[UPDATED] On Government - What's the deal? - Indefinite Detention - National Defense Authorization Act, S.1867, Section 1034

Sometimes words leave me.  I am referring to a group of circumstances, but more specifically for this blog I refer to the Senate bill titled National Defense Authorization Act, section 1031, S.1867.  Normally, this bill authorizes expenditures, troop levels, and that type of stuff.

However, this year, Senator McCain and Senator Carl Levin have co-sponsored an amendment to the bill which says :

Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

The entirety of this section of the bill reads :

(a) In General- Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) Covered Persons- A covered person under this section is any person as follows.

(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

(c) Disposition Under Law of War- The disposition of a person under the law of war as described in subsection (a) may include the following:

(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.

(2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)).

(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.

(4) Transfer to the custody or control of the person's country of origin, any other foreign country, or any other foreign entity.

(d) Construction- Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

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

(f) Requirement for Briefings of Congress- The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be `covered persons' for purposes of subsection (b)(2).

A quick read of this section basically reads something along the lines of:

 Congress re-affirms that the President can use all force necessary to prosecute the Authorization for Use of Military Force, including people who were a part of 9-11, have aided al-Qaeda, the Taliban, or any associated forces, against the United States & its allies.

 The President can detain these people until the end of the Authorization for Use of Military Force, Try them under United States Code, transfer them for trial somewhere else, or transfer them to their home country.

We don't want this section to expand or decrease the current powers of the President.

The Secretary of Defense will have to tell us who/why/how they are using these powers regularly.

So what's the rub?  There's all of this yelling going on in the blog-o-sphere about these amendments.  Why?  It boils down to this text:

 Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.

The problem that people are seeing is that there's no exception here for United States citizens.  A motion to add text that exempted US citizens on American soil was defeated.  Therefore:

You can be indefinitely detained without trial, without jury, and without charges if you are suspected of supporting terrorists.  To detain you, the US Government has to attach you to an organization that is supportive of or affiliated with al-Qaeda, the Taliban, or an associated organization.

Now, some bloggers will go very Vendetta-ish here, saying it only takes a few twists of one's words to create a link between you and some questionable organization that could be supportive of al-Qaeda or the Taliban.  Unfortunately, instances of un-warranted tracking/spying by the FBI of various American citizens makes this believable.  There's even an instance where a person was tracked because of a friend's reddit comment.


There's a lot of ground that has to be covered to go from GPS tracking or phone tapping to grabbing a PETA activist and throwing them in Guantanamo Bay.  But the rub is that this law makes it possible to do so.

The Constitution already covers how to handle this type of behavior.  It's called Treason, and its in Article 3, Section 3 :

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

How close does that resemble the person described in Section 1031 (2) of S.1867?  Still, this passed the Senate.  How are they justifying this?  There's this line in the Constitution, Article I, Section 9 :

 The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Habeas Corpus is a legal term basically requiring a person be brought before a judge.  The amendments in section 1031 of S.1867 specifically suspend Habeas Corpus for American citizens.  The idea is that our continued conflicts abroad put the country in a case of "rebellion or invasion" and that for "public safety", it is required.

Furthermore, the Non-Detention Act of 1971 specifically says that only an Act of Congress can detain a citizen of the United States :

No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.

This was intended to repeal the Emergency Detention Act of 1950, which made it possible, just like S.1867, Section 1031, to detain citizens.  The people who could be detained?  Anyone supporting Communism.

And let's us not forget the Bill of Rights and the Fourth Amendment :

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

We have, in 2011, our equivalent of the Red Scare.  This time it is the Terrorist Scare.  Like the Red Scare, there's no foreseeable end to the current War on Terror.  Do I think terrorism is a threat?  Absolutely.  But a few Americans found helping the enemy does not a trend make.  We're not seeing a rebellion at home in support of al-Qaeda - the vast majority of Americans hate them and what they stand for.  Declaring that anyone can be detained on the suspicion of terrorist activities is not American and over kill.  The Constitution, Due Process, Habeas Corpus, and The Bill of Rights were keystone concepts of what this country was founded on.

At any time we step away from these concepts, we are letting the other side win.  Terrorism is about changing cultures, changing values, and scaring people.  We see here the degradation of our Rights, bit by bit, whether its the Patriot Act or S.1867.  They are changing our government.

This bill is now going to the House.  It's already passed the Senate.

UPDATE:
Two Four-Star Generals, Charles Krulak & Joseph Hoar have written a note to the NY Times speaking against the provisions in the NDAA for indefinite detention.

UPDATE 05.17.12:
A United States judge has ruled that the provisions in the NDAA of '11 for indefinite detention are unconstitutional.

Take action by using this ACLU form to send a note to your Senators & Representative.

Check out this article if you're curious if your senator supported or didn't support S.1867.

Sources:
Analysis & notes on S.1867: DailyKos
Non-Detention Act:  http://en.wikipedia.org/wiki/Non-Detention_Act , Full text: http://tucnak.fsv.cuni.cz/~calda/Documents/1950s/Inter_Security_50.html
Full Text of S.1867:  http://thomas.loc.gov/cgi-bin/query/D?c112:2:./temp/~c112dpzVQa::