force or by stealth, what follows is always the same; dissenters on the left are always declared enemies of the state and they are always rounded up and arrested in order to remove from the targeted population a true opposition viewpoint that will, in time, become more and more influential as the general population comes to understand the true nature of what is happening to their country. This is a requirement and a mainstay of the CIA backed neoliberal dictatorships over the course of the last 60 years or so from the Shah of Iran’s SAVAK to the Argentinian Death Squads, to the wholesale atrocities happening in India to this day, this is what always happens. Always.

It will happen here just like it happened here back in the early 1900s.

Any bill that brings us closer to that unfortunate destiny should and must be stopped. No one wants to see military strike teams kicking in doors down the street at 3 am in the morning like they do in Iraq and Afghanistan.

But I am not exactly sure that this bill provides for that. What I am sure of is that the Obama administration desires more freedoms at this point in their efforts to conduct their fraudulent war. Forcing another revision of this bill may in fact provide the administration with the opportunity to re-write those sections giving them the ability to detain citizens and foreign nationals alike and that would certainly be no victory on our part as that we would become beggars to our own demise.

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