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Tue Dec 27, 2011, 05:54 PM

 

"Where in This Bill does it Grant Authority to Indefinitely Detain US Citizens?"

Seriously, I'm asking. I've seen a lot of hubbub about it, I've seen the exemptions for US Citizens and legal aliens, but for all the hand-wringing and Obama-bashing I have yet to see the part of the bill that grants him that power. Admittedly, I may have missed some of the detailed analysis. Even what I saw and read didn't seem conclusive. I found the gaping hole in the MCA of 2006 (which was subsequently closed), but I haven't seen a big enough loophole in this one except for something vague about being 'on foreign soil'.

Now, before the usual suspects do their very best distortion/spinning/demonizing act, I'd like to make some things very clear so we can weed out the LASPs:

I am NOT in favor of holding anyone indefinitely and without trial or charges. Period.
If Obama signs it, I will be disappointed. I will hope there is an ulterior motive that works in our favor, but it could just be something as politically shrewd as taking the 'soft on terror' argument away from the Repunditcans.

Now, if someone can point us to a solid explanation of just how the bill suspends Habeas Corpus for US citizens as I've been hearing, I'd very much appreciate it.

Thanks.

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Arrow 21 replies Author Time Post
Reply "Where in This Bill does it Grant Authority to Indefinitely Detain US Citizens?" (Original post)
The Doctor. Dec 2011 OP
wildbilln864 Dec 2011 #1
silverweb Dec 2011 #2
The Doctor. Dec 2011 #4
cthulu2016 Dec 2011 #3
The Doctor. Dec 2011 #5
cthulu2016 Dec 2011 #6
cthulu2016 Dec 2011 #7
qazplm Dec 2011 #9
cthulu2016 Dec 2011 #13
Mojorabbit Dec 2011 #14
cthulu2016 Dec 2011 #16
qazplm Dec 2011 #8
cthulu2016 Dec 2011 #15
The Doctor. Dec 2011 #17
zipplewrath Dec 2011 #10
The Doctor. Dec 2011 #18
zipplewrath Dec 2011 #21
On the Road Dec 2011 #19
zipplewrath Dec 2011 #20
patrice Dec 2011 #11
great white snark Dec 2011 #12

Response to The Doctor. (Original post)

Tue Dec 27, 2011, 05:55 PM

1. k&r for answers...nt

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Response to The Doctor. (Original post)

Tue Dec 27, 2011, 05:59 PM

2. K&R

I confess to a lot of confusion, as well, and hope someone who knows what they're talking about provides actual answers.

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Response to silverweb (Reply #2)

Tue Dec 27, 2011, 06:08 PM

4. I'd like to say that the admittedly Libertarian Jonathan Turley is entirely objective,

 


But even though he's usually dead-on-the-money, that doesn't mean he's always objective... or right. Even Paul Krugman went way out on a limb when he said that speculation wasn't causing oil prices to fluctuate. Most economists disagreed with him for a reason.

I read Turley's breakdown, and even that was 'nebulous' about the 'nebulous' nature of the bill.

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Response to The Doctor. (Original post)

Tue Dec 27, 2011, 06:00 PM

3. It does, but it is fair to debate how meaningful that is

sec. 1031 says that anyone anywhere in the world who aids AQ can be detained indefinately. (Under the laws of war.)

There is no exemption for Americans in that section.

It then says that the section does not change any existing law or authority on the question of people captured in America.

So yes, it does lay out indefinite detention at the military or president's discretion, and no, it does not exempt Americans.

If someone want to say that Americans are already exempt under other existing laws or authorities then that's fine! They have an argument to make.

But a lot of widespread defenses of the bill are literally not correct. They may be substansially correct -- i am not weighing in on that.

It grants authority to detain anyone, anywhere who meets either of the two standards of aplicability laid out in that section, and neither standard has anything to do with one's location of citizenship..

I am not an NDAA fan or an NDAA hater, but I'm not going to pretend words have no meaning.

The overall argument that the bill does nothing that is both odious and new may be correct but the speciffic claim that the bill exempts Americans from indefinite military detention is literally incorrect.

It may be a valid argument to say that is not very meaningful in contxt, but not that it doesn't exist in the bill.

The bill does, litterally, authorize detention of anyone who aids AQ within existing law.

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Response to cthulu2016 (Reply #3)

Tue Dec 27, 2011, 06:12 PM

5. Hey, thanks. Not sure of a couple things though:

 


How is the determination of 'aiding Al Qaeda' made?

If it doesn't change existing law about the capture of people on US soil, then that would obviously not supercede current laws.

If the bill has a big enough hole that allows for indefinite detention merely by the accusation of 'aiding AQ' without the opportunity to prove otherwise or require evidence, then it's obviously something that needs to be closed.

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Response to The Doctor. (Reply #5)

Tue Dec 27, 2011, 06:18 PM

6. I believe that is a military or executive determination but I'm always subject to factual correction

We have a "war" against non-state actors who are not a regular military, which makes this all very weird.

In a normal war you capture a uniformed soldier on the battlefield and send him to a POW camp. There is no judicial review of whether he is actually in the German military... it is a determination our military made.

When you apply that to anyone, anywhere in the world that the military determines is part of the enemy being rounded up as a POW then it becomes kind of scary, but you can see the underlying logic of it.

If it is a war then there's an enemy that can be captured and held until the war is over, and that is a military determination.

Sensible in a regular war. Scary in an inregular war with no nations and uniforms.

I posted something today about whether congress saying the laws of war apply to this conflict amounts to a retroactive formal old-fashioned declaration of war. I thought it an interesting question, but nobody else did. no replies.

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Response to The Doctor. (Reply #5)

Tue Dec 27, 2011, 06:29 PM

7. re: your second observation

If there is an existing standard requiring judicial review of a military determination/acusation that someone within the USA is AQ-friendly then that would kick in on its own. If such guarantee exists the bill does not challenge it.

But I get weirded out when people say the bill itself guarantees judicial review.

It doesn't. The bill is agnostic on that.

Now, we know today that a lot of our POWs in Gitmo were actually not taliban. They were not captured in America, though.

Still, I doubt we had any German POWs in WWII who were not actual memebers of the German military or spies for Germany.

When the nature of a war means that you will be rounding people up at random as POWs then human rights demand judicial review to determine that they are actually combatants (!) but our law doesn't seem to account for that.

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Response to cthulu2016 (Reply #7)

Tue Dec 27, 2011, 06:42 PM

9. if it doesn't explicitly exclude judicial review

the Supremes will say they can review it. At least insofar as they are dealing with activities inside the US.

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Response to qazplm (Reply #9)

Tue Dec 27, 2011, 07:21 PM

13. I should have said judicial process or oversight. My bad.

I didn't mean judicial review of the law, but rather a case by case "day in court" for detained POWs to make the government prove that they are really combatants in the war.

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Response to cthulu2016 (Reply #7)

Tue Dec 27, 2011, 07:25 PM

14. I wonder about who does the deciding

I vaguely remember some muslims that were arrested by, I think the FBI for aiding terrorists via a charity. They said they thought the charity was legit. FBI says terrorist front. I don't know how that turned out but that is my concern. They have been calling environmentalists terrorists. Will they use this law to detain these people? Who gets to decide it the group or person is a terrorist? Is this addressed in the bill? I have read so many contradiciting opinions about this bill, I have no idea whether it is as bad as is said or no.
I can't find where to turn on spellcheck on this browser so forgive any errors.

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Response to Mojorabbit (Reply #14)

Tue Dec 27, 2011, 07:29 PM

16. Congress would have to declare war on environmentalism first

The detain and hold forever authority is from the laws of war -- prisoners of war are detained until the end of the war.

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Response to cthulu2016 (Reply #3)

Tue Dec 27, 2011, 06:41 PM

8. usually when a law

says that it doesn't change existing law or authority it is a beacon saying this doesn't change anything in this area. So I think the second part does in fact exempt Americans IN America but may not exempt Americans elsewhere. This jibes pretty well with how we've operated when we've encountered American citizens overseas who were also members of AQ.

I think the bill does exempt Americans within the US but does not exempt them outside the US.

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Response to qazplm (Reply #8)

Tue Dec 27, 2011, 07:27 PM

15. Ahhhh... see what you said there?

"I think the bill does exempt Americans within the US but does not exempt them outside the US."

This is why the conflict over this bill has been bitter. I know exactly what you are saying and am not criticizing, just making a point about the ongoing argument.

The bill does not exempt Americans at home from the 1031 provisions.

But one can reasonably say, "I think Americans within the US but not outside the US are exempt from this bill."

It's a subtle distinction, but if Americans are exempt it is because they were already exempt and the bill says it doesn't change the current state of the law.

When folks have said, "This bill exempts..." it has lead to calumny and strife when others point out that is not true. The bill itself does not, but the overall scheme may have that effect.

In that sense both sides are right. Or, to a pessimist, both wrong.

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Response to cthulu2016 (Reply #15)

Tue Dec 27, 2011, 08:47 PM

17. Whipping out the tinfoil fedora for a mo'...

 


I've often thought of one of the worst-case scenarios for the US being the full corporate/fascist takeover complete with internment camps and all. I know that the politically liberal are the biggest real threat to the establishment while the wingnuts will line up to put their fellow Americans in camps with a 'boo-yah!'.

I long ago imagined the egress of many 'enemies of the state' to far-flung lands where they would continue their work of enlightening those still at home and, failing that, keeping an accurate account of history.

A bill like this would make legal the apprehension and indefinite detention of such expatriated US citizens.

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Response to The Doctor. (Original post)

Tue Dec 27, 2011, 07:10 PM

10. It codifies judicial decisions

The assertion is that the language in this bill takes current judicial decisions about indefinite detentions, and makes them formal law. Prior to this, congress' position was silent, there by making these lower court decisions official and relatively immune from further appeals to higher courts.

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Response to zipplewrath (Reply #10)

Wed Dec 28, 2011, 12:02 AM

18. That's a novel piece of theory.

 

How substantial is it?

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Response to The Doctor. (Reply #18)

Sat Dec 31, 2011, 05:15 PM

21. It's fairly straight forward

Turley, among others, is basically advocating these positions. So does the ACLU.

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Response to zipplewrath (Reply #10)

Wed Dec 28, 2011, 12:46 AM

19. But "Further Appeals to Higher Courts"

would include constitutionality, wouldn't it? How would codification prevent review of the constitutionality of the law? Wouldn't it in fact lay the necessary groundwork for judging whether the law violates the Bill of Rights?

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Response to On the Road (Reply #19)

Sat Dec 31, 2011, 05:11 PM

20. It would be about the intent of congress

The president has asserted powers, not all under the constitution, but also under existing law. The congress, until now, has not explicitly agreed with these interpretations. Now they have.

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Response to The Doctor. (Original post)

Tue Dec 27, 2011, 07:13 PM

11. K&R

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Response to The Doctor. (Original post)

Tue Dec 27, 2011, 07:18 PM

12. K&R

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