Military NOT Authorized To Indefinitely Detain US Citizens Under The NDAA

[SunsetDreams]

Actual Bill:

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

p. 362

(b) APPLICABILITY TO UNITED STATES CITIZENS
16 AND LAWFUL RESIDENT ALIENS.—
17 (1) UNITED STATES CITIZENS.—The require18
ment to detain a person in military custody under
19 this section does not extend to citizens of the United
20 States.
21 (2) LAWFUL RESIDENT ALIENS.—The require22
ment to detain a person in military custody under
23 this section does not extend to a lawful resident
24 alien of the United States on the basis of conduct
25 taking place within the United States, except to the
VerDate Mar 15 2010 01:53 Nov 16, 2011 Jkt 019200 PO 00000 Frm 00362 Fmt 6652 Sfmt 6201 E:\BILLS\S1867.PCS S1867 tjames on DSK6SPTVN1PROD with BILLS
363
•S 1867 PCS
1 extent permitted y the Constitution of the United
2 States.

Letter from Senator Bennet:

Thank you for contacting me regarding the provisions addressing detainee matters in the National Defense Authorization Act (NDAA) for Fiscal Year 2012, S. 1867. I appreciate hearing from you.

As you may know, the Senate recently debated several NDAA provisions addressing detainee matters. One provision, Section 1031 of the bill, attempts to codify the President’s authority to detain members of al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States. As requested by the Obama Administration, Section 1031 contains a provision explicitly clarifying that it does not expand the President’s existing authority to detain. A second provision, Section 1032, requires military custody of al-Qaeda members who attack or make plans to attack the United States. It is important to point out that, under this provision, the Executive Branch has the flexibility to keep a covered detainee in civilian custody, pursuant to a national security determination, or to transfer a military detainee for trial in the civilian courts. The bill also includes provisions relating to the transfer of detainees held at Guantanamo Bay.

Many had concerns that the detainee provisions in the NDAA amounted to a major shift in U.S. policy. Some news reports characterized the provisions of the bill as potentially allowing the indefinite detention of any U.S. citizen for any reason. Let me clearly state that the bill does not authorize any such action. In fact, by codifying the specific authority of the President, Congress has reengaged on a very important national security issue and attempted to clarify what the President can and cannot do. This is a noteworthy departure from prior post-9/11 Congress which have not come to consensus on a detainee legal framework.

Nevertheless, I am concerned that the detainee provisions could raise questions regarding the process by which the Administration detains and prosecutes members of al-Qaeda who attempt to attack the U.S. For example, we must ensure that the military custody provisions do not hamper the Administration’s ability to prosecute a detainee in civilian courts if it determines that this is the most appropriate venue.

Senator Mark Udall from Colorado offered an amendment to the NDAA that would have removed the underlying provisions addressing detainee matters. Instead, it would have required full participation from the Administration and the Senate Armed Services, Judiciary, and Intelligence committees prior to legislation codifying detainee policies. Due to my concerns with the provisions, I supported Senator Udall’s amendment. Unfortunately, it was defeated by a vote of 38 to 60.

I also supported an amendment introduced by Senator Dianne Feinstein of California to clarify that Section 1031 does not affect existing law or authorities relating to the detention of U.S. citizens, lawful resident aliens of the U.S., or any other persons who are captured in the United States. Senator Feinstein’s amendment passed handily.

Given the complexity and importance of this issue, and the heated rhetoric and confusion about the actual wording of the detainee provisions, I invite you to read them for yourself. You can find them at page 426 of S. 1867, which you can access here:

The overall bill, including the language of Senator Feinstein’s amendment, makes it abundantly clear that the detainee provisions do not affect existing law relating to the detention of U.S. citizens. In addition, I plan to work with the Administration to ensure that it has the flexibility to prosecute detainees in the most effective ways possible. In the end, I voted yes on the overall bill, which sets annual pay for our troops and provides the tools that keep them safe. The NDAA passed the Senate with overwhelming bipartisan support (93 to 7) and must now be reconciled with the House version of the NDAA.

I value the input of fellow Coloradans in considering the wide variety of important issues and legislative initiatives that come before the Senate. I hope you will continue to inform me of your thoughts and concerns.

For more information about my priorities as a U.S. Senator, I invite you to visit my website at Again, thank you for contacting me.


Sincerely,

Michael Bennet
United States

[SidDithers]

1. K&R. Facts are good...

Good job helping to counter some of the wild speculation.

Sid

[SunsetDreams]

27. No probem,

I like facts.

[gratuitous]

2. Required? No. Authorized? Read it again.

There's a little gap there folks would be well advised to contemplate.

[SunsetDreams]

7. I see no gap, it's unconstitutional.

[rhett o rick]

15. Just because you (and I) believe it's unconstitutional, doesnt mean they dont do it.

I believe courts have ruled in favor of Bush when he "unconstitutionally" arrested and detained Jose Padilla.

[boxman15]

9. From what I've read,

it appears that the bill does not apply to Americans, at least those here within the borders. It could be interpreted that the military can capture Americans abroad, but that is up to debate.

It leaves the question of indefinite detention for American citizens up to the courts to decide. So at least for now, we're OK. I'm hoping most courts will side with the Constitution. Not a guarantee anymore, unfortunately.

Even if no Americans can be captured, whatever happened to giving EVERYONE due process?

[Luminous Animal]

3. The military is not REQUIRED to detain U.S. citizens indefinitely

but it CAN indefinitely detain U.S. citizens when directed to do so by their Commander in Chief.

[SunsetDreams]

13. "does not extend to citizens of the United States."

[rhett o rick]

19. You are cherry picking.

He stated, "makes it abundantly clear that the detainee provisions do not affect existing law relating to the detention of U.S. citizens. "

DO NOT AFFECT EXISTING LAW. We need to know what the President thinks the existing law is. Remember the last President thought the existing law allowed him to arrest and detain American citizens indefinitely and that interpretation hasnt been stricken down but the courts.

[SunsetDreams]

26. Not cherry picking however you are inserting lines that do not exist

and assuming this President will ignore the Constitution.

If you have doubts about what the President thinks, perhaps you could write him a letter?

The law is clear, it is Unconstitutional to do so.

[rhett o rick]

32. Presidents all interpret the Constitution.

President Bush interpreted the Constitution to allow him to arrest and detain American citizens. He did it and his interpretation has not been struck down by the courts. Therefore that interpretation stands. And maybe Obama wont use or abuse that interpretation but maybe the next President will. It has been made clear that this bill doesnt expand on this interpretation but it also doesnt rectify this interpretation.

I agree that the arrest and indefinite detention goes against the Constitution but legally it's not unconstitutional until the courts say it is.

[Zhade]

62. He already had an American teenager assassinated.

So, your point?

[Luminous Animal]

20. The REQUIREMENT does not extend to U.S, citizens.

The President will retain the right to decide otherwise. This is what the controversy between the executive and the legislative branches has been from the beginning. Presidential freedom... not civil rights.

[gratuitous]

28. Read it one more time . . .

The requirement for indefinite detention does not extend to citizens of the United States. That's different from an authorization to detain someone indefinitely. They might do it anyway, even if they're not required to do so.

[SunsetDreams]

30. I read it...

without inserting lines that do not exist.

[gratuitous]

33. What doesn't exist? From your own post . . .

"The requirement to detain a person in military custody under this section does not extend to citizens of the United States." What line doesn't exist in your world? Because the plain language refers to the "requirement" not extending to citizens of the United States. The authorization for indefinite detention is still there, and is permitted even if it's not required.

It's starting to sound like the old joke: How many legs does a dog have if you call his tail a leg? Four. Just because you call his tail a leg doesn't make it a leg. Just because you want to pretend the authorization doesn't exist because it's not required doesn't make the authorization go away.

[themadstork]

36. you're reading it wrong, or in the wrong context anyway

they're using requirement in the sense of 'criteria' or 'eligibility,' not 'directive' or 'command'.


It says US citizens are not eligible for the military custody, basically.

[gratuitous]

42. Thank you, your honor

Unless, of course, you're not a U.S. District Court Judge, in which case that's just, like, your opinion, man.

[themadstork]

53. actually on another look i was wrong

The law authorizes military detention for any covered person but does not make it a requirement for citizens etc. If they wanted to do what i suggested they would have disallowed citizens in the definition of covered persons.

i guess thats consistent with the o admin thinking it is their part to decide whether a citizen is funneled into civilian trial or military holding.

[Dreamer Tatum]

4. It wasn't that many years ago that we wouldn't have drawn the distinction

between a US citizen and a non-US citizen. Anyone remember that? Preferring due process for anyone prosecuted by the United States?

[RiffRandell]

5. Where were all the critics when I was in jail a couple months ago?

Seriously.

Granted it wasn't for terrorism, but the charges were reduced last week as the cops had no case.

[ProSense]

6. It

"does not extend to citizens of the United States."

...doesn't get any more clear than that.

Seriously, there is way too much hyperbole and distortion driving these debates. I said earlier that some people might be interpreting the language broadly, but now it's clear that there is a disconnect.

Are people continuing to make the same claims even after changes are made?

[FiveGoodMen]

17. Yet.

[Luminous Animal]

24. The REQUIREMENT does not extend to U.S. citizens.

The option still exists and at the discretion of the executive branch.

Doesn't get any more clear than that.

[ProSense]

45. So

The REQUIREMENT does not extend to U.S. citizens.

The option still exists and at the discretion of the executive branch.

Doesn't get any more clear than that.

...people are up in arms because it doesn't extend to U.S. citizens?

The option still exist for a waiver for national security, which I assume applies activities abroad, but it still does not extend to U.S. citizens and lawful residents based on actions within the U.S.

That's clear.

[teddy51]

8. Thanks for posting this, seems to clarify much concern about NDAA. n/t

[rhett o rick]

12. It does not say anything about what the President's current authority is. It meary states that he

isnt expanding it. We need to know what the President thinks his current authority is before we codify it.

[teddy51]

14. The problem with that is, it will depend on the President of the day. But I see

Senator Feinstein"s amendment as making certain that US citizens are protected under current law prior to this bill.

[rhett o rick]

38. So it would be important to know what current law is. Bush believes current law

allows arrest and detention of American citizens and the courts havent disagreed. That is what is being codified in this law.

[SunsetDreams]

29. My pleasure :)

[MADem]

10. Aw, gee. No more hot-headed outrage over something that didn't happen. nt

[rhett o rick]

11. Very clever wording, but I think this is horrible.

IMHO the President considers that he currently has the authority to arrest and detain American citizens w/o due process. George Bush did it and I believe (would love to get a source) the courts backed him up in the Jose Padilla.

This bill seeks to codify this authority.

"One provision, Section 1031 of the bill, attempts to codify the President’s authority to detain members of al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States. As requested by the Obama Administration, Section 1031 contains a provision explicitly clarifying that it does not expand the President’s existing authority to detain."

All this says is that the Pres isnt seeking to expand the Pres existing authority to detain. It is vital in this discussion to find out exactly what the Pres thinks his current authority is. I believe it has been stated somewhere, but I have no source.

[teddy51]

16. I don't think so, cause I think that Senator Feinstein's amendment address's that. n/t

[rhett o rick]

21. Where can I find the Feinstein amendment? nm

[teddy51]

23. Here ------------>

http://www.democraticunderground.com/?com=view_post&forum=1002&pid=21601

[Luminous Animal]

31. Both Feinstein amendments failed.

[karynnj]

35. The third Feinstein amendment passed 99 - 1

AMENDMENT NO. 1456

I call up my amendment No. 1456, which is the modification.

The PRESIDING OFFICER. The clerk will report.

The legislative clerk read as follows:

The Senator from California proposes an amendment numbered 1456.

Mrs. FEINSTEIN. I ask unanimous consent that the reading of the amendment be dispensed with.

There are others who wish to speak.

The amendment is as follows:

On p 360, between lines 21 and 22, insert the following:

(e) 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.

This was from the Senate record

[Luminous Animal]

47. And it is meaningless. Only courts can construe the law...

[rhett o rick]

37. All her amendment did was clarify that existing law stands.

So if existing law allows the Pres to arrest and detain American citizens, then this bill would codify that existing law.

George Bush interpreted the law to allow that. I see this bill as codifying Bush's interpretation.

[teddy51]

39. Lets face it, this country has not been heading a positive direction for many years.

This piece of legislation certainly just adds another nail to the coffin. I don't think that any US citizen should feel good about it, and I am at a loss as to why our fucked up legislators would vote this into law with a 93-7 vote.

[EFerrari]

18. The text you quote does not say the military is not authorized to indefinitely detain US citizens

and Bennet's claim that it does not affect existing law relating to the detention of U.S. citizens is unsubstantiated. Feinstein's amendment has no teeth, is mush. It will be up to the courts to make that determination.

[SunsetDreams]

25. In that case, I left you and anyone else a link to the actual bill :)

"does not extend to citizens of the United States"

Feel free to read the actual bill.

[librechik]

22. Essentially this just got tossed to the courts to decide individual cases

not that I'm reassured by that.

[rhett o rick]

34. I dont think so. I believe this has already been tested in the courts.

I believe in the Jose Padilla case the courts ruled the president had the power to arrest and detain American citizens.

This NDAA bill seeks to codify that, IMO.

President Bush interpreted the Constitution to allow him to arrest and detain American citizens. He did it and his interpretation has not been struck down by the courts. Therefore that interpretation stands. And maybe Obama wont use or abuse that interpretation but maybe the next President will. It has been made clear that this bill doesnt expand on this interpretation but it also doesnt rectify this interpretation.

I agree that the arrest and indefinite detention goes against the Constitution but legally it's not unconstitutional until the courts say it is.

[rhett o rick]

40. After more research I found that the Padilla case is still in the court system

So we dont know what the existing law is.

[Robb]

44. Hamdi v. Rumsfeld. (nt)

[rhett o rick]

51. Thanks for that. It appears that habeas corpus is alive and well. nm

[librechik]

49. yes, they've been keeping it vague and opaque, which is so worrisome

but there seems to be some protection for citizens if the judge is fair--and that is another problem.

[Luminous Animal]

56. The Fourth Circuit's decision still stands. U.S. citizens

can be indefinitely detained.

[rhett o rick]

61. Doesnt Hamdi v. Rumsfeld reestablish habeas corpus? nm

[Robb]

41. No one likes an I-told-you-so.

[dennis4868]

46. you are ruining...

are hyperspeculation party with the facts...can you please leave DU and let us continue bashing the presidents with non facts...

[former9thward]

48. You are giving your own and wrong interpretation.

I will trust Human Rights Watch over your interpretations.

“By signing this defense spending bill, President Obama will go down in history as the president who enshrined indefinite detention without trial in US law,” said Kenneth Roth, executive director of Human Rights Watch. “In the past, Obama has lauded the importance of being on the right side of history, but today he is definitely on the wrong side.” http://www.hrw.org/news/2011/12/14/us-refusal-veto-detainee-bill-historic-tragedy-rights

[sufrommich]

52. The article you're using says

nothing about detaining U.S. citizens.

[former9thward]

54. Try the ACLU

"Don’t be confused by anyone claiming that the indefinite detention legislation does not apply to American citizens. It does. There is an exemption for American citizens from the mandatory detention requirement (section 1032 of the bill), but no exemption for American citizens from the authorization to use the military to indefinitely detain people without charge or trial (section 1031 of the bill). So, the result is that, under the bill, the military has the power to indefinitely imprison American citizens, but it does not have to use its power unless ordered to do so."

http://www.aclu.org/blog/national-security/senators-demand-military-lock-american-citizens-battlefield-they-define-being

[themadstork]

57. the correct reading, thx

1032 is about when dentention is mandatory

1031 is general authority to detain

anyone quoting 1032 to refute 1031 (as op does) is confused

[joshguitar]

60. +1000 I have been posting

stuff like this all day and have been attacked. Thank you for caring about our 4th amendment

[SomethingFishy]

50. Well that makes it just peachy keen then...

Hey it's all good as long as it's not Americans who's rights we are violating. Fuck the rest of the world.

[themadstork]

55. you're not even quoting from the section that discusses authorization

[joshguitar]

59. +1000 nt

[provis99]

58. and this is why unrec needs to be brought back.

[freshwest]

63. The bill also includes provisions relating to the transfer of detainees held at Guantanamo Bay.

This overrides the hysterical GOP blocking of funding to remove prisoners from Gitmo to the USA for proper treatment here. One way or the other, change will come, whether their shrill media machine likes it or not.