The NDAA does not allow the President to detain a single person that he could not previously detain.

[BzaDem]

I originally posted a variant of this in the depths of another thread, but I figured it might be useful to make an OP for reference.

In terms of indefinite detention (military or otherwise), the NDAA does nothing beyond codifying law that was already claimed by the executive and approved by the courts. In particular, it specifically (by its own terms) does not give the President any new authority to detain a single United States citizen, permanent resident, or any person (non-citizens included) captured inside the boundaries of the United States.

For anyone who may disagree with this, here is a line-by-line analysis of why the above statement is correct.

First, look at the title of section 1021 on page 653:

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.

Who does it cover?

" (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."

Who does it exempt?

" (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."



Now, look at section 1022, subsection A.

"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."

What is a person "described in paragraph (2)?"

Let's look at paragraph (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."

So 1022A(1) applies only to a subset of covered people authorized under section 1021. The same exemption for US Citizens (1021e) therefore applies to all of 1022. This means that no court can read this legislation as providing any new authority (that didn't exist prior to the NDAA) to detain any American citizen.

[msongs]

1. a president should not be allowed to detain anyone nt

[zeljko67]

2. Exactly:

The executive assumed they had authorization from the 2001 AUMF to Militarily detain a us citizen on us soil indefinitely, at that point it was IMPLICIT. Now it is EXPLICIT-codified into law. Therefore it is law now for the executive to militarily detain a us citizen indefinitely, though it is not a REQUIREMENT(not mandatory), the king..i mean president has the option if he chooses to let the suspect be tried in the court (sec.1032)

And to reinforce everything that I have stated is the fact that when Feinstein's amendment to EXPLICITLY EXCLUDE US citizens from Military detainment came up for a vote it was DEFEATED.


http://www.feinstein.senate.gov/public/index.cfm/press-releases?ID=92cd1ac6-e756-4cd3-982c-ab34d1933d94



WHY DID SHE TRY TO PASS THAT AMENDMENT?
WHY WAS IT DEFEATED?

Moreover, here is part of a response a friend of mine received from Al Franken regarding the bill:

On December 15, 2011, the Senate passed a bill including provisions on detention that I found simply unacceptable. These provisions are inconsistent with the liberties and freedoms that are at the core of the system our Founders established. And while I did in fact vote for an earlier version of the legislation, I did so with the hope that the final version would be significantly improved. That didn't happen, and so I could not support the final bill.

"The bill that passed included several problematic provisions, the worst of which could allow the military to detain Americans indefinitely, without charge or trial, even if they're on U.S. soil. Another provision requires the military-not civilian law enforcement agencies like the FBI-to detain anyone that it believes to be a member of al Qaeda or an associated force and who helped plan or carry out an attack on the U.S. or its allies. At their core, these provisions will radically alter how we investigate, arrest, and detain individuals suspected of terrorism. This leaves it unclear what role the FBI and other law enforcement agencies are to play, despite their proven effectiveness at preventing attacks on our homeland since September 11th. This comes despite deep concerns voiced by FBI Director Robert Mueller before the Senate Judiciary Committee, of which I'm a member. What's more, these provisions could undermine the safety of our troops stationed abroad."

During consideration of the National Defense Authorization Act, I expressed my strong opposition to these provisions on the floor of the Senate. I filed two amendments to strip each of the provisions, but unfortunately neither received a vote. I also voted in favor of several amendments that would have made significant improvements to the provisions; none of these passed................"

Its unbelievably BAD.

[BzaDem]

5. The Feinstein amendment would have reduced the president's authority from the currently accepted

authority by the courts. The Feinstein back-up amendment (which passed) ensures that the President's authority was not expanded by this bill, with respect to US Citizens.

So one cannot say that this bill expanded what the executive was previously able to do.

[zeljko67]

14. What can I say, but its time for you to take a reading comprehension course.

Feinstein's bill is explicit, it asked tor clear language to not include US citizens on US soild. IT was defeated..also see Franken's letter which you shose to ignore.

[BzaDem]

29. Someone here definately does.

Not sure it's me though.

I pointed out why you are wrong line by line.

[zeljko67]

30. You're just not understanding.

Feinstein's amendment would guarantee us citizens due process, it was defeated. The NDAA bill itself takes that right away based on the assumption that the executive could already take away the due process rights of us citizens under the 2001 AUMF. Now it is not an assumption/implicit it is codified law/explicit.

In that way, you are correct, nothing has changed other than implicit law (2001 aumf) becoming codified(ndaa).

Again, for comprehension's sake, the part you are not understanding is that the president never asked for more power to militarily arrest and indefinitely detain us citizens on us soil, they already beleived they have the right, and that was the right that Feinstein tried to limit, but FAILED.

Though the president wanted(veto threat) the executive to have the right to either military detain indefinitely and the option for due process with regards to us citizens on us soil, thus the exclusion for Mandatory indefinite detention for american citizens in the REQURIEMENT section - 1032.



http://thenewamerican.com/usnews/constitution/10230-feinstein-introduces-due-process-guarantee-act

[BzaDem]

31. If all you are saying is that the president's power wasn't expanded over the implicit law,

then that is my point.

However, while the executive might claim whatever it wants, the courts have not recognized the right to detain any US Citizen arrested in the United States. In fact, there is very good reason to believe that they would not recognize such a right. The fourth circuit held that the executive did have such a right, but the Bush administration was so afraid of the Supreme Court overruling that ruling that they transferred Padilla to the criminal justice system (to moot the issue).

In fact, the probability of the Supreme Court rejecting such a right is close to 100%. Why? Because in Hamdi (a case involving a US Citizen captured literally on the battlefield in Afghanistan), Scalia said that Hamdi was entitled to a full criminal trial with all protections citizens are afforded in civilian court. Scalia would certainly rule the same way for someone not even captured on a battlefield (since for someone captured in the US, the rights afforded could only increase), and the 4 liberal justices would almost certainly side with him. (Kennedy would probably also join in.)

If the US tried to arrest someone else like Padilla, it would go to the Supreme Court again, and they would rule that the executive had no such right. The point of conference report section 1021e is that NOTHING in 1021 (or by reference, 1022) changes current law on the subject of detention by citizens. Since under the previous law, the Supreme Court would have almost certainly rejected any claimed right to indefinitely detained citizens captured in the US, they will under the current law as well.

[zeljko67]

34. We agree.

But as it stands now the LAW of the land is for Indefinite Military Detention of us citizens on us soil with an option for due process. And when enforced in the future it will be challenged, no doubt about it. But I for one will not assume that it will be defeated, after all, 55 senators voted against Feinstein's amendment to explicitly exclude us citizens and aliens arrested on us soil from military detention.

Though I wonder, how does one go about challenging a law when one has no right to an attorney and has been placed in a jail half way around the world.

Either way, Obama should have never even considered such a law, in fact he should have been doing everything in his power to make the patriot act and 2001 AUMF consistent with the US constitution as he actually promised.

[Major Nikon]

19. That was not the intent of what you're calling the "back-up amendment"

The Feinstein amendment changed the existing legislation from requiring US citizens to be held by the military, to providing the option to the executive branch to try them in a civilian court. Obama threated to veto the legislation if it had the mandatory military detention in place for US citizens. So the amendment didn't insure the President's power wasn't expanded, but rather insured it wasn't reduced.

[BzaDem]

28. It ensured that the President's power was not exapnded or reduced.

That's the text of the amendment. Without the amendment, some would probably argue that it expands the executive's authority.

[Major Nikon]

33. I don't see how anyone could make that argument

Without the amendment anyone found to be covered by 1031 (now 1021) would be REQUIRED to be held by the military. This includes US citizens which would have tied the executive branch's hands. With the amendment they now have all options back on the table for US citizens and legal residents.

[BzaDem]

35. But the reason you are wrong is that "anyone found to be covered by 1021" EXCLUDES US Citizens,

because of 1021e.

1021e says:

"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."

And 1022 (the section about the requirement for military detention) specifically applies only to a subset of those covered under 1021 (which itself excludes US Citizens due to 1021e).

So when you say that without the amendment, a US Citizen would have to be held in military detention, that is your error. Without the amendment, there would be no requirement for military detention for US Citizens, because of 1021e.

[Major Nikon]

36. No

The reason why that clause is in 1021 is so the AUMF may still be used by the executive branch to determine who is "covered by" the use of military force, which is one of the things the Obama administration demanded from congress.

It sounds like you are trying to read and interpret the legislation without regard to why they are there in the first place. You might want to put some effort in intent if you really want to understand what the new legislation does and does not do.

[BzaDem]

39. What I am saying is not wrong, and it is not a hard question.

Courts do not look at the intent behind legislation if the text is unambiguous. In this case, the text is completely unambiguous. If a US Citizen could be legally placed in indefinite detention before the NDAA, they can continue to be placed in indefinite detention after the NDAA. If a US Citizen could not be legally placed in indefinite detention before the NDAA, they can NOT be placed in indefinite detention now that we have the NDAA. That is precisely what 1021e says.

Section 1022 expressly only applies to people "whose detention is authorized under section 1021." That is the ENTIRETY of section 1021 -- including section 1021e.

Just so we're clear, here is the entire paragraph from 1022:

"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."

1021e (part of section 1021) specifically says that if a US Citizen's detention could not be authorized prior to the NDAA being enacted, then 1021 does not authorize that person's detention.

Since 1022 only applies AT ALL to someone authorized under 1021, and 1021 does not authorize any US Citizen that could not be authorized before the NDAA, the NDAA does not provide any authorization (that didn't already exist) to detain US Citizens. This is not ambiguous.

[Major Nikon]

40. Courts do not look at the intent behind legislation if the text is unambiguous.

How would a court ever know what laws were being specified in 1021 if they didn't look at intent? Do you really think congress meant every single law that's on the books by the text in 1021? Obviously they had specific laws in mind which weren't specified. That's why we have a Congressional Record. Had you bothered to read the committee notes, you'd know exactly why the language in 1021 is what it is and why it has nothing to do with what you allege.

[BzaDem]

42. If they didn't specify something, that would indeed be ambiguous, and they would look to intent.

But in this case, for the specific issue I am addressing, the issue is not ambiguous. 1021e is a restriction on the application of the rest of 1021 (regardless of what the rest of 1021 says), and 1021e specifically says that 1021 does not affect any authority to detain US citizens.

In general, if A is ambiguous, and B is a restriction on the application of A that is unambiguous, B does not all of a sudden become ambiguous. The courts would look to intent to figure out the ambiguities in A, but they would not look to intent to figure out if an outcome explicitly and unambiguously foreclosed by B was somehow really not foreclosed.

For example, the same would be true if section 1021 limited the production of "delicious apples" to 5/day, and section 1021e said:

"Section 1021 shall not be construed to limit the production of granny smith apples."

In this case, if the Congressional Record contained 435 statements of representatives saying how delicious granny smith apples were, and 100 statements of Senators saying the same thing, the bill would not limit production of granny smith apples (despite the clear intent), because 1021e in this case would unambiguously foreclose that interpretation.

Whatever ambiguities exist in 1021, the fact that 1021e prevents any change in authority to detain US Citizens is clear, explicit, and unambiguous.

[Major Nikon]

57. Obviously you are going to believe whatever you want to believe

I'm done playing obfuscation games.

Cheers!

[zeljko67]

59. Funny, I just said the same thing to him. NT.

[zeljko67]

37. You're making a mistake again.

Again US citizens on us soil can be considered "any person" "covered" and as such detained militarily indefinitely, and that in no way changes existing laws and authorities (2001 aumf) relating to the detention of us citizens and such.

Then 1022 goes on to give the president the option either militarily detain someone or process him/her through the civilian courts.

[BzaDem]

38. Did you even read 1021e? Your post is blatantly wrong.

1021e modifies "who is covered" under 1021b.

Section 1022 expressly only applies to people "whose detention is authorized under section 1021." That is the ENTIRETY of section 1021 -- including section 1021e.

Just so we're clear, here is the entire paragraph from 1022:

"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."

1021e (part of section 1021) specifically says that if a US Citizen's detention could not be authorized prior to the NDAA being enacted, then 1021 does not authorize that person's detention.

Since 1022 only applies AT ALL to someone authorized under 1021, and 1021 does not authorize any US Citizen that could not be authorized before the NDAA, the NDAA does not provide any authorization (that didn't already exist) to detain US Citizens. This is not ambiguous.

[zeljko67]

44. 1021e specifically includes US citizens on US soil

1021 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

And again, the reason that is so is due to the fact that the 2001 AUMF already authorizes such detention for American Citizens andas such indefinite military detention of US citizens does not affect existing law or AUTHORITIES(2001 aumf).

Therefore the requirement in 1022 does consider US citizens because THEY ARE NOT EXCLUDED FROM 1021.

I see you cut short the definition of "covered persons" Here is the full BROAD version for information's sake.
1021 b
"covered Persons"
(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.

[BzaDem]

46. Let's say a US Citizen could be indefinately detained under the AUMF.

In that case, what are we arguing about? The government ALREADY can detain that person, whether Obama vetoed or signed the NDAA.

The only relevant case is for a US Citizen who could NOT be indefinitely detained under the AUMF. And in this case, 1021e specifically FORECLOSES the application of 1021 (and 1022, since it relies on 1021) to that person.

There is nothing else to this.

If the US government could already detain that person, than this entire discussion is pointless. And if the US government could not already detain that person, then 1021e clearly means that the NDAA does not authorize the detention of that person.

Which of the above two sentences do you disagree with?

[zeljko67]

49. The point is that now it is CODIFIED Explicitly into LAW.

As to before with the 2001 AUMF it was assumed or implicit...That is the difference.

Therefore before the US government could implicity detain a US citizen, now they can Explicitly.

[BzaDem]

51. But it is only codified into law for someone that qualified BEFORE it was codified into law.

That sentence sounds ridiculous, but it is true. The "codification into law" (for US Citizens) is simply a statement of the form: If X, then X. It is a tautology -- it is irrelevant. It is not a normal "codification into law," that might actually affect a court decision.

In other words, let's have a hypothetical. Let's assume that Bob is a US Citizen and he is indefinitely detained next year (after the NDAA is signed). A court is now reviewing his detention.

The first step to the court's decision will be to ignore the NDAA entirely (and ignore anything it codifies into law), and ask the following question: Did the government have the power to detain this person before the NDAA passed?

If the answer to that is yes, then the NDAA is irrelevant. Yes, it codifies it into law, but it only codifies it into law because the court found that the detention was valid before it was codified into law.

If the answer to that is no, the government must charge or free the person. Nothing the NDAA codifies into law matters, because of 1021e.

Let's say the judge says yes (and all appeals courts agree). Then, 10 years later, he files another petition, and appeals again to the US Supreme Court. The US Supreme Court can now say "it now appears to us that his detention was not authorized before the NDAA. According to 1021e, it can't be authorized after the NDAA either. you are free to go."

So the codification into law does nothing. The original inquiry of pre-NDAA-authorization-to-detain must be made with respect to every US Citizen from now on. Whether "implicit law" covers the case is still the ultimate question. Not a single US citizen for which there was no authorization before could possibly be detained now.

[zeljko67]

45. And to prove beyond any resonable doubt that citizens are INCLUDED in 1021.

Carl Levin explaining why Citizens are included:

http://www.youtube.com/watch?feature=player_embedded&v=8_ysdsxF3eo

[BzaDem]

47. Carl Levin is talking about a different case.

He is talking about a case where someone could have been indefinitely detained under the AUMF before the NDAA. In that particular case, the amendment that the administration got removed would have removed that PREVIOUS authorization. So in the resulting NDAA that passed, 1021 does indeed apply to that US Citizen (as you pointed out), but this doesn't matter, because the authorization to detain was there LONG BEFORE the NDAA ever passed. The NDAA didn't change anything for that person.

I am talking about an entirely different case. I am talking about a hypothetical US citizen who could not have been indefinitely detained under the AUMF before the NDAA. In this case, 1021e specifically bars the application of 1021 (or 1022 by reference) to that person.

[zeljko67]

50. No, he is explicitly talking about 1031/1021.

They had language that would explicitly exclude a us citizen from Military detainment in one of the originas..The executive made them take it out.

Do you think Al Franken is wrong when he says the following:

On December 15, 2011, the Senate passed a bill including provisions on detention that I found simply unacceptable. These provisions are inconsistent with the liberties and freedoms that are at the core of the system our Founders established. And while I did in fact vote for an earlier version of the legislation, I did so with the hope that the final version would be significantly improved. That didn't happen, and so I could not support the final bill.

The bill that passed included several problematic provisions, the worst of which could allow the military to detain Americans indefinitely, without charge or trial, even if they're on U.S. soil. Another provision requires the military-not civilian law enforcement agencies like the FBI-to detain anyone that it believes to be a member of al Qaeda or an associated force and who helped plan or carry out an attack on the U.S. or its allies. At their core, these provisions will radically alter how we investigate, arrest, and detain individuals suspected of terrorism. This leaves it unclear what role the FBI and other law enforcement agencies are to play, despite their proven effectiveness at preventing attacks on our homeland since September 11th. This comes despite deep concerns voiced by FBI Director Robert Mueller before the Senate Judiciary Committee, of which I'm a member. What's more, these provisions could undermine the safety of our troops stationed abroad.

During consideration of the National Defense Authorization Act, I expressed my strong opposition to these provisions on the floor of the Senate. I filed two amendments to strip each of the provisions, but unfortunately neither received a vote. I also voted in favor of several amendments that would have made significant improvements to the provisions; none of these passed..."

[BzaDem]

52. He is wrong with respect to US Citizens, and correct with respect to non-citizens.

When he says:

"the worst of which could allow the military to detain Americans indefinitely, without charge or trial, even if they're on U.S. soil,"

he is wrong. If an American could be detained indefinitely before the NDAA, then the military can indeed detain him indefinitely after the NDAA, but that isn't because of the NDAA. That is because of the AUMF (or whatever previous law allowed the detention). The government could have detained that person even if Obama shredded the NDAA into a thousand pieces and burned them all. On the other hand, if an American could NOT previously be detained before the NDAA, the express words of 1021e prevent him from being detained now.

He is correct (for non-citizens) and wrong (for citizens) when he says

"Another provision requires the military-not civilian law enforcement agencies like the FBI-to detain anyone that it believes to be a member of al Qaeda or an associated force and who helped plan or carry out an attack on the U.S. or its allies."

1022 does indeed force military detention for a subset of people authorized under 1021. But that does not apply to a single US Citizen, for 1022b(1) says the following:

UNITED STATES CITIZENS.—The requirement to detain a person in military custody under this section does not extend to citizens of the United States.

So if a US Citizen was NOT eligible to be indefinitely detained before the NDAA (such as by the AUMF), he is not authorized under 1021 and therefore 1022 doesn't apply at all. If a US Citizen IS eligible to be indefinitely detained before the NDAA, then 1022b(1) prevents 1022 from applying to him.

[zeljko67]

58. He is not wrong, he knows the issue inside and out as does every other politiican who voted against

It has been explained to you how Citizens are included but you aren't able to grasp the obvious. There is really nothing more that I can say to you because you will just ignore and deny, so good luck with that..

[BzaDem]

60. That's fine. My line-by-line analysis speaks for itself. n/t

[Tx4obama]

3. I'm not understanding why in the OP the Section numbers are 1021/1022 and not 1031/1032

What's up with that?

Anyone have an explanation?

[zeljko67]

4. Just a typo. Nt.

[BzaDem]

6. I believe the relevant section numbers are 1021/1022.

http://democrats.rules.house.gov/112/text/112_hr1540conf_txt.pdf

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.

Sec. 1022. Military custody for foreign al-Qaeda terrorists.

There are sections 1031/1032, but they don't seem directly relevant to this.

[Tx4obama]

8. The two same Sections that are in your OP but in The SENATE's version of the bill are 1031 & 1032

Your OP is linking to and showing The HOUSE version and apparently The HOUSE must have changed the number to 1021 and 1022.

When the Feinstein amendment passed in The SENATE - " clause (e) " was added to 'Section 2031'.

I don't understand why The Senate and The House have different Section numbers - Hmmm...

Perhaps The House has numbered their sections incorrectly?

[SixthSense]

10. They have different bills in the House and Senate

When they don't pass the same text for the same bill, they have a reconciliation meeting to hash out the differences, then each chamber votes on the reconciled bill, which, if passed, gets sent to the President for signature.

[Bolo Boffin]

7. 1021/1022 are the final numbers in the conference report

1031/1032 were the numbers from the bills before that point.

[Tx4obama]

9. Okay, thanks. Looks like the 'text' of those two sections is still exactly the same as before :) n/t

[piratefish08]

11. the President should have the right to detain anyone anywhere? wow. I always thought that was

the Justice Dept.

who knew?

[dawg]

12. I'm just being consistent about this.

I know I would have opposed it under Bush, so I oppose it under Obama as well.

[99Forever]

13. I see...

.. so this assault on personal rights and liberty isn't any worse than previous assaults on personal rights and liberty.


Got it. Thanks.

[frylock]

15. and i voted for a "constitutional scholar" in the HOPE that shit like this would be rolled back..

instead, i wasted my vote on some guy that seemingly goes out of his way to validate bush-era policy.

[Robb]

17. I don't believe that.

I don't believe you voted for Obama. It just doesn't seem that likely.

[Robb]

25. That's fine. You don't have to do anything.

Just my opinion.

[SidDithers]

56. +1...nt

Sid

[Tierra_y_Libertad]

16. Where is the "suspected" part? Or, are all "detainees" previously convicted?

Are all the "detainees" now being held at Guantanamo convicted?

I find the idea of detaining people indefinitely on suspicion repugnant in a supposedly democratic society.

[gratuitous]

18. That goddam Fifth Amendment

"No person shall be . . .deprived of life, liberty or property without due process of law." Apparently that doesn't mean what it says, or is just some quaint leftover language from another time that doesn't apply to the fast-moving, modern world of today.

Fuck your due process! The law is whatever we say it is. 9/11 changed everything.

[Tierra_y_Libertad]

23. Yeah. Those saps back in 1787 didn't understand modern politics and the "real" world.

[Major Hogwash]

53. Did they have a nuclear device in 1787??

To clarify, I use the double question mark to highlight how stupid my question is, when made to a comment that I consider irrelevant.

In case you wondering, that's not a typo.

[Major Nikon]

26. 9/11 didn't change that

There was actually a case during WWII where at least one citizen was convicted via military tribunal for acts of sabotage (or conspiracy, I can't remember). FDR was President at the time. Much of the current legislation like the AUMF uses that precedent.

[bhikkhu]

48. The difference comes from the war authorization

...prisoners of war are traditionally held indefinitely, until the end of hostilities. There are procedures (detailed in this bill as well - section 1036) and recourse to challenge detention, but its a whole different system.

I think the focus should be on ending the war, and would like to see that be a large issue in the upcoming elections.

[uponit7771]

20. New site, old bashers

[Major Nikon]

22. Not true

If you look at the "Covered Persons" section, it greatly expands who is eligible to be detained indefinitely without trial over the AUMF.

[BzaDem]

27. But it does not expand who can be obtained according to the judicial and executive's interpretation

of the AUMF. In fact, in a somewhat technical way, it slightly narrows the set of people that are "covered" from the DC Circuit decision that broadly interpreted the AUMF.

[Major Nikon]

32. I don't see any way you can think that

This is what the AUMF said:

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

This has now been replaced by:

[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.

The AUMF specified anyone detained must have some sort of tie to the 9/11 attack. Gone now is this requirement. So even if you could say the AUMF enabled a "covered by" creep in the courts, imagine how much more creep in the courts you'll get from this legislation. Furthermore, at least the AUMF could be effectively sunset once those responsible for 9/11 were all pretty much killed or brought to justice. Now "indefinite detention" has no such sunset. For as long as someone picks up arms and claims to be part of Al-Qaeda, the Taliban, or dog knows what other organization they come up with (none of which have any formal structure in the first place). The NDAA now effectively makes the so-called "War on Terror" a permanent fixture.

[BzaDem]

41. There are two categories here.

For US Citizens, permanent residents, and non-citizen non-resident people captured within the United States, the law specifically (1021e) says that it does not affect the state of the law. So courts will continue to look to the state of the law prior to the NDAA to determine questions about US Citizens.

For non-US-Citizens, you are absolutely correct that the statutory language is broader. My entire point was that this reflects nothing more than a codification of the "covered by" creep that the courts have already affirmed over and over again. It does not go beyond what the courts have already held. In other words, anyone who could be detained (and approved by a court) before the NDAA can be detained afterwards, and anyone who could not be detained before cannot be detained afterwards.

You bring up 2 points to argue against this. The first is that you say that there may be more "covered by" creep now. But section 1021 really refines the AUMF. The original AUMF basically applied to people who committed 9/11, belonged to organizations that committed 9/11, or belonged to organizations that aided those who committed 9/11. The new law (section 1021) replaces all that with "al-Qaeda, the Taliban, or associated forces." Since the new resolution makes the old resolution more specific (rather than less), it is hard to see where creep could come from. Both al-Queda and the Taliban clearly were covered under the old AUMF, so the only part in question is is "associated forces." But that doesn't seem any vaguer than the previous resolution, which didn't even specify the major forces at all. A force "associated" with al-Qaeda or the Taliban easily fit under the previous court's interpretation of the AUMF.

In fact, the language actually narrows the DC Circuit's interpretation. The DC Circuit used the term "knowingly supported" in its interpretation (with no requirement of that support being substantial); this legislation now requires that this support be substantial. Since this is a refinement, there is no way that a court could rule out the "substantial" requirement out of the statute.

Your second point is that the original AUMF could have been sunset. But the original AUMF still applies even if the actual people responsible for 9/11 are gone, since it also applies to anyone in any organization who was responsible for 9/11 (or aided those responsible). So it doesn't appear that the AUMF has the graceful sunset that you indicate.

The one way that this bill could have expanded authority is if the entire current DC Circuit (and Supreme Court) retires, and is replaced by judges/justices who dramatically scale down their original interpretation of the AUMF. That just doesn't seem to be a realistic prospect though. Ultimately, while the statutory language has indeed been broadened, it seems that this will have little to no practical effect, in that anyone eligible for detention now was almost certainly eligible for detention before.

[Major Hogwash]

54. We all knew this already.

Those of us who were paying attention, that is.
But, I appreciate your efforts here to straighten it all out for the record.

Evidently this weekend a lot of people didn't even realize that the defense bill, that had this NDAA amendment attached to it, was passed in both the House and the Senate after their respective committees worked out the differences between the two bills.

[dawg]

24. I agree that it doesn't change anything.

Imprisonment without due process is illegal, no matter what the Congress passes and the President signs. Just because the courts support extralegal activities does not make them right.

[MFrohike]

55. Youngstown Steel

The proper name is Youngstown Sheet & Tube, but I learned it as Youngstown Steel. Go back and read Justice Jackson's concurrence. The executive is at the apex of its powers when acting with an express grant from Congress. That is the point of codifying the authority to detain. It removes the uncertainty from the Bush-era claim of inherent powers of the executive.

Oh, go back and read 1022. Note that it says that American citizens are not required to be detained indefinitely like the other named classes, but also note that it does not explicitly prohibit such detention, either.

[BzaDem]

61. 1022 says that only those authorized under 1021 can be detained. 1021 says expressly that it is not

codifying any authorization to detain a US Citizen that was not already permitted.

So while I am well aware of Jackson's concurrence, Jackson's concurrence would only apply here if 1021e was not in the law. The entire purpose of 1021e is to prevent the executive from using 1021 and 1022 to justify the detention of a US Citizen. They have to justify it with some other law. Notwithstanding the deniers here, that's what 1021e says.

[MFrohike]

62. I was wrong

Section 1032 (b)(1) from s.1867:

(b) APPLICABILITY TO UNITED STATES CITIZENS
9 AND LAWFUL RESIDENT ALIENS.—
10 (1) UNITED STATES CITIZENS.—The require
11ment to detain a person in military custody under
12 this section does not extend to citizens of the United
13 States.

The requirement does not extend to citizens. That is not the same thing as prohibiting the military detention of citizens. It may be poor drafting, which is always possible, but if it is poor drafting, it clearly needs rewriting so that a court doesn't take the plain text of the statute and allow discretionary detention.

1031(e) is restricted to section 1031. There is no provision in 1032 that references 1031 to expressly prohibit the detention of citizens.

Jackson's concurrence is applicable in this situation because Hamdi v. Rumsfeld allowed for "alternative" methods of challenging the status as a detainee, but suggested, as I recall, that such methods needed to be created. In this case, 1031 and 1032 create a procedural framework following Hamdi. This is important because Bush claimed that his authority of detention was derived from the inherent powers of the executive, while citing Quirin as prior justification. Jackson is important here because this statute will give the executive that necessary legislative enabling.

[BzaDem]

63. "There is no provision in 1032 that references 1031" -- YES there is.

Here is the conference report.

http://democrats.rules.house.gov/112/text/112_hr1540conf_txt.pdf

The sections were renumbered from 1031/1032 to 1021/1022.

Here is the beginning of 1022b:

"The requirement in paragraph (1) shall apply to any person whose detention is authorized under section 1021 who is determined—"

That is your reference right there. 1022 does not apply at all to someone not authorized under 1021.

1021/1022 do not create any procedural framework as it relates to Hamdi, because 1021 (and 1022 by the above reference) specifically say that 1021/1022 do not authorize anyone to be detained who was not already authorized (before the NDAA) to be detained.

[MFrohike]

64. It's not a bar

1021 doesn't bar the detention of citizens, it merely says it does not affect existing law. Given that citizens have been indefinitely detained, Jose Padilla says hi, it has no positive impact on this situation. The "requirement" of 1022 is just that, a requirement. There is a world of difference between required action and permitted action. All the section you cited confirms is that DOD is not required to detain American citizens. Whoopee.

I think you may be right that Hamdi is not relevant because I don't see references to a coherent framework for challenging detention (Hamdi is about the right to challenge detention, not the underlying power to detain).

[BzaDem]

65. That's what I am saying. It doesn't bar -- it merely ensures it does not expand authority under

existing law.

Therefore, either it was authorized under pre-existing law (in which case nothing changes for a US citizen whether he signs or vetoes the bill), or it wasn't authorized under existing law (in which case it is not authorized under the NDAA due to 1021e, and the executive therefore doesn't get "Jackson-deference" ).

No US citizen can be detained now that couldn't be detained before.

[MFrohike]

66. Well, hell

Don't I feel dumb now.