The National Defense Authorization Act Bill

Robear wrote:

So, 1032 addresses the "Requirement for Military Custody". It uses the definitions given in 1031. Note that military detentions occur "pending disposition under the law of war" (my bold). All prisoners who are not handed over to US law enforcement or their own countries may only be held until the end of hostilities.

...

Also, remember that the "hostilities" are those authorized by the Authorization for Use of Military Force passed after 9/11. It's not vague; it's limited in public law 107-40 to

(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.

Emphasis mine. There is no time limit for this law of war, there are no end to the hostilities, it specifically since this law of war applies to "future acts" so until time stops at the heat death of the universe and there is no longer a "future" this law of war is going to be in affect. It is physically impossible to attach a longer period of time to this detention.

So, to recap - 1031 and 1032 apply only to people who:

Are caught by the military in hostilities against US forces or installations;
who are determined to have materially supported Al Quaeda or it's partners, been a member of AQ, or participated in an AQ attack on US forces or interests;

I agree that the definition of "considered persons" is pretty solid, if I was confident in everyone involved following the letter of the considered persons thing I wouldn't really be that worried. However we have already seen the erosion of the word terrorist in our national dialect, so I can't be certain that the definitions in 1031.B are as strong as they really seem. 'Materially supported' is probably the part I'm most worried about. If I watch a youtube video of Awlaki and he has an ad on it, then I have literally materially supported Al Qaeda.

who are subject to the law of war (ie, not picked up by the CIA or FBI or pulled off the streets of Iraq or Afghanistan by US forces, or picked up in the US by law enforcement);

I'm not certain of that at all. The 'law of war' doesn't tell the President to use the Military, or the Army, or any other specific organization to fight terror. It says "the President is authorized to use all necessary and appropriate force". In my mind (and I bet the President's mind) that means the Executive Branch, including the CIA, FBI, or local law enforcement.

and who are not American citizens or permanent residents, who will presumably be transferred into the US courts.

It seems that way on first reading, but if you actually parse through 1031.E it doesn't actually protect US citizens on foreign soil.

Here is how it would be worded if it did mean that:

Fictional Subsection wrote:

(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 persons who are captured or arrested in the United States.

Actual Subsection wrote:

(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.

Emphasis mine. That single word makes a huge difference in who is actually being restricted here.

The boundaries are limited - if you can call it that - to people and countries which supported the 2001 attacks. It's intended to authorize the use of *military* force. So in that understanding, it's limited to the areas where military forces are involved - hence the limits in the NDAA about holding captured individuals. As we exit areas of military action *related to the 9/11 attacks* - which could take a while - it's applicability goes away.

As I read it, the War on Terror authorization does not affect the civilian intelligence agencies, except insofar as they are part of the President's branch and subject to his command. An FBI investigation in the US is technically not part of the War on Terror, and would not be under the jurisdiction of 1031/1032 in the NDAA.

Note that it's germaine that we left Iraq and gave up the prisoners we held into one of the four categories described in the Act. Whether you agree with the war there - I didn't - this is a very good sign that things are not going to go down the slippery slope.

There is no time limit for this law of war, there are no end to the hostilities, it specifically since this law of war applies to "future acts" so until time stops at the heat death of the universe and there is no longer a "future" this law of war is going to be in affect. It is physically impossible to attach a longer period of time to this detention.

This may be part of your misunderstanding, in that the law of war is a defined body of law, not an arbitrary phrase. "This law of war" is a weird phrase, because 1031 does not create a "law of war" as you seem to imply.

Under the law of war, detentions end when hostilities end in the area where the person was captured. So, as I noted, in Iraq, when hostilities ended, we held no more Iraqi prisoners in indefinite detention.

I agree that the definition of "considered persons" is pretty solid, if I was confident in everyone involved following the letter of the considered persons thing I wouldn't really be that worried. However we have already seen the erosion of the word terrorist in our national dialect, so I can't be certain that the definitions in 1031.B are as strong as they really seem. 'Materially supported' is probably the part I'm most worried about. If I watch a youtube video of Awlaki and he has an ad on it, then I have literally materially supported Al Qaeda.

Legal language is more definite than colloquial usage. Note that even if you have watched a youtube video with an Al Quaeda ad, you could in some sense be construed as materially supporting. That is not actually enough to be picked up under this law. You'd have to be determined by the government to be a member of Al Quaeda or one of it's supporting groups, or to have planned or participated in an attack by them on US or Coalition forces. (This determination, since you are a US citizen, would have to stand up in court). Then, you'd have to be captured by the US military during hostilities, or in an area subject to the law of war, and furthermore, one that is covered by the Authorization of Use of Military Force, not just any area where there are US troops. And finally, because you *are* a US citizen, you'd not be subject to being held by the military; you'd be transferred to US law enforcement ASAP.

Isn't that kind of a high bar?

I'm not certain of that at all. The 'law of war' doesn't tell the President to use the Military, or the Army, or any other specific organization to fight terror. It says "the President is authorized to use all necessary and appropriate force". In my mind (and I bet the President's mind) that means the Executive Branch, including the CIA, FBI, or local law enforcement.

The President does not control the FBI or local law enforcement. He does control the CIA. The military controls other organizations, like the DIA, NSA and others. But this can't apply to local law enforcement, or any other organization within the US, because you'd have to be captured in an area where the law of war applies - a zone of hostilities.

It seems that way on first reading, but if you actually parse through 1031.E it doesn't actually protect US citizens on foreign soil.

Right, because that's saying "Hey, this only applies to people captured overseas in areas where the US military is actively engaged in hostilities pertaining to the supporters or perpetrators of the 9/11 attacks." This ambiguity you point out is exactly why 1032 adds the provisions to state that military detention does not apply to US citizens; that even showed up in press discussions about two weeks ago, when it was changed in the markups. So the definition is constrained in 1031 to things that happen overseas in combat zones, and then 1032 says "But even if you're picked up there, if you're a US citizen, this does not apply to you."

It's not a simple set of rules, but it's parseable. I think perhaps this is why the ACLU is quiet on the final bill. They got some of what they asked for, but they sure don't want to support the bill (very much my own position.)

Robear wrote:

Legal language is more definite than colloquial usage. Note that even if you have watched a youtube video with an Al Quaeda ad, you could in some sense be construed as materially supporting. That is not actually enough to be picked up under this law. You'd have to be determined by the government to be a member of Al Quaeda or one of it's supporting groups, or to have planned or participated in an attack by them on US or Coalition forces. (This determination, since you are a US citizen, would have to stand up in court). Then, you'd have to be captured by the US military during hostilities, or in an area subject to the law of war, and furthermore, one that is covered by the Authorization of Use of Military Force, not just any area where there are US troops. And finally, because you *are* a US citizen, you'd not be subject to being held by the military; you'd be transferred to US law enforcement ASAP.

Isn't that kind of a high bar?

The concern is that they don't have to actually prove you're part of al-Qaeda. Because you don't have a trial. Also according to that link a few posts back the President can waive all exemptions/requirements for matters of national security.

I agree with you in general about the bill but there's still so much room for worry. The fact that there is no process of determining the eligibility BEFORE they are detained means all of the requirements don't matter. Sure, if you get out later you can sue or whatever but that won't make it any better. They're not going to let you have access to anyone while you're detained.

The concern is that they don't have to actually prove you're part of al-Qaeda. Because you don't have a trial. Also according to that link a few posts back the President can waive all exemptions/requirements for matters of national security.

They do, though, especially if you are a citizen. Remember, that assertion is placed in the record and subject to oversight - that is, there's a legal requirement to do it. Congress and the DOJ could easily be involved. It's the same process that's used to say "Hey, we've got enough evidence to arrest" in a regular case. Or at least an analog of that. You may not have a trial, but that doesn't mean that an official determination is not made and recorded.

The Presidential exemption nullifies all of the provisions, and has been available for decades. Basically, the President can decide someone should be covertly picked up and held, subject to various reviews. What's interesting about this is that it provides a legal and more transparent way to do this; in the past, *all* of the prisoners in these categories would have been subject to the President's whim. Now, it's a much smaller possibility.

Ironically, that's an improvement.

Edit - I missed this:

The fact that there is no process of determining the eligibility BEFORE they are detained means all of the requirements don't matter. Sure, if you get out later you can sue or whatever but that won't make it any better. They're not going to let you have access to anyone while you're detained.

Not true. Everyone held or sent to another country under this law will be accorded rights under the law of war. Except citizens, who will not be held by the military but presumably transferred to law enforcement custody. Also, the law requires that the procedures be created to do what you say they won't, within 60 days of passage, and be submitted to Congress. That's in 1032 as well.

Robear wrote:
The fact that there is no process of determining the eligibility BEFORE they are detained means all of the requirements don't matter. Sure, if you get out later you can sue or whatever but that won't make it any better. They're not going to let you have access to anyone while you're detained.

Not true. Everyone held or sent to another country under this law will be accorded rights under the law of war. Except citizens, who will not be held by the military but presumably transferred to law enforcement custody. Also, the law requires that the procedures be created to do what you say they won't, within 60 days of passage, and be submitted to Congress. That's in 1032 as well.

Do prisoners under the law of war have access to lawyers or really anyone with their interest in mind?

All prisoners who are not handed over to US law enforcement or their own countries may only be held until the end of hostilities.

In other words, "forever", because we have been explicitly told by the government, in absolutely plain and direct language, that the War on Terror will never end.

There will be no end to hostilities. Therefore, this is not a war. It is just policing, by a police state.

Robear wrote:

This may be part of your misunderstanding, in that the law of war is a defined body of law, not an arbitrary phrase. "This law of war" is a weird phrase, because 1031 does not create a "law of war" as you seem to imply.

Under the law of war, detentions end when hostilities end in the area where the person was captured. So, as I noted, in Iraq, when hostilities ended, we held no more Iraqi prisoners in indefinite detention.

Sorry, what I meant was that the "law of war" applies to future acts, the "law of war" referes to the hostilities specified, in this case the hostilities specified are those from the "Authorization for Use of Military Force". These hostilities are specifically to prevent "future acts" which is where the whole endless nature of the beast comes in.

I agree that the definition of "considered persons" is pretty solid, if I was confident in everyone involved following the letter of the considered persons thing I wouldn't really be that worried. However we have already seen the erosion of the word terrorist in our national dialect, so I can't be certain that the definitions in 1031.B are as strong as they really seem. 'Materially supported' is probably the part I'm most worried about. If I watch a youtube video of Awlaki and he has an ad on it, then I have literally materially supported Al Qaeda.

Legal language is more definite than colloquial usage. Note that even if you have watched a youtube video with an Al Quaeda ad, you could in some sense be construed as materially supporting. That is not actually enough to be picked up under this law. You'd have to be determined by the government to be a member of Al Quaeda or one of it's supporting groups, or to have planned or participated in an attack by them on US or Coalition forces. (This determination, since you are a US citizen, would have to stand up in court). Then, you'd have to be captured by the US military during hostilities, or in an area subject to the law of war, and furthermore, one that is covered by the Authorization of Use of Military Force, not just any area where there are US troops. And finally, because you *are* a US citizen, you'd not be subject to being held by the military; you'd be transferred to US law enforcement ASAP.

Isn't that kind of a high bar?[/quote]That's true. Like I said, pretty solid, as long as no one ever decides to stretch or abuse this system in any way. Unfortunately people are already abusing these classifications.

Right, because that's saying "Hey, this only applies to people captured overseas in areas where the US military is actively engaged in hostilities pertaining to the supporters or perpetrators of the 9/11 attacks." This ambiguity you point out is exactly why 1032 adds the provisions to state that military detention does not apply to US citizens; that even showed up in press discussions about two weeks ago, when it was changed in the markups. So the definition is constrained in 1031 to things that happen overseas in combat zones, and then 1032 says "But even if you're picked up there, if you're a US citizen, this does not apply to you."

No, it absolutely, positively does not say that. It says that the military is not required to detain them, it does not say they can't detain them indefinitely, just that they have a choice one way or the other. 1032's provisions DO NOT AFFECT 1031.

Well spoken but it likely fell on deaf ears. The @sshats that voted for the bill don't give a sh*t about the Constitution or the rights of Americans.

Swiped from BoingBoing: The New York Times FOIA'd the legal justification for killing al-Awlaki. The request was denied.

Summary wrote:

- The government dropped a bomb on a U.S. citizen,
- who, though a total dick and probably a criminal, may have been engaged only in propaganda,
- which, though despicable, is generally protected by the First Amendment;
- it did so without a trial or even an indictment (that we know of),
- based at least in part on evidence it says it has but won't show anyone,
- and on a legal argument it has apparently made but won't show anyone,
- and the very existence of which it will not confirm or deny;
- although don't worry, because the C.I.A. would never kill an American without having somebody do a memo first;
- and this is the "most transparent administration ever";
- currently run by a Nobel Peace Prize winner.

Maybe this shouldn't be in the NDAAB thread since it predated it. I just feel like the NDAAB is all about creating a legal defense to bring that sort of thing back home.

Clearly, if justice is inconvenient, assassination is perfectly justified.

Edwin wrote:

McDermott making actual points

Thass' our boy! Too bad he often gets written off as the iconic bleeding-heart liberal of the House.

At least the final bill is a little less monstrous than the original. Small consolation, though.

No, it absolutely, positively does not say that. It says that the military is not required to detain them, it does not say they can't detain them indefinitely, just that they have a choice one way or the other. 1032's provisions DO NOT AFFECT 1031.

Well, I have to disagree.

Note that anyone who wants to argue that the war is "in effect" perpetual has to explain why we gave up the Iraqi prisoners we held before the conflict ended there. That's in accordance with my reading of things, but not with the other interpretations here.

1032.B wrote:

(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.

Just because you don't want the Senate to pass a bill allowing the military to indefinitely detain citizens doesn't mean they didn't.

Robear wrote:

Note that anyone who wants to argue that the war is "in effect" perpetual has to explain why we gave up the Iraqi prisoners we held before the conflict ended there. That's in accordance with my reading of things, but not with the other interpretations here.

I don't know enough about the situation but there's a lot of ways that this can make sense. They could have just been Iraqi soldiers but not directly connected with terrorists and we're at war on Terror not Iraq. We could have had diplomatic reasons to do it. Just because we can hold them indefinitely doesn't mean we have to. Similarly, just because we didn't hold someone indefinitely doesn't mean we won't for someone else.

Yonder wrote:
1032.B wrote:

(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.

Just because you don't want the Senate to pass a bill allowing the military to indefinitely detain citizens doesn't mean they didn't.

Requirement doesn't refer to obligation, as you are interpreting it. Earlier in 1032 they define the requirement a person must meet to be indefinitely held. The line you are quoting says that even if US citizens meet the requirements, they are not covered by this bill.

As someone (sorry I don't remember..leaning towards Robear) said earlier, the language in this bill is chosen very purposefully. Requirement was chosen because of it's earlier meaning in the bill. If they meant requirement as obligation they would have used the word obligation.

You are correct that this exemption does not cover 1031 however 1031 has it's own exemption.

This thread may have the most agreement and civil, rational discussion of any thread I have read here - and it may also be one of the most depressing.

gregrampage wrote:

As someone (sorry I don't remember..leaning towards Robear) said earlier, the language in this bill is chosen very purposefully. Requirement was chosen because of it's earlier meaning in the bill. If they meant requirement as obligation they would have used the word obligation.

I'm sure John Yoo could come back to the Justice Department and write another memo that secretly reinterprets the meaning of "requirement".

OG_slinger wrote:
gregrampage wrote:

As someone (sorry I don't remember..leaning towards Robear) said earlier, the language in this bill is chosen very purposefully. Requirement was chosen because of it's earlier meaning in the bill. If they meant requirement as obligation they would have used the word obligation.

I'm sure John Yoo could come back to the Justice Department and write another memo that secretly reinterprets the meaning of "requirement".

You do bring up an unfortunate point. The fact that we're having this debate still shows that the language isn't clear and leaves even more room for abuse.

Assuming what Robear is saying is right (which I do believe) you would think Congress would see all of the uproar across America about indefinite detainment of US citizens and try and make an effort to clear that up. Whether it's with press releases or clarified wording in the bill. But they didn't..and that's disturbing. Maybe that's another discussion though.

Vagueness equals flexibility. They don't want to be limited by being specific.

Vagueness means you can defend the bill in public as totally okay, but convince your subordinates that it means something else and execute your intent as planned.

Robear wrote:

Note that anyone who wants to argue that the war is "in effect" perpetual has to explain why we gave up the Iraqi prisoners we held before the conflict ended there. That's in accordance with my reading of things, but not with the other interpretations here.

The war in Iraq had a separate bill authorizing military action, hostilities in Iraq did not begin under this 'war on terrorism' bill, so when that theatre ended then people detained under that theatre were let go. However places like Pakistan, or the African nations that let us roam around, are part of the 'war on terror' so they don't have to be let go until the war on terror ends.

Signed into law.

Among the changes the administration secured was striking a provision that would have eliminated executive branch authority to use civilian courts for trying terrorism cases against foreign nationals.

The new law now requires military custody for any suspect who is a member of al-Qaida or “associated forces” and involved in planning or attempting to carry out an attack on the United States or its coalition partners. The president or a designated subordinate may waive the military custody requirement by certifying to Congress that such a move is in the interest of national security.

The administration also pushed Congress to change a provision that would have denied U.S. citizens suspected of terrorism the right to trial and could have subjected them to indefinite detention. Lawmakers eventually dropped the military custody requirement for U.S. citizens or lawful U.S. residents.

“My administration will not authorize the indefinite military detention without trial of American citizens,” Obama said in the signing statement. “Indeed, I believe that doing so would break with our most important traditions and values as a nation.”

Here's the full signing statement.

Robear wrote:

“My administration will not authorize the indefinite military detention without trial of American citizens,” Obama said in the signing statement. “Indeed, I believe that doing so would break with our most important traditions and values as a nation.”

"But we still retain the right to strip people of their citizenship or murder citizens as we see fit".

Obama wrote:

“My administration will not authorize the indefinite military detention without trial of American citizens,” Obama said in the signing statement. “Indeed, I believe that doing so would break with our most important traditions and values as a nation.”

Note that he doesn't say that the law keeps him from doing that. He's saying "even though this law allows me to indefinitely detain US citizens, I promise I won't."

President Obama wrote:

“My administration will not authorize the indefinite military detention without trial of American citizens,” Obama said in the signing statement. “Indeed, I believe that doing so would break with our most important traditions and values as a nation.”

That just makes me ill.

More accurately:

The new law now requires military custody for any suspect who is alleged without substantiation to be a member of al-Qaida or “associated forces” and alleged without substantiation to be involved in planning or attempting to carry out an attack on the United States or its coalition partners.

Yes, that's right. If they point the finger at you, you're no longer a citizen. No habeas corpus for you. No right to examine the evidence against you. No ability, in fact, to even argue your case at all.

But no, we're not a police state. Of course not. Police states are bad. The United States is good. Therefore, the United States is not a police state. QED.

Boy, it's sure a good thing that our government and our media never, ever make up incorrect stories about people. Imagine the havoc that could ensue!

Malor:

I think you need to spend a little time cleaning up your Internet trail, if you haven't already. Things are getting worrisome over there.

Highly recommended for anyone here who's been or will be critical of the US government. Use a rotating IP address if you can.