The National Defense Authorization Act has come under fire by the libertarians and the progressives. It was under this pressure that the language has been changed in regards to the detention sections 1031 and 1032.
In prior bills the sections in question would have allowed the indefinite detention of American citizens accused of terrorism, but the new language says:
SECTION 1031 –AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE
Section 1031 authorized detention
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.
(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.
Section 1032 REQUIREMENT FOR MILITARY CUSTODY
(2) COVERED PERSONS.—The requirement in paragraph (1) shall apply to any person whose detention is authorized under section 1031 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.
The point I am trying to make is that according to THIS bill, American citizens can not be detained at all, indefinitely.
But as section 1031 states, “Nothing in this section shall be construed to affect existing law or authorities, relating to the detention of United States citizens…”
The question is, what does EXISTING law say about the detention of American citizens. That is what we need to be concerned with. If existing law states American citizens can be detained indefinitely, by the military, that is the law or laws that need to be changed. NOT this current law.
Unfortunately, we still have Senators like Lindsay Graham (R-SC) and others who supported the old version President Obama was going to VETO, which did NOT exclude American citizens.
The views of Senators like Graham still represent a grave threat to our civil liberties and any other existing law that permits indefinite detention.
Related posts:
The Supreme Court decision, actually a lack of a decision, in the Rumsfeld v. Padilla 2004 case essentially told the government it has the authority to arrest and detain enemy combatants, even if they’re a citizen.
So 1031.e doesn’t change anything, it simply excuses past detentions and legalizes future detentions.
This answered my question. I’ve been trying to find information all day long about whether sec.1031 (the one concerning military detention of Americans by the military) had been changed or not. It has.
Undocumented migrants can still get Guantanamo’d by this bill, but Americans cannot. Thank you Ray.
This is part of an email that I received from an Attorney.
Attorneys are trained to look for loopholes, and those who wrote this bill were attorneys, so they are either ignorant or inserting holes to provide doors for future activity. 1031 b) Door No. 1: …including any person who has committed a belligerent act or h as directly supported such hostilities in aid of such enemy forces.Belligerent act? There you have it, the open door to include just about anyone. Now don’t think these words are not well planned and don’t for one minute assume you know their definitions. Remember John McCain and Joe Leiberman’s “Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010″? This act failed, but that has not stopped John McCain. This Enemy Belligerent Act defines a Belligerent as: an individual, including a citizen of the United States, determined to be an unprivileged enemy belligerent…an individual who: 1) has engaged in hostilities against the United States or its coalition partners; or 2) has purposefully and materially supported hostilities against the United States or its coalition partners.” Hostilities? And the door swings wide open.
The text says “existing law or authorities”. Doesn’t the “or authorities” part mean that if the government has granted the military extra-legal authority to detain citizens, that those additional (wartime) permissions are now upgraded to full law status?
Example: Say that I have a standing rule (law) that my child is not allowed to go in my wallet. But then on occasion, I requested her to do it. Those exceptions are now upgraded to being the standard rule or law.
I believe this language is intentionally phrased in a way that codifies the legally questionable actions they have been employing to date to cover their ass going forward.
Laws are worthless without enforcement. Who will enforce that the detentions will not be US citizens? The justice department? Congress? We cannot allow this law to move forward as it sets up a precedent for illegal detention, destroys the fundamental Habeus Corpus that all our laws are based upon. It is not about trusting this administration or another; it is about allowing terrorist to fundamentally change our society and laws.
“Anyone who trades liberty for security deserves neither liberty nor security” Benjamin Franklin
That was a part of the jostling- taking power away from Def Dept to make those calls. A note that this is not technically a law but a yearly funding bill; however, they tried to sneak in things to alter the existing laws and make it tougher for a variety of things to happen. Why they tried to do that and why this is allowed are some questions we should be asking. Republicans complained that healthcare reform backdoored a change in the law – and then they go and do this (with the assistance of maj of Dems).
thank you.
The fact that a piece of legislation serves (among other important purposes) to fund something for s year’s time does not mean that the legislation is “not technically a law” in any sense I can see.
Can you explain, specifically, the sense in which this legislation does not result in “technically a law” as you see it?
Thanks
To clarify, I mean that law is being back-doored into an appropriations bill. Laws such as The Patriot Act are in place until changed and are at least obvious in their intention; whereas appropriations bills such as NDAA are technically only supposed to be about funding, not changing policy and are only good for the year to which they apply. Furthermore, technically, any bill until it’s signed into law by POTUS is not law.
“A person who was a part of or substantially supported … 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.”
Isn’t that all we need to read? It seems very clear (as clear as LEGALESE gets) that the wording is such that it could lead to the detention of American citizens who are not in complete support of the United States government.
That’s already in the patriot act so it isn’t really changing any thing. Even if you took out of this Bill it was still be in the patriot act
Thank you Shiva.
It says: “(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.” It seems to me that you can’t be held on this bill unless you are part of AlQaeda, Taliban, or “associated forces”. I think that anyone who extends this to people protesting here is just acting on hysteria. I don’t fear this law as much as I fear the Republicans getting a chance to nominate a couple of more justices to the Supreme Court. Many parts of the Patriot Act have been overturned by the courts, including by the conservative courts. If the courts cease to deflect any threats to our Bill of Rights, we have a lot more problems than the NDAA.
It DOSEN’T matter if you actually are a terrorist, or aren’t! If “they” say you are, or that they think you are “they” can disappear you in the middle of the night because the NDAA, as a whole, effectively suspends heabis corpus (sp?).
“belligerent act” I have lost track of the Belligerent acts I have seen since the BP oil disaster. The protestors in the parks could be said to be Belligerent….We have all been belligerent because we are pissed with our Corporate government and the Elite and their AGENDA! Are you absolutely certain we are protected???? I’m not!
No, Beach. In legalese, a “belligerant act” is specifically an act of war; “belligerants” are nations at war, or parties at war. Offering to punch someone’s lights out is not, in this sense, belligerent, though in the literary sense we would call it so. Shooting out the lights of a train would be a belligerent act only if done on behalf of a belligerent.
Thanks for clarifying that for me… I truly appreciate it and definitely needed to know that..
there are three people in this country that I am deathly afraid of. John McCain, Joe Lieberman, and Lindsey Graham. I’m sure there are more in the Congress than that but these three are completely whacked out. All they can think about is terrorizing people so they can sleep well at night. Lieberman runs around worrying about Israel and quite frankly he should be there instead of acting as Israel’s representative to the United States Congress.
I’m not sure but I think at this time an American citizen can be held indefinitely. The Bush patriot act took away the right of habeas corpus for anyone the president determined as a terrorist. the bad part of that is that idiots like Lindsey Graham and John McCain will start coaching from the sidelines telling the press who they think should be held. I wish Obama would grow a pair after the 2012 election and walk in and rewrite the patriot act to allow it to assist people to find terrorists without getting into the citizens pants
How did you guess who was behind this? Hello Senate Armed Services Committee. The original bill read like McCain Graham but it is owned by Levin Graham courtesy of SASC.
Because John McCain was all over it today on the news. He out and out lied saying that the president was only doing this to cover his campaign promises. Never said a word that this was negotiated through Bush, never said a word that the Iraqi prime minister did not want us there anymore, never said a word that it was politically not correct for the Prime Minister to keep us there because the people wanted us out terribly bad.
I have lost all respect for John McCain. No matter his politics of the past I have always maintained a certain level of respect for him because of what he went through in a war we never should’ve been in. But that is all shredded now. Completely gone. He just simply out and out lied as if Obama could force the Iraqis to allow us to stay there. I want him out of Congress and out of politics
They are doing this to try to run an end game around Obama’s push to try things in civil courts and McCain leads that charge – the man who was tortured! I am so glad I missed his lies today. It should be clear by this where he would have taken this country.
I am not all that sure that we would’ve seen this much extremism had McCain been elected. But there is little doubt in my mind we would’ve been in more war type action around the world. Joe Lieberman would have a cot in the Oval Office
Shiva, this would have come up no matter who was in there. Its amazing how quick they all fall in line on something like this, but on things like the budget, Cats and dogs.
Finally, someone who understand what is actually going on.
they need to dump both patriot act and thia ndaa law, it abuses the constitutional rights and our freedom for existance. G.W.BUSH and DICK CHENEY COMMITTED TERNAY AND TREASON AND CREATED THE WAR ON TERRORISIM TO INCITE A THREAT TO INCITE WAR FOR PROFIT AND BOTH ARE WANTED MEN FOR WAR CRIMES AGAINST HUMANITY. THEY NEED TO BE ARRESTED NOT THE AMERICAIN PEOPLE THAT SPEAK OUT AGAINST GOP AND THEIR TREASONIOUS TAKE OVER TO CONTINUE ANOTHER FAKE WAR FOR PROFIT BANKSTERS AND WAR INDUSTRIES, CORPS AND WALL STREET ARE THE GUILTY ONES. THEY ARE THE TERRORIST AND NOT YET BEEN HELD RESPONSIBLE OR INDICTED! THEY ARE IN DC DISTROYING OUR CONSTITUTION AND WRITING LAWS THAT HURT AND KILL AND MAIME AND SOON GENICIDE US.
Can the author of this piece speak to the information being spread via RT.com stating that the Obama administration demanded the removal of the language protecting American citizens?
http://rt.com/usa/news/obama-detention-defense-levin-635/
He is not here yet, but I will address this: That video is of Levin, the author of this original bill. People should try to read the original Obama admin request to change the language, as it is clear in there that he is asking for less ex power and to NOT have the military patrolling the streets. Funny how people don’t like this bill, but will believe what the author of it said on the floor. Not only that, but the issues POTUS had with it were echoed by ACLU and others. Who to believe? SASC member who wrote bill with Graham who thinks we should be a battlefield here in US, or ACLU. Hmmm.
This story links to the long disagreement POTUS had with the original bill: http://www.politicususa.com/en/defense-authorization-act
POTUS disagreement: “Moreover, applying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets.”
also see the Senate armed services original with the Obama admin mark ups from November.
Ok, so are you saying that Carl Levin is lying in this clip? Or is there some other way the video clip is being misrepresented by RT.com? I am just seriously confused. There are so many conflicting stories flying around the Internet. There doesn’t seem to be any full coverage of this anywhere.
I like Carl L, but you do know that he is up for re-election. Unfortunately this issue is reflected in his 2012 campaign. Call me crazy, but I do believe PBO is milking this to create a situation in which he can gain enough control to make the Senate eat their decision that no Gitmo prisoners can be tried in US courts.
This is a political merry go round.
I hope you are right.
I hope you are right too. Seldom do I have a problem figuring out their legalese, but this just has my head spinning. IMHO the bill is way too ambiguous and needs to be tossed.
I also believe that our President has our and our country’s best interest at heart and tend to trust him at least more than many others. Coming from Arizona, I trust John McCain the least. He is always about what he wants and everyone has to see it his way or he will cram it down our throats.
You rock Sarah Jones.
the president did not demand the removal of the language protecting American citizens. He promised to veto the bill if the language was not changed so that it did protect Americans.
So . . . Rt.com is lying?
Though Russia Today broaches some interesting stories, they don’t check as well as they should and I’ve seen them run with whatever suits their viewpoint. They’re fine for leads, but double-check. Some of the best journalism I’ve seen recently is on Al Jazeera. Usually, if Deutsche Welle or Euronews goes with a story, it’s safe and dull.
Yes it is. Read the actual text and you’ll see that the languages in the bill. Obama did not ask for it to be removed, he asked for to be put in
I am fairly certain the “existing law” that is mentioned is Habeas Corpus, the wording was changed so that this right wasn’t taken away, which was the whole point of the re-write.
Well you can read any number of totally conflicting articles about it online right now. With absolutely opposed statements about what Obama did, what is in the bill now, and what is likely to happen.
“The question is, what does EXISTING law say about the detention of American citizens. That is what we need to be concerned with. If existing law states American citizens can be detained indefinitely, by the military, that is the law or laws that need to be changed.” –
These lawmakers make the laws, it is their job to UPHOLD the Rule of Law when they make those laws, THEY ARE NOT DOING SO IN THIS CASE.
So here’s the problem. Jose Padilla (see Rumsfeld v. Padilla). Jose Padilla, a US citizen that was captured INSIDE the US and was held in military prison for years, without charge, after George W Bush declared him an ‘enemy combatant’. The Fourth Circuit said OK, meaning the military can indefinitely detain US citizen, picked up on US soil, WITHOUT charge. The Supreme Court of the United States took the case of Rumsfeld v. Padilla to decide the question of whether Congress’s Authorization for Use of Military Force authorized the President to detain a U.S. citizen, but SCOTUS never ruled on the issue, they just said the case was improperly filed. There is also the 1940s case where a US citizen was prosecuted by the military and executed; SCOTUS said it was legitimate (Not good but may be what they use next time).
Lower courts seem to conflict and SCOTUS hasn’t ruled on the question, not lately anyway, so this was their opportunity to clarify citizens are immune to indefinite detention or military prosecution, THAT IS THEIR JOB, and they blew it.
The question everyone should be asking is, WHY are federal lawmakers so bent on not protecting our most basic Rights and overturning the Constitution?
Every American should be very concerned when even the federal lawmakers are concerned about the language of the bill they are voting on! And why the people who are supposed to uphold the Rule of Law will not clarify the law relating to indefinite detention of US citizens… why Obama had that provision removed!
Remember, Hitler’s Germany made laws to remove Human Rights of Jews… before he made laws to imprison them… before he killed them.
more here, ‘Proof Obama will sign NDAA 1031 Citizen Imprisonment Law’
http://saynotocorporateamerica.blogspot.com/2011/12/proof-obama-will-sign-ndaa-1031-citizen.html
I watched the debates and herd straight from the mouths of many senators and they said this DOES apply to U.S citizens …I also read the bill…For example an officer at an air port that might suspect someone of planing an attack or decides a person is a threat CAN detain a person ,Hand them over to the Military then do process kicks in and it will have to go to a federal judge to decide whether or not they have proved sufficient evidence which could take YEARS..In the mean time an innocent person could be held with out Representation until a JUDGE decides..Also Obama did not threaten a veto over the Indefinite Detention he threatened a veto because he seen it as restricting his ability to collect Intelligence…I usually like your articles but you got this one wrong by a mile…Sorry but I tend to except the truth and not just agree because a Democrat is President …I know you THINK you got this right but you are very very wrong and people need to realize our civil liberties are being stripped away like never before,and with a massive Bi Partisan effort..This is not about party lines it is about our lives and the bill of rights being trashed for ALL Americans…
The bill specifically states that sections 1031 and 32
“Nothing in this section shall be construed to affect existing law or authorities, relating to the detention of United States citizens”
Now what does EXISTING law state? that is the question I raised. The point I am making is the NDAA doesnt allow the detaining of US citizens, although another law may and THAT is the problem
Seems to me the Patriot act does
exactly
Like I said I watched the Senators speak on the floor tonight so I herd what I herd clear as a bell.. Yes there are EXISTING laws that have allowed the indefinite Detention that one under Bush and another who was executed some 40 years ago…This bill however leaves it up to the Supreme Court to decide once a person is detained ..Clearly Stated on the floor tonight..As you can see I am not attacking anyone party and am pointing out that when it comes to our civil Liberties that every peace of legislation passed from the Patriot Act and even before has be passed with a large Bi Partisan effort..I just hope people will understand this is not something to be taken lightly ..Everything from Peaceful protesters being beat down ,gassed ,sprayed with mace, drowning our first amendment right of free speech Blacking out Media To S.O.P.A Etc is a direct attack on the Constitution and the Bill of rights ..I wish everyone had just tuned into Cspan and herd the things I did then there would not be such a conflict..Further more Fienstine is taking this matter very serious as she should , she would not be working on a new bill to counter balance this if it were just something to be shrugged off ..AS I said I know what I herd so I won’t be changing my mind on the matter ..I am very concerned about this after hearing them speak..
I have read this bill pertaining to the Detainee Matters numerous times and followed the media opinions/editorials etc. Section 1031 affirms the authority of the President to the use of Armed Forces in detaining “covered” persons pending their disposition under the law of war. The disposition “may” include the following 1.without trial until the end of hostilities (or as some interpret it..indefinitely), 2. Trial under chapter 47A of Title 10 United States Code, 3.transfer for trial to an alternative court or competent tribunal having lawful jurisdiction, 4.transfer to the custody or control of the person’s country of origin.
As stated in this article Section 1031(e) nothing in this section can be construed to affect existing law or authority, relating to the detention of United States citizens. *My deduction..if a US citizen is arrested/detained it falls under civil law with due process and other protections afforded by the Constitution. If the military detains you your rights fall under the law of war and are subject to the disposition stated above. Section 1032 prevents the detainment of a US citizen under military law **(not necessarily detainment but detainment under military law). Section 1032 pertains to Requirements for military custody and states: the Armed Forces shall hold a “covered” person WHO IS CAPTURED IN THE COURSE OF HOSTILITIES in military custody. Section 1032(b)pertains to the US citizen and states:
(1) UNITED STATES CITIZENS.—The requirement
11 to detain a person in military custody under
12 this section does not extend to citizens of the United
13 States. And
14 (2) LAWFUL RESIDENT ALIENS.
Here is what I do not understand. Is our government so out of touch that they do not know how apprehensive this bill has caused for its citizens? Why are they not addressing this issue to explain this bill and hopefully relieve our minds. Are they so out of touch that they honestly believe we can trust much of what has been televised and written? I long for a news media that does their job, does the research, presents both sides without bias (as much is humanly possible). Once we understand that most of what we watch and read is opinion/editorializing and not so much fact, learn to take it with a “grain of salt” and do the research yourself. Even those media attempting to get the truth out have been mislead. If so, it demands a retraction. This is what good journalism does. While I believe watching Senate and House of Representatives in action can be informative, I do not believe they can be depended on necessarily for truth and facts. Again, it is their opinion/believe and they have an agenda to persuade.
The one thing I am trying to find out is concerning the waiver in this bill and would appreciate any insight/facts/links etc.
Here’s how Sen. Debbie Stabenow explained things:
Thank you for contacting me about detainee provisions in the National Defense Authorization Act. I share your support for protecting civil liberties, which is why I believe the government’s detainee policy should be codified in law.
I strongly believe that the President needs the power to keep Americans safe and that power should be used carefully and in accordance with the Constitution. Currently, the detainee policy is cobbled together from Presidential directives and Supreme Court cases. The policy has been developed ad-hoc since 2001, and is subject to change at the whim of a President. The National Defense Authorization Act only codifies into law what is currently U.S. policy.
I voted to ensure that only terrorists who are members of al-Qaeda and who commit an act of war against the United States can be detained. For the first time, detainees now have the right to a hearing before a judge with a defense lawyer present. The bill, which passed the Senate by a vote of 93-7, also protects the right of habeas corpus. In addition, I voted for an amendment, which passed, explicitly stating that nothing in the bill shall be construed to affect existing law related to U.S. citizens, lawful resident aliens, or any other persons who are captured in the U.S.
Thank you again for contacting me. As always, please continue to keep me informed about matters of concern to you and your family.
Sincerely,
Debbie Stabenow
United States Senator
“nothing in the bill shall be construed to affect existing law related to U.S. citizens, lawful resident aliens, or any other persons who are CAPTURED!! in the U.S.”
Why would “lawful” citizens in the US be “captured” in the US? This just seems silly to me.. I can kind of see maybe.. I don’t know.. just sound weird.
The term ‘lawful’ is state in reference to aliens. As in applying to aliens that are not illegal.
Bradley Manning. We are in a police state.
“The question is, what does EXISTING law say about the detention of American citizens. That is what we need to be concerned with. If existing law states American citizens can be detained indefinitely, by the military, that is the law or laws that need to be changed. NOT this current law.”
Indeed!The PATRIOT Act is existing law. What does the PATRIOT Act say about detaining American citizens?
In the case of Hamdi v. Rumsfeld (http://www.law.cornell.edu/supct/html/03-6696.ZS.html) the Supreme Court held that the government has the authority under the provisions of the PATRIOT Act to detain and hold American citizens and without filing formal charges or providing a trial, but detained citizens can challenge their treatment in court.
http://jonathanturley.org/2011/12/15/obama-breaks-promise-to-veto-bill-allowing-indefinite-detention-of-americans/
If Jonathan Turley is worried, I am worried.
[...] Defense Authorization Act This (or here, here, or here) doesn’t bode well – at all. Here is a link to the text of the sections in question. [...]
Seems to me, if there wasn’t some loophole.. some certain wording or what not that allows them to detain US citizens, it would be written clearly. It would say it just straight up flat out and easy to understand, no questions needed. And they would be making sure everyone knew it. It would be on mainstream media making sure to tell the general public that the bill very clearly states it. The fact that they have been as hush hush as possible, and re wording here and there, keeping it confusing, or questionable in one way or the other.. Makes me very much believe, they want to be able to detain us and so forth(which most of us pretty much know that) or they have already put in some loophole, or the other law, or whatever so that they can do so.
the loopholes is in the patriot act. it already allows for the detaining of US citizens. But it’s not very hush hush, you can hardly go to a blog such as raw story or the Huffington Post without reading about it
I think the ppl arguing that this dosen’t impact existing law protecting us “lawful citizens” are being somewhat naive. The fact that we are arguing (er… discussing) this shows how vague and contradictory the wording is, and we’re laymen. Most lawful citizens would argue waterboarding is torture, torture is bad, the US doesn’t torture; but… all the last administration needed was (essentially) one lawyer to say it was Okay. Point being I don’t want to sit in a hole in, say, Saudi Arabia for 10 years while the ACLU and the administration argue about what a “lawful citizen” is.
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You ‘re closer but still got it wrong…For one it says ONLY MILITARY DETENTION and doen not say people can not be detained indefinately anywhere..2 in ONLY 1 section of the bill does it cover U.S Citixens but unddr the law wars section or section 1031 it does not …Listen to what the ACLU is telling you I broke the bill down and studied the hell out og it and know why now every major news paper AND the ACLU is saying U.S cotozens are able to be detained indefinatly and by presidential order CAN be sent to gitmo…The sections jump back and fourth along with this paragraph and that pargraph as well as many dispositions…Please stop spreading confusion until you get all the information about the bill..You clearly are still just as confused as the many that are depending on you for proper information…
[...] committed on US soil, known as the Levin/McCain version of the bill. There were articles, like this one, which claimed that was not the case, citing the following as proof: Section 1031 AUTHORIZED [...]
Wow! Such a silly argument about pins and angels dancing thereon. Nothing in this bill can affect protections in the Constitution, or treaties signed by the US and ratified by the Senate, in particular the Geneva Accords.
To read this bill you need to spend a lot of time on the definitions in the Geneva Accords. Reynardine tried to explain belligerents, above and came close. If a warship steams into New York harbor and starts firing at ships and skyscrapers, that is a Belligerent Act. Thumbing your nose (or worse) at a policeman may (or may not) be disorderly conduct, but the Geneva Accords have nothing to say on the subject, nor does this bill.
Why is it “not clear” whether a US citizen can be held indefinitely under this act? Think about the American Civil War. Soldiers wearing Confederate uniforms, and performing belligerent acts like marchiing through Gettysburg trying to reach Washington, DC could be held indefinitely until the issue of whether states could secede from the US was resolved. The Confederates lost, so they were still US citizens, and were released to go home when the hostilities were over. A Supreme Court case, Ex Parte Milligan, in 1866 restricted the suspension of habeas corpus during rebellion, basically allowing anyone–where the courts were open and operating–to apply for habeas corpus from military authorities.
Hmm. That may be a bit hard to understand without background. The case involved several people accused of scheming to steal weapons from the Army, and use them to free Confederate prisoners from PoW camps. The war ended before they were executed after conviction by a military court. The Supreme Court effectively said that they regained the right to a civilian trial when the war ended. (They were released, of course, as were the PoWs they were planning to free.) But the Supreme Court decision has remained the law of the land about when military tribunals can try civilians. Soldiers are subject to military justice (consistent with the Geneva Accords) no matter which military they are a part of. Well, soldiers of non-belligerents are subject to civilian laws and courts unless part of an embassy.
What about soldiers who are not part of the military of a party that signed the Geneva Accords? That is what the “enemy combatant” is all about. And then there are uncovered persons… We are getting into weird territory here, except that certain branches of the military are trained extensively on this. When Seal Team 6 went after OBL, they knew who they could shoot on sight, who they could shoot through at someone hiding behind them, etc., etc. They had to get it right in a lot of split second decisions. Note that only if you survive those decisions can you get to a court of law, so it is a good idea not to stand between terrorists and soldiers. (I’m serious. At my high school, back in the 1960s they had a teacher who taught a one month segment that was really what to do if you got caught in a riot or demonstration. The students who died at Kent State were innocent in both senses of the word, but if they had had the training I did, they would have survived. “If it sounds like a gunshot, hit the dirt. Don’t worry about whether or not it is, fall flat! Bullets always have the right of way…”)
Good post, ty. But I think and I could be wrong, that the Patriot Act removes the right of habeas corpus at the governments discretion
Sigh! Ex Parte Milligan, the Supreme Court decision, sets out when and how habeas corpus can be limited or abrogated. You may have heard someone say, “The Constitution is not a suicide pact.” Basically they are saying that the Supreme Court, when necessary, will re-interpret the Constitution in light of new technologies, etc., and the speaker believes that the Justices will rule in a way that allows the Constitution to continue to work.
But the Supreme Court will only act when a case is brought before them. If that is to be a habeas corpus petition, first Congress must pass a law that extends the rules on habeas corpus into currently gray areas of the law, then the Supreme Court will decide if the law is Constitutional in whole or in part.
The Patriot Act “extensions” to habeas corpus basically apply to situations where killing the individual would be perfectly legal, but he or she is taken prisoner instead. If you engage in combat, and get killed, it is usually not a crime. If you surrender, and the surrender is accepted, then the courts can consider habeas corpus petitions. What if your surrender is not accepted? Sorry about that, but there are many situations where a surrender will be refused that do not conflict with the Geneva Accords. A simple example is that there is someone right behind you who is still shooting.
Anyway, for the Patriot Act provisions to apply to American citizens in the US, the President would have to declare martial law AND close the courts. The key phrase from the Constitution is “.The Congress shall have Power…To declare War, grant Letters of Marque andReprisal, and make Rules concerning Captures on Land and Water;” This is an “enumerated power” in Article I Section 8. This is clearly a war power, but one given to Congress. Congress usually delegates these powers (except to declare war) to the President or the military.
Hmmm. One thing you have to know to understand all this is that the President has almost unlimited powers in an emergency to do what it takes to prevent, say, the destruction of a major city. If a situation arises where nuclear weapons need to be launched NOW to avoid destruction of US cities? There they go. The limitations on the President in this sort of situation are set by international agreements on the laws of war. Civilian rules of evidence and other parts of criminal law don’t apply. If the decision is made to try a combatant in civil courts, in cases where the Geneva Accords allows it, the normal civilian rules of evidence apply then. But until that decision is made, or a valid writ of habeas corpus is issued, holding prisoners of war indefinitely–in accordance with the Geneva Accords–is what nice countries do.
Or to put it simply, soldiers don’t give Miranda warnings, and what you say to them may result in your immediate execution. (So can what you don’t say…) The US military tries to take prisoners wherever possible, but it isn’t always. For example, in the OBL raid, with one helicopter out of commission, taking prisoners was not possible. A lot of people who might have been taken prisoner were left behind, and alive. As I said, we try to be the good guys. If we throw a grenade into a room before entering, usually it is a “flash-bang” not a fragmentation grenade. But if circumstances require, you do toss the grenade without checking if any non-combatants are in the room.
Why are people so dead set against criticizing Obama for continuing & embellishing Bush/Cheney policies? Or was dislike for him mainly centered around his party affiliation? Obomba is as bad as what we had for 8 years. he just speaks eloquently & smiles when he screws us. His lack of Bush-like arrogance doesn’t mean he’s serving the people.
http://www.veteranstoday.com/2011/12/17/al-franken-stands-against-ndaa-abuses/
Obama also objected to the language in the bill and it wouldn’t have been changed had he not. See Nov SASC write up with objections on the record. Obama has pushed for civilian courts and the Senate refused to fund his executive order to close Gitmo.
There are TWO sets of laws in the USA, and they are divided by the socioeconomic classes of those who look to them for guidance. There are only TWO classes that make up the citizens of the USA, just as there were only two classes in most cultures throughout history. The USA is the modern version of the “Dark Ages”, where there is ‘Royalty’ infiltrated by conservative Christian extremists who make all the decisions on who to attack and what to offer the other ‘class’ as their rights and way of life. All this is paid for my the other ‘class’. That other ‘class’ are those called the “common folk”, who do what they are told, or get jailed, beaten, murdered, oppressed, etc… The US Constitution has been being attacked by conservative Christians since it was written. George W Bush destroyed it the most, and now all his supporters are whining because Obama is just following his lead.
The simple truth is that if our legislators had wanted to write this Bill to clearly eliminate the possibility of detaining American citizens without due process, they could easily have done it. Instead, what they did was eliminate the Bill of Rights and Habeas Corpus, while pretending that was not what they were doing. That is why the language is confusing. It is INTENDED to allow the pretense of “legality” to what they themselves know is unconstitutional. Welcome to Nazi Germany around 1938. This is how tyrants behave, every time. As for the language stating it does not effect other laws, look up the meaning of “preemption.” This is the middle of the end for everything we have ever loved about our country. The “Patriot Act” was the beginning. If we don’t stop this now, revolution will be the inevitable end. We had better start marching in the streets now, or we will be fighting in them soon. Maybe we have finally found something that will unite us – the reality that our government is literally, methodically, and deliberately trying to destroy our way of life. Congratulations, Osama, you are winning. We live in fear every day – of our own government. I call on every soldier, officer, law enforcement officer, or anyone with any love left for our country to take an oath not to enforce these sections of this statute. Such an oath is the only position that is in conformity with your oaths of office in which you swore to uphold the Constitution. “You are either with us or against us.” Remember those words? You are either with the people or against them. With this statute, the line is drawn.