by Scott Creighton
“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.” section 1031 NDAA 2012 page 360
“The requirement to detain a person in military custody under this section does not extend to citizens of the United States.” section 1032 NDAA 2012 page 362
“…modifying or expanding the authority of the Executive Branch to carry out detention and prosecution of covered persons.” Udall amendment replacing above language
All across the “internets” liberal and libertarians alike are screaming about sections 1031 and 1032 of the National Defense Authorization Act of 2012 (pdf). They are breathlessly claiming they it will give the military the ability to arrest and indefinitely detain U.S. citizens under the law of war clause. These claims, this internet panic, is based ENTIRELY on an article from the ACLU’s Chris Anders which wrongly makes the claim and then strangely suggests that we all get behind Mark Udall’s proposed amendment to the bill.
In Mr. Anders’ article, he makes the mistaken claim right in the title; “Senators Demand the Military Lock Up American Citizens in a “Battlefield” They Define as Being Right Outside Your Window“
First thing to notice about Mr. Anders’ article is that he makes absolutely no attempt to link the readers to the actual text of the bill which he bases his panic inducing headline. Instead what he does is repeatedly link the reader to his “oppose section 1031 and 1032 of the NDAA” action page. I count 9 links to his action page which are cleverly disguised as “Udall Amendment” and other things that would make the reader think would be links to things which support his argument, but they don’t. Nowhere in the article does Mr. Anders supply a link to the Udall amendment which he expects you to support, sight unseen I suppose.
Why wouldn’t Mr. Anders of the ACLU want to link his readers to the actual text of S. 1867? Why wouldn’t he simply copy and past section 1032, the section which supposedly gives the military the right to arrest and detain U.S. citizens, so that his readers could read the actual text of the bill and make an informed decision for themselves? Why doesn’t he provide a link to the Udall amendment? Judge for yourselves….
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.
(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.
That is why Mr. Anders of the ACLU does NOT provide a single link to the actual text of the bill, because it clearly states that section 1032 does NOT extend to citizens of the United States. It could not be clearer in that regard but apparently Mr. Anders either can’t read or is deliberately misleading a large number of people about this section of the bill.
Why would Mr. Anders do that?
As I pointed out yesterday and as Carl Levin wrote about in his letter to congress a week ago, the president and his senior advisers will VETO the bill as written because he thinks it will unduly inhibit his ability to fight the fraudulent “Global War on Terror”
Turns out that is exactly the argument that Mark Udell makes when he talks about replacing section 1032 with his amendment, the amendment that Mr. Anders seems to want us to call our senators in support of.
“Mr. President, I filed an amendment, 1107, that would take a look at what is proposed in the NDAA. Now, we have a solemn obligation, Mr. President, to pass a National Defense Authorization Act, but we also have a solemn obligation to make sure that those who are fighting the war on terror have the best, most flexible, most powerful tools possible. And I have to say again – and I will say it more than two times in my remarks – that I’m worried that these changes that we’re about to push through would actually hurt our national security…
… these provisions disrupt the executive branch’s capacity to enforce the law and impose unwise and unwarranted restrictions on our ability to aggressively combat international terrorism. In so doing, they inject legal uncertainty and ambiguity that may only complicate the military’s operations and practices.
Now, Mr. President, I’m not the only one who has serious concerns. The Secretary of Defense has urged us to oppose these new provisions, both the chairman of the intelligence and judiciary committee strongly oppose them, and the president’s team is recommending a veto. These are people whose opinions should be carefully considered before we put these new proposals into our legal framework. In the statement of administration policy, the White House states – quote – “we have spent 10 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.“
Those are striking words, Mr. President, that should give us all pause as we face – it seems to me – a bit of a rush to submit these untested and legally controversial restrictions on our ability to prosecute terrorists. Mr. President, I would ask unanimous consent to place the entire statement of administration policy in the record.” Mark Udall, floor of the Senate
So what is this Udall amendment that the ACLU and apparently President Obama and ex-CIA chief Leon Pannetta want us to accept? What does it do?
Quite simply, the Udall amendment will remove the wording of section 1032 which clearly states that it does not apply to U.S. citizens, and in it’s place substitute language which calls for the head of the Department of Homeland Security, Hillary Clinton, Leon Pannetta, and Eric Holder to get together and craft legislation, on their own, to submit back to congress which effectively does the same thing that section 1032 does, but seemingly may or may not actually apply to U.S. citizens.
That’s right… Udall’s proposal suggests letting globalist Hillary Clinton and her puppets rewrite something akin to the John Yoo torture memos. As written, section 1031 specifically states that it does NOT extend the powers of the executive branch under current interpretations of the war powers act whereas Mr. Udall’s proposed amendment clearly DOES provide for that end result.
That’s why Mr. Anders doesn’t supply a link to the text of that legislation either.
(a) In General.–Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall, in consultation with appropriate officials in the Executive Office of the President, the Director of National Intelligence, the Secretary of State, the Secretary of Homeland Security, and the Attorney General, submit to the appropriate committees of Congress a report setting forth the following:
(1) A statement of the position of the Executive Branch on the appropriate role for the Armed Forces of the United States in the detention and prosecution of covered persons (as defined in subsection (b)).
(2) A statement and assessment of the legal authority asserted by the Executive Branch for such detention and prosecution.
(3) A statement of any existing deficiencies or anticipated deficiencies in the legal authority for such detention and prosecution.
(c) Congressional Action.–Each of the appropriate committees of Congress may, not later than 45 days after receipt of the report required by subsection (a), hold a hearing on the report, and shall, within 45 days of such hearings, report to Congress legislation, if such committee determines legislation is appropriate and advisable, modifying or expanding the authority of the Executive Branch to carry out detention and prosecution of covered persons.
The Udall amendment which we are being asked to support by Mr. Anders of the ACLU would actually provide the opportunity for the expansion of presidential authority to perhaps include U.S. citizens being detained and arrested by the military. It calls for a group of globalist puppets to put together a proposal and to show the legal authority by which they base their claim for expanded powers. This is why it will be supported by the Obama administration.
It should not be supported by us.
Like this:
Filed under: Globalization, Neoliberalizing America, S. 1867, Scott Creighton, section 1034 2012 NDAA
Well, given all the time you have had to finish the report, I can only conclude that you have no intention of doing so. Scott, I am really disappointed in you. You have wasted 8 months of my time
Please return the $200. I believe you know my address.
AJ
again AJ, you did not provide 200 for a report, that would have been dishonest. You provided me help at a bad time to retrieve my computer from a pawn shop so that I could work on the review of Nucor’s letter, which I did. Regardless, I will certainly return the money and I thank you again for that help back then.
As to the time that you assume that I had to finish the review, like I have told you many times, I just finished the build and now the strike of the project that I was working on. Actually, it turned into two projects for the same company, which I have just this past week stopped working for. The time commitment was rather extensive as these projects usually are. The timing I admit was bad for what I was doing to HELP you out but as you know (and others can certainly understand) I desperately needed the work. I made all of this clear to you in numerous phone calls and emails over the past few months.
As to what you consider a waste of your time; I don’t see it that way at all. We spent many hours chatting and talking about all kinds of things including your situation with LFN concerns. I suggested a number of things that you could do that would help your situation not the least of which was attempting to bring in organizations like Nader’s in an effort to run the expensive tests you would need to support your position. I still recommend that, by the way.
In the end AJ I did a lot of research into this issue for you, as you well know and as we have discussed many times in the past. I have worked on your project over the past few months a considerable amount and have prepared an outline and the beginnings of my review (having to rewrite several sections based on the unsuccessful attempt at my own experiment based on your recordings).
You could have easily handled this last communication of yours via a phone call or an email so I have to assume that your intention is to embarrass me by leaving this as a public comment on an article that has nothing to do with this. That is tacky and petty considering our history and the efforts I have put forth to help your situation.
I will leave your comment as tacky and petty does not violate the rules of conduct for comments on this blog, but since your sole purpose contacting me in this way was to misrepresent the efforts I have made and the help you provided in the past to retrieve my computer, I have decided you are banned from leaving comments on this site. Please direct future communications through either of the mediums that I mentioned above… I assume you still have both of my phone numbers.
As per your request, of course I will return the money to you. I always considered it a loan in the first place, not payment for the review of Nucor’s response to your claim. I should have done so earlier, to my shame.
I will also continue to work on the Nucor review. I will forward it to both you and Nucor at the same time. It is probably important for a unbiased review that it is clear that it was not paid for – which would certainly imply that my conclusions were also paid for, which of course they were not. You can use it or not use it as you see fit. I doubt that it will change much as that I am not an expert on LFN but if it helps in the long run, I am glad.
Sorry it ended up this way. You should have emailed or simply called me. I would not have expected something like this from you. Is what it is I suppose.
Interesting. And speaking of misinformation, I see you also failed to accurately quote the text of Section 1032. Very telling, Mr. Creighton.
Not only did I accurately quote section 1032, I provided a link to it, which of course, Mr. Anders never did so the reader could read it for themselves.
I find this blog enlightening, but this comment tacky and distasteful and of no value to me or any other reader. Your personal business has no place here. You would have been better served to simply delete his comment and ban him if you so desired than to air your laundry here. Keep your focus please
You’re right, I should have deleted the comment that I was responding to, but I have a policy whereas I don’t delete comments unless they are calling for violence towards someone other than me or a section of the population or advertising spam. But in looking back on it, I should have just deleted the comment, it is an unnecessary distraction.
You left out a crucial clause:
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.
(from Section 1031 (d) http://thomas.loc.gov/cgi-bin/query/F?c112:1:./temp/~c112mQPATQ:e462105:)
This could be used, in other words, to apply to the actions that a person took or was claimed to have taken while on vacation and, in something of a stretch (which let us acknowledge that lawyers are very good at), to situations in which an American, on American soil, engaged in dialogue or exchange with a person in another country, whether by e-mail, Skype, or telephone. The overseas conduct with which the American was affiliated could be used as rationale for detention, as outlined in the subsection above, because the clause does not have to be construed to imply that it must be on the basis of the *American’s* conduct. It is simply conduct without a modifier — it could apply to the American, affiliates, strangers, or other.
One, you added US citizens to that where it did not apply. That section only applied to lawful resident aliens. In other words, those here on work visas or green cards. It does NOT apply to US Citizens. Read it again.
)” Extension to United States Citizens and Lawful Resident Aliens.–The authority of the Armed Forces of the United States to detain covered persons under this section extends to citizens of the United States and lawful resident aliens of the United States, except to the extent prohibited by the Constitution of the United States.”
you read it again, Jonny E. and Udall has submitted an amendment that will lawfully get around our Constitution.
SEC. 1032. REQUIREMENT FOR MILITARY CUSTODY.
(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.
—-Actually, you both quoted this subsection wrong. It clearly says, the “REQUIREMENT,” not the “authority. That requirement refers to the requirement made under section 1032 (a), paragraph 1 that REQUIRES
“the Armed Forces of the United States [to] 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.”
—-Now, back to my original point, subsection b is clarifying that the REQUIREMENT is waived; however the authority is still there. As Caucus. Spencer writes: Section 1032 “would just ‘let’ the government detain a citizen in military custody, not ‘force’ it to do that.”
http://thomas.loc.gov/cgi-bin/query/F?c112:2:./temp/~c112pdV26a:e548990:
Here’s the link for that section if you want to read it for yourself.
Hi there — I don’t agree with a lot of your positions on this website, but I’m very interested in this issue regarding S. 1867 and why the ACLU would misrepresent the bill. Clearly the Udall amendment and the Obama veto have nothing to do with any unconstitutional violation of American civil rights, but only, as you say, with the continuation of the Justice Department jurisdiction in the War on Terror. The problem I have is in understanding the many ways the laws in one bill ma be modified or nullified by another, or interpreted to suit a given circumstance. It’s all too complex for the average citizen to follow, and much of the Homeland Security rules are secret. Anyway, thanks for pointing out what you did here.
VC
As you can clearly see in the text copy pasted from the bill there is a waiver that will allow anyone to be detained shameful but at least we see who’s side you are really on. (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.
To discuss tonight on my show on RBN at 9 pm PST.
800-313-9443
1 hour long – goes fast – talked about it last night……
Eric Shine
Host
If I can keep my eyes open until 12 midn eastern time, i would love to hear you program!
The Udall amendment replaces section 1031, not 1032 as you state here.
It is written to replace the entire subsection D which would include 1032 since it is a part of the previous 1031.
check out his other amendment, SA 1112. It makes Udall’s intentions very clear.
I can’t find links to SA 1112 anywhere, and all the links provided in your later article are dead.
They just worked for me. Maybe you are clicking on wrong words?
Dodsworth
Not an easy thing to find is it? I didn’t realize the government site would time out individual web addresses like that. Thanks for the heads up.
Google “Mark Udall amendment 1107″, that’s the other amendment, the one that the ACLU is pushing… you will find this page…
http://www.google.com/search?q=Mark+Udall+amendment+1107&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a
Then scroll down and look for…
S.AMDT.1107 – Go to hdl.loc.gov – Library of Congress
hdl.loc.gov › THOMAS Home › Bills, Resolutions
Nov 17, 2011 – S.AMDT.1107. Amends: S.1867. Sponsor: Sen Udall, Mark [CO] (submitted 11/17/2011) (proposed 11/17/2011). AMENDMENT PURPOSE
click on that link and it takes you to this page…
http://thomas.loc.gov/cgi-bin/bdquery/z?d112:sp1107:
from there click on this link…
TEXT OF AMENDMENT AS SUBMITTED: CR S7728
it takes you to this page…
http://thomas.loc.gov/cgi-bin/query/R?r112:FLD001:S07728
scroll down and click on page S7728.
That will take you to the congressional record page showing all of the amendments that Udall has filed, including the one I wrote about this morning and the one I just recently wrote about as well. If I post that link, it will time out.
I hope this helps.
I see….the ACLU conveniently only refers to Amendment 1107….Amendment 1112 is completely ignored…
you are very observant. thanks for the information.
As I read this, the exemption for US citizens only relates to being retained in military custody. Nothing keeps the military from coming to get you and then turning you over to another organization.
That is my reading as well. I believe the entirety of Section D is meant to authorize indefinite detention, but US citizens are exempted from the requirement that they be detained in the custody of the military.
Guys… this article is full of problems… running right over the issue that the words used here basically state that the government is not REQUIRED to detain you, but no where does it state that they “SHALL NOT” detain you. In legal terms there is a big difference. Sadly most americans seem to think that a law that says your NOT REQUIRED to do something, is the same as a law that says you SHALL NOT do it.
A King for example could write a law that says
“If a peasant hunts deer in my forest… I am Not Required to Behead him.”
If you went and hunted deer in his forest, the law he wrote simply says that he has a choice whether or not he beheads you. It doesn’t prevent him from doing so.
If the law said –
“If a peasant hunts deer in my forest… I SHALL NOT be permitted to behead them.”
The king would not be allowed to behead you. Of course he could drown you or crucify you instead I suppose to the non specificity of the statement… but I digress.
Here is the law as written in section 1032 that most idiots who think people like me are being paranoid need to learn how to read. .
1) UNITED STATES CITIZENS.—THE REQUIREMENTto detain a person in military custody under this section DOES NOT extend to citizens of the United States.
The Logic of this statement is translated as:
The Military is not REQUIRED to detain a US citizen. And when taken in the context of the rest of the document says that the ultimate discretion of what to do with someone was up to the military.
Because if the law said that the military was REQUIRED to detain you, that would actually be more limiting!
In other words this law is a BLANK CHECK and open to abuse.
In order for this section to protect the us citizen it would have to reference the 6th amendment to even be considered legal and lawful.
For example –
1) United States Citizen – United states Citizens SHALL NOT be detained under any circumstances which violate the rights listed in the US constitution, especially under the 6th, 7th and 8th amendments of the constitution.
Under the 6th amendment you may not be detained indefinitely without due process and a right to defend yourself. Under the clauses of 1031 – 1032 and other parts of the bill a citizen may be detained indefinitely without a trial.
When you combine this tripe with Rex84 you can see why some knuckleheads are scared.
I find this article to be biased and uninformed and I am offended at the inference that somehow only liberals or libertarians somehow see a problem with this bill… As if being liberal or Libertarian makes you stupid and gullible.
People need to WAKE UP before it’s too late.
uh, you seem to have missed the whole point of this article and the subsequent ones that I wrote.
The point is as written, this bill does not mandate that the military be used to police US citizens. That is NOT the claim made by the liberal site (OWS and the ACLU) and the libertarian site (Prison Planet and others now)
They mistakenly claim the bill DOES mandate that action, which is in direct contradiction to Posse Comitatus.
However, as I have shown in this article and subsequent articles, it’s actually the fix, the Udall amendments which seek to provide the necessary congressional act to override Posse Comitatus and mandate military policing of US citizens.
So yes, there is a great deal to worry about and yes, just so you know, I understand what Rex 87 is, thank you very much.
You need to be more careful in your evaluation of this bill… when you say… “Under the clauses of 1031 – 1032 and other parts of the bill a citizen may be detained indefinitely without a trial” as written, that is not the case, but if the ACLU and Mark Udall get their way, yes, it will be.
You are out of your mind… Did you read what I said? Your ability to read bills and legal documents is definitely in question if your still maintaining the position that this bill is not dangerous.
Who cares who the ACLU and Some libertarian media site says, why did you even bring that up? What does that have to do with anything? Lets stick to the issue here shall we and not try and confuse the issue by slanting reader opinion by bringing up the opinions of others who I never claimed to have anything to do with.
Really, what is your real Agenda Willy? I never stated they government was Mandated to do anything…
I said the government, under this legislation, has a blank check, which means they can do what they please.
Do you understand that saying they are Not mandated to Detain people Still means they are not PREVENTED from Detaining people?
I don’t know what your other articles are about, nor do I care, my statement was that this article does nothing to prove that the bill doesn’t pose a threat to American citizens.
It just restates the same disproven logic that somehow not being mandated means the same as being prevented.
As if that’s not enough, the people who WROTE the bill and support it clearly seem to claim otherwise.
This whole situation is almost a parody!
It would be funny as hell on Saturday Night Live or the Daily show…
This is classic double think madness and you know it, or you should,
Bringing up “libertarian site (Prison Planet and others now)” is a classic attempt to deflect away from the issue and make my stance questionable by implying I agree with them or that they alone are the reason this bill is dangerous.
Why the labels? Why not stick to the issue?
PS I DO agree with your assessment of the Udall and ACLU elements of your post. I don’t like either one.
So while I disagree with what your writing with regard to the reasons this bill is dangerous, I agree with that bit about Udall and ACLU.
Either that Or I’m misunderstanding your position.
I think everyone should state their position in comments like these before they start arguing to prevent misunderstanding…
Yes, the government isn’t REQUIRED to detain US citizens, but if the citizen hasn’t done anything wrong, why would they WANT to? If the military went out into the streets and captured average America-loving Joe Schmo and threw him in prison for the rest of his life without good reason or suspicion, then that would be one less jail cell for an actual terrorist. They’re not going to put in the extra effort to detain a nobody, when there’s potentially greater threats running amok. Now, if the citizen has been housing Al Qaeda members, high-grade military weapons and ammo surpluses, gathering a large supply of food, feeding critical top secret information to insurgent groups, and performing other things on a terrorist to-do list, then the military should have a right to throw the traitor into Gitmo. Although it may sound submissive (which goes against my very nature), I offer this question to you: If you’re not doing anything wrong, if you’re not associating with terrorist groups, not leaking classified information, not starting an insurgency, and not doing any weird terrorist-like activity, then what do you have to fear? Anyways, it’s not like the government couldn’t kidnap and detain people before. They’ve had the ability to do it WAY before s.1867 was even drafted, especially in the cases of the FBI and CIA.
I think a lot of the concern is (for very good reason) coming from members of protest groups such as the Occupy movement. The problem is that the term “terrorist” is quite unspecific, and it is not difficult to imagine a situation in the not-so-distant future, where the government starts taking “preventative measures” against members of said movement, because parts of the movement do express a wish to dismantle government as we know it. Of course we can all agree that members of this movement and others like it are not terrorists, but with no right to trial, who’s going to defend them? And how?
Willyloman:
I’m no fan of the ACLU, but it’s clear that Daniel is right in saying that “No Requirement to Detain” does allow for detainment. You are right that it does not “mandate” such, and you are also right that the Udal ammendment is no solution to the perils of the funding bill.
As time goes on, I become increasingly likely to vote as a conservative spoiler…that is…for Ron Paul as an independent. I see no benefit economically or militarily of the Republicans over the Democrats. Both parties are full of hawkish Keynesians.
to the author of this page: the part you went to great lengths to highlight in bold letters (that this does not apply to u.s. citizens) can be WAIVED if Leon Panetta says for it to be waived, as written right there in black and white. they wrote this whole thing in legal-ese and wrote the exception to the rule separately from the rule, before the rule itself, to cause confusion, and apparently the confusion worked on you, and you wrote this very misleading page. the military detention absolutely does apply to u.s. citizens who are deemed by Panetta to be participating in an attempted attack against the U.S. – now, depending on who you ask, some people will say the OWS movement is an expression of constitutionally-guaranteed freedoms and other people will say that it is an attempted attack against the U.S. ; these are perfect murky grounds for the police state to take root. bet you anything.
Wrong. What can be waived is the section that demands the “terrorist” be handed over to the military for trial and detention. That is the section that can be waived and only after submitting documentation to the congress explaining why.
No offense… but You are being dishonest here or have no grasp of law or legislation… I think the readers can see it and this statement shows a clear example of your lack of understanding of this issue.
“What can be waived is the section that demands the “terrorist” be handed over to the military for trial and detention.”
In your response to my original response, you stated that 1032 Subsection B clearly states the government is not MANDATED to detain someone.
If the government is not MANDATED to detain a citizen as you claim in 1032 Subsection B,
WHY DO THEY NEED A WAIVER TO ALLOW THEM to ignore such a mandate? A Waiver that should already be rock solid called the 6th amendment? Yet no such mention of the 6th amendment is mentioned!
In other words, by your logic, they don’t have to detain us, but if the military decides to detain you then the only way NOT to be Detained is if the Secretary of Defense comes to your rescue!?
So by your logic if you are detained by the military and the Secretary of Defense wants to waive the requirement to detain you he must consult with the secretary of state and the Director of national defense, and then must submit a certification in writing that such detainment is against the best interest of national security?
That sounds right to you? do you REALLY think that’s what the bill is saying with regard to the waiver?
No the clear logical interpretation of these sections, when read in the correct order state clearly that the government is not mandated to detain you, but may at it’s discretion waive the conditions laid out in Paragraph 2 if it is in the best interest of national defense.
You claim to be able to read the bill and understand it, but you contradict yourself each time you try to defend your position.
Clearly.
Let those who read our words see the truth for what it is… I know I won’t change your mind… but your unable to defend your position effectively so I am pretty sure it won’t matter in the grand scheme, people will make up their own minds and see how wrong you are the more you try to make yourself right.
Have a nice life
The waiver states that the requirement to hand over the suspect to the military can be overlooked or ignored on a case by case basis. You know, there are people who are not US citizens who are accused of terrorism. The waiver has to refer to them if the clause relating to this section of the bill clearly states that it does not apply to US citizens.
So that means the waiver applies to people who are not US citizens being detained or handed over to the military (ie: they can chose to detain Saudi nationals or others)
The ACLU’s concern is based on section 1031, not section 1032. That section says that the President has the authority to “detain covered persons (as defined in subsection (b)) pending disposition under the law of war.” A “covered person” is then defined as anyone who is engaged in hostilities against the US, and does not exempt US citizens. So the bill does allow for indefinite detention of US citizens — just under section 1031, not under section 1032.
Here’s the text — read it yourself:
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.
So why did you leave out this part?
“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.” section 1031 NDAA 2012 page 360
I don’t think that little bit of legalese is pertinent. Most of the legal theories that attempt to end run the bill of rights are based on the executive’s “inherent powers”. Section 1031 in particular is intended to affirm a particular view of what these powers entail.
If that caveat has meaning it obviates the need for section 1031.
Agreed. When I initially read that this was not “meant to limit or expand the authority of the President”, I couldn’t help but think of when people preface a statement with expressions such as “Not to cause offense, but…” Personally, I study language, not law, so I will not pretend to be fully aware of the repercussions of said paragraph, but I know that when any author writes “This is not meant to…” it is because the author damn well knows that “…” is what it does.
The reason they made that claim is because they specifically did not want to provide the “act of congress” the previous administration wanted to be able to use active military on the ground against US citizens. In fact, the first version of this legislation had a clause in section 1031 that specifically stated it did not apply to US citizens, but they were forced to remove that language by the current administration.
The applicability “Not Required” to detain American citizens is SPECIFICALLY only for Section 1032…NOT 1031
Section 1032 Specifically discussed CUSTODY PENDING DISPOSITION and applies the citizen and legal resident exemption in section (b).
“(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.”
NOTICE it states UNDER THIS SECTION
yes…. and so? Isn’t that why Udall is trying so hard to get his amendment passed? The Constitution protects us except if a law is passed by Congress … and that is what Udall is working at…. for the benefit of Obama and Hilliary. You need to read everything, not just a tibit.
I agree, I didn’t support the Udall amendment. It’s a bad band aid at best. Might buy us some time… but that’s about all. Frankly I have spent more time researching and proving the flaws with the current legislation to suggest a better solution.
I hear Rand Paul submitted a much more constitutional amendment which was struck down… I need to stop arguing with people like Willy because the problem is well documented and proven… what we need now is a solution, and I don’t trust Obama to be that solution because in my research the only things I can find are this statement of Administration policy.
Which if you read it shows absolutely NO objection to detaining citizens, but rather threatens veto on three issues, and the one regarding Citizen Detention doesn’t seem to mention that the veto would be because it threatens to detain citizens, but rather that the power to do so should be in the executive branch!
“Detainee Matters: The Administration strongly objects to section 1034 which, in purporting to affirm the conflict, would effectively recharacterize its scope and would risk creating confusion regarding applicable standards. At a minimum, this is an issue that merits more extensive consideration before possible inclusion. The Administration strongly objects to the provisions that limit the use of authorized funds to transfer detainees and otherwise restrict detainee transfers and to the provisions that would legislate Executive branch processes for periodic review of detainee status and regarding prosecution of detainees.
Although the Administration opposes the release of detainees within the United States, Section 1039 is a dangerous and unprecedented challenge to critical Executive branch authority to determine when and where to prosecute detainees, based on the facts and the circumstances of each case and our national security interests. It unnecessarily constrains our Nation’s counterterrorism efforts and would undermine our national security, particularly where our Federal courts are the best – or even the only – option for incapacitating dangerous terrorists.
For decades, presidents of both political parties – including Presidents Ronald Reagan, George H.W. Bush, Bill Clinton, and George W. Bush – have leveraged the flexibility and strength of our Federal courts to incapacitate dangerous terrorists and gather critical intelligence. The prosecution of terrorists in Federal court is an essential element of our counterterrorism efforts – a powerful tool that must remain an available option.
The certification requirement in section 1040, restricting transfers to foreign countries, interferes with the authority of the Executive branch to make important foreign policy and national security determinations regarding whether and under what circumstances such transfers should occur.
The Administration must have the ability to act swiftly and to have broad flexibility in conducting its negotiations with foreign countries. Section 1036 undermines the system of periodic review established by the President’s March 7, 2011, Executive Order by substituting a rigid system of review that could limit the advice and expertise of critical intelligence and law enforcement professionals, undermining the Executive branch’s ability to ensure that these decisions are informed by all available information and protect the full spectrum of our national security interests.
It also unnecessarily interferes with DoD’s ability to manage detention operations. Section 1042 is problematic and unnecessary, as there already is robust coordination between the Department of Justice, the Department of Defense, and the Intelligence Community on terrorism-related cases, and this provision would undermine, rather than enhance, this coordination by requiring institutions to assume unfamiliar roles and could cause delays in taking into custody individuals who pose imminent threats to the nation’s safety.
If the final bill presented to the President includes these provisions that challenge critical Executive branch authority, the President’s senior advisors would recommend a veto.”
Can someone else please find out if there is a better statement that DIRECTLY states that Obama would Veto because it’s wrong to detain citizens?
I have seen a lot of media spin on this issue, and even the independent media seems to not be providing the statement… so what gives?
This is my reading as well.
[...] reading this blog, which pretty much states what I see as a gross display of fear-mongering by the ACLU and adherence [...]
S1867 is the current bill being considered. These provisions you mention were in the previous bill 1253 and have been removed from the current one; S1867.
I propose that we forge a bill that forces us to name bills with a descriptive title instead of a number… and have a bill for only one item at a time.
hear hear.. all say ‘aye’
Amendment 1107 wouldn’t have had the effect you suggest; it would have struck out all of section D and replaced it with no new authority. The reports it mandated wouldn’t have had the force of law.
You are, I believe, incorrect in your assertion that section 1031 wouldn’t attempt to authorize indefinite detention of US citizens, and that the exclusion clause in 1032 would be adequate protection. The exclusion in 1032 applies to the mandatory military custody requirement, not the authorization of indefinite detention provision in 1031.
At the same time, you do well to point out that another amendment proposed by Udall, 1112, yet to be brought to a vote, would be as pernicious as you suggest.
I am very grateful for your attention to detail in this matter. After reading your commentary of the last few days I very carefully read the pertinent section of sb1867 and the amendments proposed by Udall and others.
It seems to me that there is a high level, bipartisan attempt to use the NDAA 2012 to further undermine our rights. The only question is who gets blamed, and who is willing to point the finger. Ideological labeling and identification are being used powerfully and cynically to confuse the issue.
Have you looked at the house version? This is an honest, not rhetorical question. It is the direction I intend to turn my attention, even as I watch the senate floor record to see who votes what way on the rest of the amendments pertaining to sections 1031/1032/1033.
Thank you,
Darren
Yes, that is part of the problem. 1031 at one time had language written into it that specifically stated that it would not pertain to US citizens on US soil, but the Obama administration had that language removed a month or so ago (check out the Levin/Udall discussion on the floor of the senate Nov.17th 2011… they both admit that fact)
Udall 1107 sought to create a committee made up of Clinton, Panetta and others to write the replacement language for 1031. How do you think they would have done that? You see, that is what I was concerned about, and apparently so were others.
You should have a look at the Feinstein amendments to 1031 and 1032. They are pretty straight forward, just adding words like “abroad” and directly stating that this will not apply to US citizens.
Honestly, I wonder about whether or not these changes should be codified into law at all and no matter what the actual bill claims, it is an expansion of the unitary executive’s authority even as written.
Thanks for your comment.
Tell that to Senator McCain:
“Sen. McCain: “I think that as long as that individual, no matter who they are, if they pose a threat to the security of the United States of America, should not be allowed to continue that threat.”
There has been some confusion on the Internet as to whether the National Defense Authorization Act really applies to U.S. citizens. But Sen. McCain’s answer should clarify that once and for all.”
[...] who're making wall st. nervous. Doesn't apply Americans unfortunately, looks like OWS will stay. http://willyloman.wordpress.com/2011…-u-s-citizens/ (b) APPLICABILITY TO UNITED STATES CITIZENS AND LAWFUL RESIDENT ALIENS.— (1) UNITED STATES [...]
What about the main issue which people are actually discussing in part in 1031 (you speak of 1032 which merely regards a “requirement” to detain) where it cleverly inserts “…including anyone who commits a belligerent act…)? This section does NOT speak of exemption of US citizens because it is not referring to a “requirement” to detain. What is a belligerent act? This is open-ended and dangerous. Read this and try to protect yourself against it with your own imagined scenarios. You can’t. Am I mistaken?
yes, he did discuss it in post at http://willyloman.wordpress.com/2011/11/30/s-1867-ndaa-2012-debate-updates/#more-17730
and if I am not mistaken, 1031 was voted down?
Clearly anyone who believes that section 1031 does not apply to US Citizens is mis-informed. Don’t take my word for it, listen to Lindsey Graham instead: http://www.c-spanvideo.org/appearance/600840428
The ACLU says:
Don’t be confused by anyone claiming that the indefinite detention legislation does not apply to American citizens. It does. There is an exemption for American citizens from the mandatory detention requirement (…section 1032 of the bill), but no exemption for American citizens from the authorization to use the military to indefinitely detain people without charge or trial (section 1031 of the bill). So, the result is that, under the bill, the military has the power to indefinitely imprison American citizens, but it does not have to use its power unless ordered to do so.
http://www.aclu.org/blog/national-security/senators-demand-military-lock-american-citizens-battlefield-they-define-being
One of the authors of these provisions:
“1031, the statement of authority to detain, does apply to American citizens and it designates the world as the battlefield, including the homeland.” – Lindsey Graham
In this video, Lindsey Graham says, in no uncertain terms, 1031 applies to citizens…
http://www.c-spanvideo.org/appearance/600840428
[...] As Written Sections 1031 and 1032 of S. 1867 Do NOT Apply to U.S. Citizens Posted on November 27, 2011 by willyloman [...]
This bill is to be comprehended in its entirety. however I will quote from meaningful parts. This bill only applies to covered persons (sec 1031 a)
covered persons are as follows:
b) COVERED PERSONS.—A covered person under
16 this section is any person as follows:
17 (1) A person who planned, authorized, com-
18 mitted, or aided the terrorist attacks that occurred
19 on September 11, 2001, or harbored those respon-
20 sible for those attacks.
21 (2) A person who was a part of or substantially
22 supported al-Qaeda, the Taliban, or associated forces
23 that are engaged in hostilities against the United
24 States or its coalition partners, including any person
25 who has committed a belligerent act or has directly
1 supported such hostilities in aid of such enemy
2 forces.
If you had not aided terrorists, then this bill means absolutely nothing to you.
18 (d) CONSTRUCTION.—Nothing in this section is in-
19 tended to limit or expand the authority of the President
20 or the scope of the Authorization for Use of Military
21 Force.
Nothing has changed in the way the military conducts itself, or will conduct itself
SEC. 1032. REQUIREMENT FOR MILITARY CUSTODY.
4 (a) CUSTODY PENDING DISPOSITION UNDER LAW OF
5 WAR.—
6 (1) IN GENERAL.—Except as provided in para
7 graph (4), the Armed Forces of the United States
8 shall hold a person described in paragraph (2) who
9 is captured in the course of hostilities authorized by
10 the Authorization for Use of Military Force (Public
11 Law 107–40) in military custody pending disposition
12 under the law of war.
13 (2) COVERED PERSONS.—The requirement in
14 paragraph (1) shall apply to any person whose de
15 tention is authorized under section 1031 who is de
16 termined—
17 (A) to be a member of, or part of, al-
18 Qaeda or an associated force that acts in co
19 ordination with or pursuant to the direction of
20 al-Qaeda; and
21 (B) to have participated in the course of
22 planning or carrying out an attack or attempted
23 attack against the United States or its coalition
24 partners.
Again, in order for you to be detained you have to fall under the covered persons as stated in section 1031 and THEN you have to be determined to be either in Al-Qaeda (or associates), or planning/carrying out an attack on the US, in which case you should be detained.
15 (b) APPLICABILITY TO UNITED STATES CITIZENS
16 AND LAWFUL RESIDENT ALIENS.—
17 (1) UNITED STATES CITIZENS.—The require
18 ment to detain a person in military custody under
19 this section does not extend to citizens of the United
20 States.
All this section means is if you fall under the covered persons AND are a US citizen then the military is not REQUIRED to detain you (although they probably will if you are associated with terrorists). This just states that the military has the option to detain you, let another governmental institution detain you, or let you go. But, once again, you must fall under the covered persons for this to happen in the first place.
The question is, do either of these two sections rise to the level of the act of congress needed to mandate the use of the military to detain and try citizens suspected of terrorist activity and the answer to that is no. BOTH sections have expressly stated that this legislation does not do that. One states that it does not expand the powers of the president to use military force against citizens and the other states that it does not require such actions.
This is THE important aspect of the bill and why the Obama administration threatened to veto it as it stands. They wanted that express act of congress to rubber stamp the use of military against civilians and Levin did not give it to them.
The Udall amendment would have allowed Clinton and Panetta to write their own language for this section and to present whatever relevant legal jargon they needed to justify it.
1031 states that it does not expand the President’s ability to use military force against citizens any further than it already is. However, courts have already ruled that “[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of … the law of war”. If you read the ruling in Hamdi v. Rumsfeld, you will find that the Supreme Court has already ruled that Congress has turned the right to detain citizens of the US over to the government when it passed AUMF on Sep. 18th 2001. 1031 (e) added by the Senate states that the President must brief Congress regarding the use of 1031 but it does not hand the right to pursue civilians using the military back to congress.
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