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Read the Military Detention Bill

November 29, 2011 - by Donny Shaw

The 2012 Defense Department Authorization bill that the Senate is working on this week contains a provision that would authorize the U.S. military to indefinitely detain, without charge or trial, anyone they consider to be engaged in hostilities against the United States. The provision would not restrict military detentions to people in specific countries or regions of the world and would apply to U.S. citizens living within the United States. 

With the social uprisings taking place around the world, including the Occupy movement, the relevant and important question here is if this could be used to attempt to justify military suppression of constitutionaly-protected political activity. Could the military use this to power to essentially disappear U.S. citizens with inconvenient views? As always, it’s not the intention of the legislators that ultimately matters, it’s the legislative text and it’s interpretable potential for as long as it may stand as law. Therefore, I’m posting the legislative text of the provision below for you to read for 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.

    (c ) Disposition Under Law of War.—The disposition of a person under the law of war as described in subsection (a) may include the following:

            (1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.

            (2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)).

            (3) Transfer for trial by an alternative court or tribunal having lawful jurisdiction.

            (4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.

    (d) Construction.—Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

    (e) 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).

The key phrase, according to my reading, is: “A person who was a part of or substantially supported […] associated forces that are engaged in hostilities against the United States or its coalition partners.” With Libya, we saw Obama select a definition of “hostilities” from the War Powers Act that fit his preference for not seeking authorization for military action from Congress. Political protests are disruptive and hostile by definition, so what’s to prevent a President (Obama or future) from twisting this language to detain political protesters in the same way Obama twisted the language of the War Powers Act? Similar questions ned to be asked of other language in this section, e.g. “substantially supported,” “associated forces.”

Read the ACLU’s take here.

UPDATE: This provision is now cleared to pass the Senate unchanged. On a 37-61 vote the Senate rejected an amendment from Sen. Mark Udall [D, CO] that would have struck the provision from the bill. The full bill is expected to pas the Senate this week. President Obama has already issued a veto threat over the detention language, and from the roll call on the Udall amendment it appears that senators opposing the provision would have the votes to stop a veto override.   

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Comments

NutritionAdvocate 11/30/2011 8:26pm

This bill is ridiculous and just REEKS of ABUSE OF POWER.

0ivae 12/05/2011 4:48am
in reply to donnyshaw Dec 05, 2011 1:04am

So it remains an option, not a requirement. However, it should be noted that apparently, the section was originally written to preclude the option as well, until the Obama administration requested to have that language removed.
From the Senate debate:

http://www.lawfareblog.com/wp-content/uploads/2011/11/Detainee-Debate-SASC-floor-Nov-17-and-Nov-18-20111.pdf

Senator Levin:

“I wonder whether the Senator is familiar with the fact that the language which precluded the application of section 1031 to American citizens was in the bill we originally approved in the Armed Services Committee, and the administration asked us to remove the language which says that U.S. citizens and lawful residents would not be subject to this section.” -Pg. 13

See also Pg. 45, where Lindsey Graham confirms this:

“But why did we take out the language Senator Levin wanted me to put in about an American citizen could not be held indefinitely if caught in the homeland? The administration asked us to do that.”

scooters83 12/03/2011 11:39am

Wait a minute, this article is not telling you the whole truth. Just a couple of lines down it says in the text “The requirement to detain a person in military custody under this section does not extend to citizens of the United States.” It also says, “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.” This is in section 1032.b.1 and 2. http://www.downsizedc.org/blog/the-rushed-detainee-provisions-of-ndaa

Vacantskies89 12/01/2011 1:28am

Declaring the homefront as a battlefield and giving the government the right to detain citizens as terrorists without fair trial is a declaration of civil war by definition. They should rename this bill the “Civil War Bill”. If we understand the implications of this bill, it should be the scariest day of a lot of our lives when it gets passed.

Brandogrey 12/02/2011 6:10am

I suppose if we were to completely trust our government we would have nothing to fear in this bill…

milkyway12 12/03/2011 3:48am

I DO NOT , support this bill in any way. This terminology is WAY to broad. Any American that is “Getting Tired of this govern and wants a change” and happens to say this out loud …. could very quickly get you in trouble with this new bill.

They do this one purpose. They word it in such ways to seem mostly harmless and its a fire ant colony. I know how the politics works. I had to write papers for my Military Science / Diplomacy classes. You make the resolutions and agreements seem organized , you do not over word the document , though you do want to use proffesional terminology ; you also trick them by using specific terminaly bound with broad terminology.

It is very easy to trick people in terms of agreements / bills. I had to write a paper on doing this.

Now, my analysis:

Im sorry donnyshaw but you’re incorrect. Section 1031 merely functions as a sort of preamble to section 1032. 1031 is, however, the section that causes worry because it seems to be open to manipulation, having avoided inserting the section (b) language which is included in 1032.

The purpose of 1031 is to avoid questions of constitutionality by “affirming” that everything mentioned here is consistent with SJ RES 23. Remember that SJ RES 23 was issued on 9/18/2011 and was congress’ authority to the president to use all necessary and appropriate force against those… he determine[d] planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons."

1032 goes further and claims that ASAF is required to detain those people, except if they are citizens or resident aliens. IT STILL ALLOWS HIM TO DETAIN CITIZENS AND RESIDENT ALIENS, JUST NOT REQUIRES!

Why?

donnyshaw 12/05/2011 1:04am

In the language you’re quoting, “this section” does not refer to Section 1031 (authorizing military detention). It refers to section 1032 (mandating military detentions). That means that the military would have the power to indefinitely detain U.S. citizens, but it would not be required to use that power.

While theoretically POTUS/USAF may not detain citizens, it seems that arrest power is still there. It is now up to you to appeal the decision in court, which if you’re a citizen and in the US and get the chance to, might work out well. The important thing is that while you may not end up being detained, they can still arrest you. Its like when police make up probable cause or give tickets for going 5 mph over, even though there’s a chance of getting the case dismissed.

This is the same kind of broad language that allowed for the internment of the Japanese under FDR’s Executive Order 6099 (simply allowing the Secretary of War to create “military zones.” That in conjunction with martial law and the Supreme Court basically ignoring the issue caused quite a situation). It is the exact same kind of language that allows for wiretapping of citizens under the PATRIOT Act.

I do not believe, however, that this is the practical purpose of the legislation. Why?

Footnote:

Sorry again donnyshaw but I reread your comments and think I understand what you meant now. What you pointed out as a key phrase is, because those powers aren’t mentioned in SJ RES 23, only the 9/11 clause is. This now broadens the base of potentially arrestable people. More importantly it allows one person – the president – to determine who’s rights are suspended (The intent of the war powers clause of the constitution arguably was to prevent this).

They are related, however. The exclusion of the Citizens and Aliens clause from 1031 but its inclusion in 1032 allows for an interesting loophole exploitable both by the the people and the government. You can still get arrested, though you may win acquittal. When the government will attempt to detain new arrestees around the world indefiniely, it will be because of section 1032, not 1031. And as I said earlier it is very likely that 1031-2 will be used in conjunction with 1033.

Essentially: every part of a bill matters.

RossC 12/06/2011 11:14pm

Regarding the “legal” language part of the debate i must ask: since the C.I.A. came up with the name Al-Qaeda what does that foreign language version of “the base” mean in a LEGAL document such as this especially if “Al-Qaeda” includes known pork, cocaine, prostitute, & strip-club lovin’ characters like Mohamed Atta ?? (or) I guess the next logical question is if that guy is STILL going to be sold to the American public or more like CLASSIFIED as a “fundalmentalist” what other abuses of language or more like stretches of the imagination will enmerge in the HOMELAND ? oh how Nazi Germany just LOVED that word. when oh when did “domestic” become such an unfashionable term in the land of legal language ???

Spam Comment

donnyshaw 12/03/2011 12:06pm
in reply to scooters83 Dec 03, 2011 11:39am

That language is in a different section. It does not apply to the authority granted in Section 1031 that I have excerpted above.

MontanaGirl 12/03/2011 7:45pm
in reply to scooters83 Dec 03, 2011 11:39am

He’s right, folks! ^

(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…

Doesn’t this actually answer our concerns? I was very upset about the original thread…until coming across this ^

scooters83 12/03/2011 12:36pm
in reply to donnyshaw Dec 03, 2011 12:06pm

Are you sure? I don’t think so. It also says in section 1032, "The requirement in paragraph (1) shall apply to any person whose detention is authorized under section 1031 who is determined (a)to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.

It then adds on the section excluding US citizens and lawful resident aliens shortly thereafter. The language over laps, therefore US citizens and lawful resident aliens cannot be detained. If you are right, then I hope this bill gets vetoed. How can the senate not recognize what they’re doing?

Moderated Comment

This bill, written cleverly with the clear intention to allow confusion and manipulation, wreaks of the Alien & Sedition Acts and WWII internment (not to mention G-bay, aka Section 1033).

My explanation:

Section 1031 merely “affirms” that the president has the authority, pursuant to Public Law 107-40 [SJ RES 23] and consistent with the War Powers Resolution of 1973, to “detain covered persons pending disposition under the laws of war.”

“covered” includes those who planned 9/11 (as was mentioned in SJ RES 23), but also includes the “part of substantially supported” terrorist organizations bit.

“disposition” includes “detention… without trial until the end of hostilities” but also includes a trial provision

Section 1032 restates all of this, but says that “the Armed Forces of the Unites States shall hold a [covered person]… pending disposition.”

AS WELL AS includes a second section claiming the shall requirement does not apply to “citizens and lawful resident aliens.”

MontanaGirl 12/03/2011 7:56pm
in reply to donnyshaw Dec 03, 2011 12:06pm

Could you expand on this more? Why would it not apply?

My conclusion:

Considering what that main differences between the description of “covered” persons in section 1031-2 and the description of who POTUS may engage force against according to SJ RES 23 are, along with the fact that section 1033 deals with G-Bay detainees, it’s my belief that the main practical purpose of the legislation is simply to expand the base of people POTUS/USAF may arrest around the world and disappear to tropical island prisons. This in itself is the problem as I find it highly unlikely (though not impossible) that citizens would end up the way the author of this article worries.

Nevertheless, considering Obama not only promised to end human rights violations and close G-Bay, and considering the language even sparks a conversation like this, these sections SHOULD cause worry and SHOULD NOT be passed.

MontanaGirl 12/03/2011 7:58pm
in reply to MontanaGirl Dec 03, 2011 7:56pm

The sections are under: Subtitle D—Detainee Matters

Moderated Comment

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