Skip to main content

View Diary: How does the NDAA involve detention of American citizens? (70 comments)

Comment Preferences

  •  Let Senator Al Franken Explain that.... (4+ / 0-)

    Why I Voted Against the National Defense Authorization Act

    Yesterday, the Senate passed a bill that includes provisions on detention that I found simply unacceptable. These provisions are inconsistent with the liberties and freedoms that are at the core of the system our Founders established...

    The bill that passed on Thursday included several problematic provisions, the worst of which could allow the military to detain Americans indefinitely, without charge or trial, even if they're captured in the U.S.

    At their core, these provisions will radically alter how we investigate, arrest, and detain individuals suspected of terrorism...

    With this defense authorization act, Congress will, for the first time in 60 years, authorize the indefinite detention of U.S. citizens without charge or trial, according to its advocates. This would be the first time that Congress has deviated from President Nixon's Non-Detention Act. And what we are talking about here is that Americans could be subjected to life imprisonment without ever being charged, tried, or convicted of a crime, without ever having an opportunity to prove their innocence to a judge or a jury of their peers. And without the government ever having to prove their guilt beyond a reasonable doubt.

    I think that denigrates the very foundations of this country. It denigrates the Bill of Rights...

    If questions remain about how the cited passages in the legislation passed by the House and and Senate could be used to subject Americans....:

    "...to life imprisonment without ever being charged, tried, or convicted of a crime..."

    ...maybe calling Senator Franken's office and asking him, or perhaps reading some sources other than "Republicans for Obama" (really?) might help in verifying the facts.

    While the "republicans for Obama" may be certain about the wisdom of The Powers That Be in correctly interpreting the provisions of the Bill and guaranteeing the civil liberties of suspects at the time of a potential arrest, the Director of the FBI doesn't see things in quite such clear-cut terms:

    It also added language declaring that the new law would not restrict the existing authority of the Federal Bureau of Investigation in terrorism matters. Still, the bureau’s director, Robert S. Mueller III, testified on Wednesday that he remained concerned that it would introduce “uncertainty” about what should happen at the time of an arrest.
    •  Did you read Sec.1022(a)4(b) above? (1+ / 0-)
      Recommended by:
      leftist vegetarian patriot

      while I might not put that much faith in Republicans for Obama or Wired, the words of the bill seem to say that Americans cannot be detained indefinitely.

      You can't scare me, I'm sticking to the Union - Woody Guthrie

      by sewaneepat on Tue Jan 10, 2012 at 05:28:54 PM PST

      [ Parent ]

      •  No, read it more carefully. It says the (3+ / 0-)

        REQUIREMENT to detain indefinitely does not apply to US citizens.  There are two parts to the bill, one which REQUIRES indefinite detention of a more narrow class of people and another that merely PERMITS such detention.  Specifically, "The requirement to detain a person in military custody ..."

        There is no saving throw against stupid.

        by Throw The Bums Out on Tue Jan 10, 2012 at 05:46:53 PM PST

        [ Parent ]

        •  Okay, I see what you are saying, (1+ / 0-)
          Recommended by:
          leftist vegetarian patriot

          but it specifically says it does not change existing law in regard to permitting the holding .American citizens.

          You can't scare me, I'm sticking to the Union - Woody Guthrie

          by sewaneepat on Tue Jan 10, 2012 at 07:12:39 PM PST

          [ Parent ]

          •  And existing law is only 'settled' on a narrow (1+ / 0-)
            Recommended by:
            leftist vegetarian patriot

            set of circumstances, so 'not changing' something that is not yet decided by the Supreme Court is pretty easy.

            If it is currently not yet decided, it remains 'not yet decided'.  

            At best it says this law is not the determinative factor in the Court deciding how those new and different circumstances (on which it has not ruled) would be covered.

            It does not say this law should be ignored.  

            It does not say this law could not be used to support or justify a broader interpretation of those unsettled areas than might have otherwise been the case.

            At worst, by enacting this language into federal statute, the Congress and President may have tipped the balance that without it may have gone the other way in how the Supreme Court would rule.

            Many people are reading a lot reassurance into those two 'saving' paragraphs that simply is not there once you understand the status of the existing law and how little detail was actually contained in the AUMF law.  

            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 Tue Jan 10, 2012 at 07:32:11 PM PST

            [ Parent ]

      •  Yes, but IANAL, and the law can be interpreted... (2+ / 0-)

        ...in different ways, which is why there is sometimes confusion and disagreement over the meaning of certain words or phrases, and in the end can only be resolved in the courts.  For example, here's another interpretation of the above:   (emphasis mine)

        There has been a great deal of confusion over whether the indefinite detention provisions in the...(NDAA) apply to US citizens or not – the simple answer is that it is too early to tell...

        The NDAA drafters draw a clear distinction between US citizens and non-US citizens...

        ...The NDAA does not “require” that US citizens be treated in a like manner. Indeed Section 1021(e) of the Act appears to offer US citizens some protection stating:

           

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

        This might seem promising but, unfortunately, the existing the law does allow for the detention of a US national on US soil as an enemy combatant under the law of armed conflict.

        In a case heard during World War II, Ex parte Quirin, the Supreme Court upheld the executive’s right to hold a dual US-German national, Herbert Hans Haupt, as an enemy combatant...His parents were both convicted of treason for not turning their son into the police..

        The article goes on to discuss the debate in Congress over these issues, and here's a snip:  

        During the debate Lindsay Graham also cited the shockingly mismanaged Jose Padilla case as presenting further legal precedent for holding US citizens...

        And in summary:  

        ...As so often with the passage of legislation, the full implications of the NDAA will only become clear over time as the manner in which it is put to use by this, and successive, administrations is tested in the courts...
        •  The practical problem is that for the man or woman (2+ / 0-)

          that gets detained without right to trial, their remedy is a long way off and by the time they get there, the person they once were might no longer exist.  

          In addition, once you're detained in some black site, how does the process of challenging your detention begin?  

          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 Tue Jan 10, 2012 at 06:27:54 PM PST

          [ Parent ]

    •  Franken is correct. The diarist is incorrect. (1+ / 0-)
      Recommended by:
      Into The Woods

      The statute absolutely does allow indefinite military detention of persons claimed by the military to be terrorist supporters, which amounts to an abolition of the most fundamental right of habeas corpus (the right to insist that a court examine whether a detention is lawful).

      •  The reason he says "life sentence" is something (0+ / 0-)

        that Feinstein referred to in this new law but did not really go into the detail of.

        The additional Presidential detention power will exist until the end of 'hostilities'.

        Before NDAA 2012 that would have been easier to limit to the Authorization for Use of Military Force (AUMF) relating to 9-11, Afghanistan, al-Qaeda and the Taliban.

        Under NDAA 2012, the parties and timeline that "hostilities" can be interpreted to include goes beyond what was stated in AUMF, so until and unless both AUMF is repealed AND the 'war on terror' is officially deemed to be over, there will be a strong argument that the Presidential detention power covering American citizens will still exist.  

        Or until section 1021 of NDAA 2012 is repealed.  

        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 Tue Jan 10, 2012 at 06:33:02 PM PST

        [ Parent ]

    •  His uncertainty related more to whether the FBI or (1+ / 0-)
      Recommended by:
      kurious

      military would have the final say in detention, and not so much whether Constitutional rights of individuals that might be swept up in the application of this law would be infringed.

      The final bill contained a small amendment that addressed the administrations concerns in that regard.

      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 Tue Jan 10, 2012 at 06:23:37 PM PST

      [ Parent ]

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site