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The Constitution. Let’s Follow It.

Title X, Subtitle D of the National Defense Authorization Act is neither well-considered, nor do I think it’s Constitutional – even foreigners on American soil are entitled to basic Constitutional protections.

If the government uncovers an al Qaeda cell that plotting some attack on US citizens, it already has myriad tools at its disposal to detain and try the accused.

And that’s the key here – the NDAA doesn’t really call for trial. Indefinite detention and interrogation of people on American soil is a complete abrogation of the Constitution that ought not stand (given an apolitical Supreme Court).  I’m not one to jump on the “police state” bandwagon, because I’ve had the experience of actually spending extended periods of time living in one. But giving the military and police agencies the power to indefinitely detain people based on mere accusations and suspicions brings us ever-closer to an America where people are detained arbitrarily and capriciously based on denunciations and evidence which may not be adequate to convict someone in military or civilian court.

A decade of paranoia and a lousy economy aren’t making anyone any freer, and codifying the indefinite pretrial incarceration of enemy combatants on de jure American soil is contrary to our national interests.  The full text of the provisions in question is after the jump.

SEC. 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.

(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).

SEC. 1032. REQUIREMENT FOR MILITARY CUSTODY.

(a) Custody Pending Disposition Under Law of War-
(1) IN GENERAL- Except as provided in paragraph (4), the Armed Forces of the United States shall hold a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107-40) in military custody pending disposition under the law of war.
(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.
(3) DISPOSITION UNDER LAW OF WAR- For purposes of this subsection, the disposition of a person under the law of war has the meaning given in section 1031(c), except that no transfer otherwise described in paragraph (4) of that section shall be made unless consistent with the requirements of section 1033.
(4) WAIVER FOR NATIONAL SECURITY- The Secretary of Defense may, in consultation with the Secretary of State and the Director of National Intelligence, waive the requirement of paragraph (1) if the Secretary submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.
(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.
(2) LAWFUL RESIDENT ALIENS- The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.
(c) Implementation Procedures-
(1) IN GENERAL- Not later than 60 days after the date of the enactment of this Act, the President shall issue, and submit to Congress, procedures for implementing this section.
(2) ELEMENTS- The procedures for implementing this section shall include, but not be limited to, procedures as follows:
(A) Procedures designating the persons authorized to make determinations under subsection (a)(2) and the process by which such determinations are to be made.
(B) Procedures providing that the requirement for military custody under subsection (a)(1) does not require the interruption of ongoing surveillance or intelligence gathering with regard to persons not already in the custody or control of the United States.
(C) Procedures providing that a determination under subsection (a)(2) is not required to be implemented until after the conclusion of an interrogation session which is ongoing at the time the determination is made and does not require the interruption of any such ongoing session.
(D) Procedures providing that the requirement for military custody under subsection (a)(1) does not apply when intelligence, law enforcement, or other government officials of the United States are granted access to an individual who remains in the custody of a third country.
(E) Procedures providing that a certification of national security interests under subsection (a)(4) may be granted for the purpose of transferring a covered person from a third country if such a transfer is in the interest of the United States and could not otherwise be accomplished.
(d) Effective Date- This section shall take effect on the date that is 60 days after the date of the enactment of this Act, and shall apply with respect to persons described in subsection (a)(2) who are taken into the custody or brought under the control of the United States on or after that effective date.

SEC. 1033. REQUIREMENTS FOR CERTIFICATIONS RELATING TO THE TRANSFER OF DETAINEES AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA, TO FOREIGN COUNTRIES AND OTHER FOREIGN ENTITIES.

(a) Certification Required Prior to Transfer-
(1) IN GENERAL- Except as provided in paragraph (2) and subsection (d), the Secretary of Defense may not use any amounts authorized to be appropriated or otherwise available to the Department of Defense for fiscal year 2012 to transfer any individual detained at Guantanamo to the custody or control of the individual’s country of origin, any other foreign country, or any other foreign entity unless the Secretary submits to Congress the certification described in subsection (b) not later than 30 days before the transfer of the individual.
(2) EXCEPTION- Paragraph (1) shall not apply to any action taken by the Secretary to transfer any individual detained at Guantanamo to effectuate–
(A) an order affecting the disposition of the individual that is issued by a court or competent tribunal of the United States having lawful jurisdiction (which the Secretary shall notify Congress of promptly after issuance); or
(B) a pre-trial agreement entered in a military commission case prior to the date of the enactment of this Act.
(b) Certification- A certification described in this subsection is a written certification made by the Secretary of Defense, with the concurrence of the Secretary of State and in consultation with the Director of National Intelligence, that the government of the foreign country or the recognized leadership of the foreign entity to which the individual detained at Guantanamo is to be transferred–
(1) is not a designated state sponsor of terrorism or a designated foreign terrorist organization;
(2) maintains control over each detention facility in which the individual is to be detained if the individual is to be housed in a detention facility;
(3) is not, as of the date of the certification, facing a threat that is likely to substantially affect its ability to exercise control over the individual;
(4) has taken or agreed to take effective actions to ensure that the individual cannot take action to threaten the United States, its citizens, or its allies in the future;
(5) has taken or agreed to take such actions as the Secretary of Defense determines are necessary to ensure that the individual cannot engage or reengage in any terrorist activity; and
(6) has agreed to share with the United States any information that–
(A) is related to the individual or any associates of the individual; and
(B) could affect the security of the United States, its citizens, or its allies.
(c) Prohibition in Cases of Prior Confirmed Recidivism-
(1) PROHIBITION- Except as provided in paragraph (2) and subsection (d), the Secretary of Defense may not use any amounts authorized to be appropriated or otherwise made available to the Department of Defense to transfer any individual detained at Guantanamo to the custody or control of the individual’s country of origin, any other foreign country, or any other foreign entity if there is a confirmed case of any individual who was detained at United States Naval Station, Guantanamo Bay, Cuba, at any time after September 11, 2001, who was transferred to such foreign country or entity and subsequently engaged in any terrorist activity.
(2) EXCEPTION- Paragraph (1) shall not apply to any action taken by the Secretary to transfer any individual detained at Guantanamo to effectuate–
(A) an order affecting the disposition of the individual that is issued by a court or competent tribunal of the United States having lawful jurisdiction (which the Secretary shall notify Congress of promptly after issuance); or
(B) a pre-trial agreement entered in a military commission case prior to the date of the enactment of this Act.
(d) National Security Waiver-
(1) IN GENERAL- The Secretary of Defense may waive the applicability to a detainee transfer of a certification requirement specified in paragraph (4) or (5) of subsection (b) or the prohibition in subsection (c) if the Secretary, with the concurrence of the Secretary of State and in consultation with the Director of National Intelligence, determines that–
(A) alternative actions will be taken to address the underlying purpose of the requirement or requirements to be waived;
(B) in the case of a waiver of paragraph (4) or (5) of subsection (b), it is not possible to certify that the risks addressed in the paragraph to be waived have been completely eliminated, but the actions to be taken under subparagraph (A) will substantially mitigate such risks with regard to the individual to be transferred;
(C) in the case of a waiver of subsection (c), the Secretary has considered any confirmed case in which an individual who was transferred to the country subsequently engaged in terrorist activity, and the actions to be taken under subparagraph (A) will substantially mitigate the risk of recidivism with regard to the individual to be transferred; and
(D) the transfer is in the national security interests of the United States.
(2) REPORTS- Whenever the Secretary makes a determination under paragraph (1), the Secretary shall submit to the appropriate committees of Congress, not later than 30 days before the transfer of the individual concerned, the following:
(A) A copy of the determination and the waiver concerned.
(B) A statement of the basis for the determination, including–
(i) an explanation why the transfer is in the national security interests of the United States; and
(ii) in the case of a waiver of paragraph (4) or (5) of subsection (b), an explanation why it is not possible to certify that the risks addressed in the paragraph to be waived have been completely eliminated.
(C) A summary of the alternative actions to be taken to address the underlying purpose of, and to mitigate the risks addressed in, the paragraph or subsection to be waived.
(e) Definitions- In this section:
(1) The term `appropriate committees of Congress’ means–
(A) the Committee on Armed Services, the Committee on Appropriations, and the Select Committee on Intelligence of the Senate; and
(B) the Committee on Armed Services, the Committee on Appropriations, and the Permanent Select Committee on Intelligence of the House of Representatives.
(2) The term `individual detained at Guantanamo’ means any individual located at United States Naval Station, Guantanamo Bay, Cuba, as of October 1, 2009, who–
(A) is not a citizen of the United States or a member of the Armed Forces of the United States; and
(B) is–
(i) in the custody or under the control of the Department of Defense; or
(ii) otherwise under detention at United States Naval Station, Guantanamo Bay, Cuba.
(3) The term `foreign terrorist organization’ means any organization so designated by the Secretary of State under section 219 of the Immigration and Nationality Act (8 U.S.C. 1189).
(f) Repeal of Superseded Authority- Section 1033 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (Public Law 111-383; 124 Stat. 4351) is repealed.


  • Jesse

    This is truly vile legislation. How insane is it that the great hope for the Democratic party is the guy pushing for this bullshit? You guys must be utterly gutted by his betrayal of the people, but I don’t see much of it. Thanks, Alan, for bringing it up here. My feeling is the “get them ter’rists!” mantra will overwhelm common sense. No one seems to give a crap.

    But why do commentators demand we follow the Constitution only some of the time? The Constitution sets forth a very limited set of roles and responsibilities for the federal government, and other actions were delegated to the states. And yet there seems to be no limit whatsoever to what the Feds can do. Why not fight for the Constitution ALL the time?

  • Mike Chmiel

    The immediate question for me is, “why now?” This is the kind of fear-based paranoid law I could see being passed a month after 9/11, but just seems like a baffling power grab more than a decade later.

    I understood (but still abhorred) the weak-spined Democrats who went along with the Patriot Act. But this legislation has barely registered a blip in the national conversation. Anyone could vote this down and it would be forgotten well before the next electoral cycle.

  • Lasting change only happens in our country when leaders buck the trend of their party and Nixon goes to China. Democrats have to balance budgets and Republicans have to cut military spending – leaders have to side with the opposition (when its correct) while their partisan-first supporters give them a free pass.

    Which is why this is so disturbing. Obama will find willing partners on the fear-first right. His supporters will look the other way. If GWB was signing this bill, there would be plenty of police state bandwagons to jump on. But principled opposition that puts policy over party is hard to find in this country, and since a Democrat is codifying the heavy hand, the bill sails with nary a whisper.

  • Jay

    Just an amateur opinion. This law will be used and expanded to fight many different types of terrorism. We have a war on terrorism, war on drugs which uses some of the same descriptions, and probably some other wars. The RICO law was written and justified for one type of criminial element. Since that time it scope has expanded for political purposes.

  • Thomas Stanford

    Brian Higgins, Kirstin Gillibrand, and Charles Schumer all voted FOR this. Slaughter did not.

  • JSmith

    Mike: I read an opinion piece today from the Buffalo Peace Center that gave a possibility for the “why now?” question. The Iraq War has ended, and so the government needs a new reason to keep the military mobilized and the money flowing to defense contractors. The answer: declare the United States itself part of the new battleground of endless war.

  • Thomas Stanford

    Mr Higgins doesn’t seem to think it’ll ever apply to us:

    http://higgins.house.gov/2011/12/statement-by-congressman-higgins-on-national-defense-authorization-act-vote.shtml

    he’s either a liar, completely ignorant, or a total moron. Doesn’t seem to care about the precedent it sets, or the message it sends. Its not as if the Goverment HASN’T been doing this already (see: Bradley Manning… still no charges against him)… enfuriating. Artvoice, you really need to take the reins on this and go after him (and any other local or NY representative who supported this like Gillibrand and Schumer).

  • Thomas Stanford

    you can add Tom Reed and Kathy Hochul to the “thanks for killing our Bill of Rights” list as well…

  • The NDAA will only go to further stifle our Constitutional Rights without the approval of the Americans, just as the Patriot Act was adopted WITHOUT public approval or vote just weeks after the events of 9/11. A mere 3 criminal charges of terrorism a year are attributed to this act, which is mainly used for no-knock raids leading to drug-related arrests without proper cause for search and seizure. The laws are simply a means to spy on our own citizens and to detain and torture dissidents without trial or a right to council. You can read much more about living in this Orwellian society of fear and see my visual response to these measures on my artist’s blog at http://dregstudiosart.blogspot.com/2011/09/living-in-society-of-fear-ten-years.html