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The Misleading Language of the 2012 NDAA

The National Defense Authorization Act of 2012 (NDAA) includes provisions that allow the President to indefinitely imprison U.S. citizens or others, without trial. The language of the “indefinite detention” provisions of the NDAA was carefully crafted to be misleading to the average American. This makes it easy for politicians to lie about the scope of this authority while using statements which are, technically, true. Despite outcry from civil liberties groups, the Act was passed with broad bipartisan support and was signed into law by Obama. A handful of brave Congressmen and Senators spoke out, but it was not enough to break the overwhelming consensus. Here are some of the deceptions which are now being used on constituents by those who supported the bill (In the clips I have seen from the debates, it was openly discussed that the provisions allowed indefinite detention of U.S. citizens without trial, so I believe that these deceptions are intentional):

Deception #1: "The NDAA gives no NEW authority to detain citizens." This is an accurate, but misleading, statement. The NDAA does not grant new authority; it merely codifies the unconstitutional authority that the President already claims, under the September 18, 2001, Authorization for Use of Military Force (AUMF).

Deception #2: "U.S. citizens are exempt from the REQUIREMENT of military detention." This is also a, technically, true, but deceptive, statement. U.S. citizens and legal resident aliens are exempted from the REQUIREMENT of military detention. They are not, however, exempt from the OPTION of military detention, which can be initiated at the sole discretion of the Executive. Under this law, the President can decide whether a citizen will be held under military or civilian law. As for covered non-citizens, section 1022 REQUIRES that they be held under military law (it is not left to the President's discretion).

Please see my supporting arguments below:

The “indefinite detention” provisions (section 1021 and 1022) of the National Defense Authorization Act of 2012 (NDAA) are in direct contravention of the 5th and 6th Amendments to the Constitution (among other possible constitutional violations). These provisions of the NDAA provide the President, AT HIS SOLE DISCRETION, with the option of indefinitely detaining “covered” American Citizens and Legal Resident Aliens, WITHOUT TRIAL. The provisions make it a requirement that other Foreign Nationals who are “covered persons” be detained under military law (unless the President applies for and receives a special waiver from Congress). Because there is no trial, those alleged to be “covered persons” under these provisions will have little to no ability to challenge such claims. This means that one could be designated a “covered person” with no substantial proof. There may also be no opportunity for a Supreme Court legal challenge of the constitutionality of this law, as a victim of this legislation would not be granted access to the judicial system. I cite the important parts of the bill below. I have entered my own commentary in bold, enclosed in brackets. The full text of the final NDAA, the Senate bill, and Obama’s Statement of Policy can all be found in links at the bottom.

While this was still a bill in the Senate, it was called S.1867. The sections 1021 and 1022, which I have copied below, corresponded to sections 1031 and 1032 in the Senate bill. With regard to these sections, Obama issued a “Statement of Administration Policy” on 11/17/2011. He claimed that the bill was an unnecessary codification of an authority which ALREADY EXISTED (see Deception #1 above). The Administration’s statement said, “Section 1031 attempts to expressly codify the detention authority that exists under the Authorization for Use of Military Force (Public Law 107-40) (the “AUMF”). The authorities granted by the AUMF, including the detention authority, are essential to our ability to protect the American people from the threat posed by al-Qa'ida and its associated forces, and have enabled us to confront the full range of threats this country faces from those organizations and individuals. Because the authorities codified in this section already exist, the Administration does not believe codification is necessary and poses some risk. After a decade of settled jurisprudence on detention authority, Congress must be careful not to open a whole new series of legal questions that will distract from our efforts to protect the country. While the current language minimizes many of those risks, future legislative action must ensure that the codification in statute of express military detention authority does not carry unintended consequences that could compromise our ability to protect the American people.”

Pertinent Language from the Final NDAA of 2012

SEC. 1021. 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; 50 U.S.C. 1541 note) 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 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.

(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) AUTHORITIES.—Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

SEC. 1022. MILITARY CUSTODY FOR FOREIGN AL-QAEDA TERRORISTS.

(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.

(2) COVERED PERSONS.—The requirement in paragraph (1) shall apply to any person whose detention is authorized under section 1021 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.

(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 1021(c), except that no transfer otherwise described in paragraph (4) of that section shall be made unless consistent with the requirements of section 1028.

(4) WAIVER FOR NATIONAL SECURITY.—The President may waive the requirement of paragraph (1) if the President 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.

 

Important Links:

NDAA of 2012- http://www.gpo.gov/fdsys/pkg/BILLS-112hr1540enr/pdf/BILLS-112hr1540enr.pdf

S.1867- http://www.gpo.gov/fdsys/pkg/BILLS-112s1867pcs/pdf/BILLS-112s1867pcs.pdf

11/17/2011 Statement of Administration Policy- http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/saps1867s_20111117.pdf

ACLU Statement after Obama signed the 2012 NDAA into law- http://www.aclu.org/national-security/president-obama-signs-indefinite-detention-bill-law

ACLU Statement of a previous Obama “indefinite detention” order- http://www.aclu.org/national-security/president-obama-issues-executive-order-institutionalizing-indefinite-detention

Videos:

Senator Mike Lee arguing against “indefinite detention”- http://www.youtube.com/watch?v=IXn_gO62uD4&feature=player_embedded

Senator Rand Paul arguing against “indefinite detention”- http://www.youtube.com/watch?v=DWApGqE_T-k

Lieutenant Colonel Allen West providing misinformation about “indefinite detention”- http://www.youtube.com/watch?v=w5KJPm2b-v8

Carl Levin explaining that Obama specifically requested for “indefinite detention” to be applicable to citizens - http://www.youtube.com/watch?v=q6ARkiJM2bA

Rush Limbaugh Commenting on the "Indefinite Detention" Law-

http://www.youtube.com/watch?v=yTrPDicHjJQ

Rachel Maddow on Obama’s previous “Indefinite Detention” order- http://www.youtube.com/watch?v=L8J_lcHwkvc

 


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