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View Diary: Montanans Launch Recall of Senators Who Approved NDAA Military Detention. Merry Christmas, US Senate (104 comments)

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  •  The SPLC (0+ / 0-)

    would surely have something to say about that.

    There is also the issue that recall of members of congress is unconstitutional, no matter what a state statute says, and that the NDAA doesn't do what the diarist claims it does, which is probably why so many people neveretheless voted for it.  But yeah, Oathkeepers.  so right they're left.

    "This world demands the qualities of youth: not a time of life but a state of mind[.]" -- Robert F. Kennedy

    by Loge on Tue Dec 27, 2011 at 08:31:30 AM PST

    [ Parent ]

    •  Right the SPLC slammed Oathkeepers (0+ / 0-)

      as "paranoids" who warned of "conspiracy theories" like the government deploying the US military to arrest American citizens.  Can you imagine that?

      •  i can imagine that the SPLC (0+ / 0-)

        so labeled them, yes.

        which goes back to "the NDAA doesn't do what the diarist claims it does."  Based on language in 1031(e) and 1032 of the NDAA, I do not believe there is authority to detain U.S. citizens in U.S. territory, much less without trial, as that would be in violation of not just the Constitution but the Military Commissions Act -- that which the NDAA specifically references and does not expand upon or limit. And if that's not authorized as a "final disposition," there isn't authority for "custody pending final disposition" either.  I've already explained this to you.

        If you think Montana will elect more liberal senators, then perhaps campaign and vote for one.  Everything else is at best bullshit and at worst legitimizing the type of people who worry about FEMA camps and gun confiscation.  And the nicest thing you can say about them is they're crackpots.  Usually racist crackpots.  

        "This world demands the qualities of youth: not a time of life but a state of mind[.]" -- Robert F. Kennedy

        by Loge on Tue Dec 27, 2011 at 11:58:44 AM PST

        [ Parent ]

        •  And I've already explained this to you (0+ / 0-)

          There is no need to bother with "what you believe."  Americans can make up their own minds.

           Here is the language in substance of Section 1021 of the final Conference Committee report (the final language,) to which the 13 senators who voted no objected (Cardin (D-MD), Coburn (R-OK), Crapo (R-ID), DeMint (R-SC), Durbin (D-IL), Franken (D-MN), Harkin (D-IA), Lee (R-UT), Merkley (D-OR), Paul (R-KY), Risch (R-ID), Sanders (I-VT),Wyden (D-OR)).  Do you think right-wingers like DeMint would have voted no if he were not getting an earful from his constituents about a defense bill?

          Section 1021 in substance:

          "Congress affirms that the authority of the President to detain ...A person who was a part of or substantially supported al-Qaeda...or associated forces...including any person who has...directly supported such hostilities in aid of such enemy forces...The disposition of a person...may include...Detention...without trial until the end of the hostilities..."

          That's the skinny, the sentence diagram parts as a court would read it.  Of course they fluff it up with legalese so people lose the thread, the clear meaning.

          The full text of 1021 here.

          “Substantial support” of an “associated force” may imply citizens engaged in innocuous, First Amendment activities.  Rep. Tom McClintock said:

          Would “substantial support” of an “associated force,” mean linking a web-site to a web-site that links to a web-site affiliated with al-Qaeda? We don’t know.

          Direct support of such hostilities in aid of enemy forces may be construed as free speech opposition to U.S. government policies, aid to civilians, or
          acts of civil disobedience.

          Section 1021 also reads: "Nothing in this section shall be construed to affect existing law."  But "existing law" may be construed to refer to Padilla v. Rumsfeld in the Fourth Circuit Court of Appeals, which upheld the government's claim of authority to hold Americans arrested on American soil indefinitely.

          People can go to the Conference Committee report and piece it together for themselves.  There was never a more important time to do so.  Well?  

          •  existing law (0+ / 0-)

            could not, for purposes of the hypothetical i raised, "be construed" to refer to a court decision which was (a) limited to detention in the United States of someone "who took up arms on behalf of that enemy and against our country in a foreign combat zone of that war," (b) dealt with authority per statute, not inherent Article III power; (c) was superseded by statute -- the MCA as construed by Boumedienne preserves habeas rights but also, and unlike the state of the law at the time of the 4th circuit Padilla decision, would require a U.S. citizen be at minimum charged before a military tribunal; and (d) was mooted by the government before it could go to the Supreme Court by filing subsequent criminal charges. There is a right to take U.S. citizens into military custody, "pending disposition," but that disposition, as applied to U.S. citizens, does not permit detention without charges and not without habeas review.  So, as i noted, the NDAA does not create new or unlimited powers, and that decision doesn't make 1021(e) a dead letter.

            That's why the 86 senator yes figure is a bit more interesting to me -- i could give a shit why DeMint does anything he does; he's dumber than I am and not a lawyer.  The caveat in the  Padilla case also fleshes out the hypo about "could bloggers be detained?"  I would think a court hearing a habeas petition might take language like "material" and "substantial" a bit more seriously than Rep. McClintock. What he does and does not know is not the final say as to what anyone who can read the statute might or might not know.  That would affect both the statutory power to take into custody and final disposition, and i think the answer is it doesn't exist in  the extreme examples -- the notion the text of a statute would have to be misconstrued to reach a result is not an argument against the text.

            and while, yes, people can decide certain things for themselves, once you make that concession, it's not treason to think otherwise (though it never was); thinking for oneself requires greater precision than you are implying exists; and federal recall remains completely unconstitutional -- the Supreme Court can on some level change their minds about anything, but that does not mean that any interpretation of a bill is equally valid or has any predictive value.

            the irony is i think all of this is a waste of time as a policy matter, and possibly unconstitutional as applied, though not per se.  but it's not an imminent threat, since the Obama administration took the really offending parts out.  In the same way i think of the Senate Protect IP act as pointless but not the threat that the House SOPA is.  

            "This world demands the qualities of youth: not a time of life but a state of mind[.]" -- Robert F. Kennedy

            by Loge on Tue Dec 27, 2011 at 01:14:41 PM PST

            [ Parent ]

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