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View Diary: Indefinite detention: Can we ask how the United States got here? (198 comments)

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  •  He did make a stand- no roll back of Habeas Corpus (2+ / 0-)
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    Jeff Simpson, kait

    People are mostly concerned with Section 1021 and 1022.  Let me paraprase what they now say thanks to Obama veto threats and Democratic Amendments.

    Paraphrase of Section 1021 of the NDAA – After 9-11 Congress passed the Authorization to Use Military Force (AUMF) and this bill affirms the AUMF allows detention of terrorist of Al Quida and those helping them … but this is a useless section because we expressly say the President powers are what they were before the NDAA and we don’t intend this section to be any expansion over existing laws and the court decisions interpreting them.  

    Paraphrase of Section 1022 - The Military is going to hold Al Quida terrorist unless the President doesn’t want the military to do it.   The requirement that the Military has dibs doesn’t count when the person in question is a citizen.  And if the FBI is involved, they can continue to do what they were doing anyways.

    That's it.  End of paraphrase.

    There are some things such as the Gitmo provisions that argue for a veto instead of a signing statement.  But not detention provisions.  This is a funding bill.  It isn't a civil rights bill.  We are in much the same place as before signing the NDAA as regards detention.  

    The whole premise of this diary is wrong.  It isn't alone.  There is a lot of over reaction.  The ACLU is a group I love but they are wrong.  They say:

    “Under the Bush administration, similar claims of worldwide detention authority were used to hold even a U.S. citizen detained on U.S. soil in military custody. The ACLU believes that any military detention of American citizens or others within the United States is unconstitutional and illegal, including under the NDAA.”

    There is no “under the NDAA”.  That’s why Difi’s bill doesn’t amend the NDAA.  

    From the senators site:

     
     “The Due Process Guarantee Act of 2011 amends the Non-Detention Act of 1971 by providing that a Congressional authorization for the use of military force does not authorize the indefinite detention—without charge or trial—of U.S. citizens who are apprehended domestically.”

    http://www.feinstein.senate.gov/...

    Our problem is the Authroization to Use Military Force.  That's what was discussed in the Hamdi decision.  And we know what the Supreme Court says about that issue for citizens.  Says Justice O’Connor in Hamdi v Rumsfield:

    "At this difficult time in our Nation’s history, we are called upon to consider the legality of the Government’s detention of a United States citizen on United States soil as an “enemy combatant” and to address the process that is constitutionally owed to one who seeks to challenge his classification as such….

     …His name is Yaser Esam Hamdi. Born an American citizen in Louisiana in 1980, Hamdi moved with his family to Saudi Arabia as a child. By 2001, the parties agree, he resided in Afghanistan. At some point that year, he was seized by members of the Northern Alliance, a coalition of military groups opposed to the Taliban government, and eventually was turned over to the United States military….

     The AUMF authorizes the President to use “all necessary and appropriate force” against “nations, organizations, or persons” associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the “necessary and appropriate force” Congress has authorized the President to use.

     … Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress’ grant of authority for the use of “necessary and appropriate force” to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan.  … The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who “engaged in an armed conflict against the United States.” If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of “necessary and appropriate force,” and therefore are authorized by the AUMF. …

     … We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker…"

    If we want to extend this type due process to others than citizens that is all well and good but has nothing to do with the NDAA.  That is a funding bill.  

    To extend these protections to others we have to do away with the whole concept of a war on terror.  It is a worthy goal.  But not worthy enough to make me vote for Ron Paul.

    Mrick

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