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View Diary: The Rest of What Levin Said on NDAA Provisions (71 comments)

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  •  Appearances Can be Deceiving and Dangerous. (0+ / 0-)
    So 1031 is all about codifying and clarifying the already existing detainee provisions as defined by the AUMF, but not fundamentally changing any of them.  Apparently, those provisions already exclude U.S. citizens.
    (emphasis added)

    Appearances can be decieving.  

    As Sen Feinstein said in explaining her backup amendment (that passed) in the Senate version:

    The sponsors of the bill believe that current law authorizes the detention of U.S. citizens arrested within the United States, without trial, until ``the end of the hostilities'' which, in my view, is indefinitely.

      Others of us believe that current law, including the Non-Detention Act that was enacted in 1971, does not authorize such indefinite detention of U.S. citizens arrested domestically. The sponsors believe that the Supreme Court's Hamdi case supports their position, while others of us believe that Hamdi, by the plurality opinion's express terms, was limited to the circumstance of U.S. citizens arrested on the battlefield in Afghanistan, and does not extend to U.S. citizens arrested domestically. And our concern was that section 1031 of the bill as originally drafted could be interpreted as endorsing the broader interpretation of Hamdi and other authorities.

       So our purpose in the second amendment, number 1456, is essentially to declare a truce, to provide that section 1031 of this bill does not change existing law, whichever side's view is the correct one. So the sponsors can read Hamdi and other authorities broadly, and opponents can read it more narrowly, and this bill does not endorse either side's interpretation, but leaves it to the courts to decide.

    Excerpts of the Congressional Record of this debate (including the above) can be found here:

    National Defense Authorization Act - Detention of US Citizens - Feinstein Amd Text & Debate

    Unfortunately, as I've detailed elsewhere, the language of this bill very clearly goes beyond what even the sponsors of the bill say  they believe is the current law by expanding from "combatant" to an ill defined level of 'support' and expanding the 'terrorists' to persons or organizations that 'associated' with those originally targetted, and defining the act of hostilities that forms the foundation for this extraordinary treatment as including acts unrelated to 9-11 and acts taken against any of dozens of other countries included in an undefined "coalition partners".

    Someone in a very expensive suit is at the front door and says he wants to foreclose on our democracy. Where should I tell him he can put his robosigning pen?

    by Into The Woods on Wed Dec 14, 2011 at 07:20:37 PM PST

    •  from your comment: "Sure looks like it to me." (0+ / 0-)

      as you say, appearances can be deceiving.

      1031 clarifies, but is subordinate to, aumf.  it cannot do anything aumf doesn't authorize, especially since difi's amendment did pass.  1032 is also subordinate to 1031.

      some of the changes put into the bill are things like any prisoner can be transferred to civilian custody/courts at any time.  the military doesn't get to hold people indefinitely.  and even those who it's deemed they can hold are entitled to annual review.


      difi's amendment for section 1031:

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

      pre-existing law:


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

      My goal is to make the world safe for anarchy. - 4Freedom

      by Cedwyn on Thu Dec 15, 2011 at 05:55:50 AM PST

      [ Parent ]

      •  The Non-Detention Act doesn't settle matters (1+ / 0-)
        Recommended by:
        Into The Woods

        because several people assert that the 2001 Authorization of the Use of Military Force does, precisely, authorize the imprisonment and detention of US citizens.  And the Supreme Court took that position in Hamdi.  People have widely differing views about what the 2001 AUMF authorizes.  That is why the Feinstein Amendment doesn't offer all the protection you think it does.  

      •  Why is NDAA "subordinate" to AUMF (0+ / 0-)

        First, NDAA is the more recent.
        Second, it is more specific.
        Third, by its reference to AUMF, given the broad language of AUMF, NDAA can be asserted to be a mere "clarification", in this case "clarifying' that when AUMF said "combatant" we really meant to include "noncombatant", and when AUMF said al Qaeda and the Taliban, we really meant to include any organization that was "associated" (whatever that means) with either group on or after 9-11, and when AUMF said "attacks on September 11" we really meant any attacks on or since, including attacks not just on the United States, but on any of dozens of other countries counted as "coalition partners".

        If it does not change the law, there is no need to pass new law.  

        So it 'clarifies' the law and from the mere language that says it is not intended to "affect existing law or authorities" both sides takes away the interpretation that this affirms their own very different interpretations of both existing law and the existing authorities granted under those laws - except by its own language it is expanding these powers beyond anything previously upheld in AUMF.  

        Someone in a very expensive suit is at the front door and says he wants to foreclose on our democracy. Where should I tell him he can put his robosigning pen?

        by Into The Woods on Thu Dec 15, 2011 at 02:27:02 PM PST

        [ Parent ]

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