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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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