Homeland Security Watch

News and analysis of critical issues in homeland security

December 15, 2011

National Defense Authorization Act FY2012: An obscure and likely danger

Filed under: Legal Issues,Terrorist Threats & Attacks — by Philip J. Palin on December 15, 2011

On Monday a House-Senate conference reported out compromise language for the FY2012 National Defense Authorization Act.  Last night, Wednesday, the House passed the conference-approved version.  The vote was 283 to 186, with Republican libertarians and Democratic liberals sharing the minority.

As previously posted at Homeland Security Watch, the separate House and Senate versions of the legislation included provisions that had caused the President to threaten a veto.  As I write this on Wednesday night, the White House has, according to CNN, decided not to veto what emerged from the conference.

I have not yet been able to secure a copy of the conference language.  It’s certainly out there and I have just not had time to look in the right place. (It’s been a tough week.)  Following is the language adopted by the Senate that causes me the greatest concern:

(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 111–25 84)).428† S 1867 ES1 (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.

This executive authority is evidently extended even to citizens.  Again, I have not seen the conference language.  I hope there has been a substantive change.

But if not, and news reports suggest this section was not substantively changed, a citizen whom the Executive — on its own authority — determines has “substantially supported” a group that the executive has determined — on its own authority — is “associated” with Al-Qaeda or the Taliban, can be held without trial until the end of hostilities.  No judicial review limits this power.  Nothing  but the Executive’s good faith and wisdom stands between a person and unlimited detention… until the end of hostilities.

There are other provisions of the Act worth active concern.  But I have read and re-read this language and thought and re-thought the last ten years (3000 years) and I cannot fathom why any Congress would give any President this kind of authority.

If the President does not veto — and from a purely political perspective he should not veto — I find it hard to imagine the detention of a citizen under the Act being allowed to stand by the Supreme Court.   It was, after all, Justice Scalia who wrote in Hamdi v. Rumsfeld, “The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.”

But then a few years ago I would not have imagined such a measure ever moving beyond a quick burial by Congressional committee.

I see no clear and present danger suddenly springing from the law’s passage.  But that the House and Senate in Congress assembled adopted this legislation — overwhelmingly — and a President will apparently sign it,  ought be noted by future historians with keen interest.  I hope those future scholars will have cause to claim the body-politic soon recovered its courage and sense of constitutional integrity.

–+–

I am posting this quickly — perhaps too quickly — as a matter of keen personal interest.  I have not had the time to research this as fully as I would like and my schedule for the next several days may not allow me to participate in discussion.  It is a good time to tear me to shreds.  I will not be around to defend myself. But especially because I will not be in a position to post, I welcome your informed corrections.

–+–

UPDATE

Please see comments for link to conference language.

Please also see commentary by Glenn Greenwald providing substantive analysis of the actual legislation, another contribution from a reader.

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14 Comments »

Comment by William R. Cumming

December 15, 2011 @ 4:01 am

No Phil you have it correct. This Congress is a clear and present danger to our Constitution and the rule of law! If this is the language it should be vetoed and hopefully the veto sustained. If not this President has no understanding of the Constitution that supposedly he taught its meanings.The growth of the field of National Security Law in the last two decades has focused on the great dangers posed to the USA by the National Security State which continues to use the non-existential threat of terrorism to consume substantial portions of what resources are left to the American people after the banksters have finished dining. Don’t ask for whom the bells toll! They toll for US!

Comment by Elder Abuse: Administration and Congress As Enemies of Our Beloved Constitution & The Heartless Oath of Offfice

December 16, 2011 @ 8:54 am

Well, most consider elder abuse of anyone 60 or over and we have applicable laws safeguarding our elders.

Given these laws, the actions of many holding public office who have been serving their own agenda and abusing We here on “Main Street USA” and the principles of this – elder – nation should be subject to criminal proceedings, thereby shutting down government for the lack of an available quorum and genuine leadership representing the country as we once knew it – standing before God whoo is witness to all and leading a Democracy and affording the individual the Rights as gifted to us by our beloved forefathers with their vision of caution as well of those within…

It has become so blatant in failed governing that those of us here on “Main Street USA” prefer to see taht this government resign! With their hands deep down in the cookie jar..you and I as well as – they – know this will never happen, We are certain we as a nation and people unable to repent are destined for financial collapse. This is certain.

Given the age of our nation, never mind in our previous stature sitting among all nations, many could construe the Republc as an elder and so very much abused by those whose hand over heartless oath has proven to be empty in pledge and American spirit, in fact, an Act of Treason..a word the President has publicly stated that he does not like to hear…wonder why?

In fact, let me be the first American citizen to call for the President’s arrest by citizen for Philip Palin who has written a wonderful post uses the words, “An obscure and likely danger” and for many of us here on “Main Street USA” it is the President, his WH staff and many in US Congress that are quite clearly, quite evident a danger to We the Peoople and the Constitution every patriotic American who nlot only has the Right to carry Arms for all lawful purpose, but to safeguard the US Constitution from the enemies of the Republic!

Why do We look for enemies of our beloved Constitution and our precious Republic to distant shore when in fact, the enemies of our beloved Republic are the – Goldman Sachs – riddled present administration and its global reach w/banker pals and most assuredly numerous members of Congress.

Many of us here on Main Street USA consider this treason, yes treason and these “beltway bandits” – indifferent to the majority of America have positioned themselves by our “entrusted” vote based on empty campaign promises from the helm to the deck hands who have bankrupted us and with our front porch flags flying upside down depicting the distress of our nation and its once most charaitable people are now well enlightened of how they trusted and have been duped and We on “Main Street USA” will by dumping the present administration and its cronies one by one at the election poll! This is a certainty as will the unemployment rate by higher on election day than it is today…

Housing and unemployment figures will even worsen in time. This is certain. The lack of genuine leadership and statemanship, the intentional turning of one’s cheek to allow the Iranians to share our technology with China and the “KGB Putinities” should be considered by the American people as an act of treason itself –

We have failed leadership which tells the American people to save when their pockets and last pennies of change have been emptied by these policy makers whpse campaign slogan of – change – meant exactly that in foreclosures and bankruptcies, kids and their families living out of their cars….

The kid from Chicago, the community organizer from Chicago with his well versed textbook groupies, coupled with the coveted Ivy league ticket in hand, yet understanding little of the enlightened patriotic spirit of the American people…will face their wrath at the election poll.

We are a generation of baby-boomers, many of who are now elders…tired of this charade and demanding term limits foor every elected office from local town hall, to the state house to the White House including a recall initiative of anyone from the President down the ranks…

This continued spending given the known $15 trillion in budget deficit…well, the open checkbook we have given Democrats and Republicans and the local school administrators must cease and in this next election from local to executive, those who seek to burden us with more government and whose intent is to make more and more of the population dependent on government…oh, how We here on “Main Street USA” have allowed us to be so ever absued and financially
bankrupted.

The Act in detaining a citizen will most assuredly be imposeded for it will be just one more Act against citizen while detainees at Gitmo may have more Rights than a US – legal – citizen…

God Bless us all and our beloved Republic which until recently was the beacon of hope to those oppressed on distant shore, but they, too see the same oppressive tactics inherent with self-agenda and greed walking the halls of Congress!

Christopher Tingus
“Main Street USA”
PO Box 1612
Harwich (Cape Cod), MA 02645
chris.tingus@gmail.com

Comment by William R. Cumming

December 19, 2011 @ 12:17 pm

Note that Presidential Candidate Ron Paul has announced that this legislation allows imposition of nation-wide martial law in the USA.

There actually is NO such thing as Martial Law in the US Constitution or history.
Explanation complicated but best exposition of that position done by Mary Lawton, Esq. long deceased of DOJ/OLC in her 1980 monograph covering that topic. That monograph did have some notoriety since it contradicted over two hundred years of doctrine of the US Armed Forces and the teaching of DoD’s various schools.

Bottom line–only the President can declare Martial Law in a geographically limited area and then only until Civil court systems reestablished.

No local military commander has the authority to declare martial law.

How about them’s apples.

Pingback by Rather dissapointing news (constitutional freedom edition) | Travels with Shiloh

December 20, 2011 @ 7:51 am

[...] More from Homeland Security Watch. [...]

Comment by Ron Ewart, President

December 20, 2011 @ 6:39 pm

Phillip:

A copy of the Conference Report is available at:

https://docs.google.com/viewer?a=v&q=cache:5vvmRYcSwpEJ:www.lawfareblog.com/wp-content/uploads/2011/12/NDAA-Conference-Report-Detainee-Section.pdf+&hl=en&gl=us&pid=bl&srcid=ADGEESh_jOl83yMzZbJb-defCEnAsAW1FjTBm26mYr6q0SnDdLgRRWAzh0_ljfNTCT-UeqI8-ixASUdlpnIDkfSAbeDDaokMJjomzB4aBjKFBUud5b0lwxd4Nc3SUElgrLrZbd2MS4uL&sig=AHIEtbRy40lGqAkuaeZTmiZF9RSUMKgZ8Q

The Conference Version does contain language that states that the NDAA does not extinquish any law or authority that applies to citizens of the U. S. Look on page 655 for his language.

Take care,

Ron Ewart, President
NATIONAL ASSOC. OF RURAL LANDOWNERS
P. O. Box 1031, Issaquah, WA 98027
425 837-5365 or 1 800 682-7848

Comment by Jeff Bowers

December 20, 2011 @ 9:00 pm

I thought this an interesting read: http://www.salon.com/2011/12/16/three_myths_about_the_detention_bill/singleton/

Greenwald can sometime be a bit screechy, but in this case his analysis of the language in question in the NDAA is compelling to me.

Comment by William R. Cumming

December 21, 2011 @ 12:18 am

I would argue that a specific exclusion for US citizens should be included but have not fully researched the issue at this point. Has the bill been signed?

The problem is that SCOTUS has not ruled on indefinite detention to my knowledge in any case yet involving citizens, but could be wrong.

Comment by Philip J. Palin

December 21, 2011 @ 4:37 am

Mr. Ewart and Mr. Bowers, many thanks for the links. I am still reading, but for the moment I am sorry to say the Greenwald piece seems to confirm my worst fears. It quotes most of the same language I had and draws the same conclusions. Bill, seems to me those crafting the legislation wanted to specifically include citizens as the target of indefinite detention and other provisions.

Comment by William R. Cumming

December 21, 2011 @ 3:18 pm

Phillip afraid you are correct!

Comment by William R. Cumming

December 22, 2011 @ 11:54 am

Greenwald’s analysis seems a correct one. I had an author ask me over one year ago if a US citizen arrested on US soil could be indefinitely detained because she was writing that scenario into a novel. I told her we did not really know until a definite ruling came from SCOTUS on the issues and policies involved. Still no ruling that I know of as 2011 winds up.

Comment by William R. Cumming

January 2, 2012 @ 1:04 am

Signed into law over the weekend by the President with a signing statement that might be described as suggesting “no problemo”! Respectively Mr. President I disagree. A low point in your Presidency however long it lasts. Did you really teach Constitutional Law at Harvard?

Pingback by Homeland Security Watch » NDAA is law: President’s statement

January 2, 2012 @ 5:15 am

[...] In prior posts I have argued against several provisions of the the National Defense Authorization Act.  On New Year’s Eve, the President signed the legislation.  It is now law. [...]

Comment by William R. Cumming

January 2, 2012 @ 9:06 am

This extract from the signing statement is a patent falsehood since SCOTUS has yet to rule on indefinite detention of US citizens:

“The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then.”

Don’t ask for whom the bells toll! They toll for US!

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