The real verbiage of the NDAA 2012

[chunkymonster]

There has been a lot of talk lately about how the recent vote of the National Defense Authorization Act 2012 will allow indefinite military detention of American citizens. A simple google search reveals multiple articles and criticisms of how the NDAA 2012 is an infringement on American liberty and implements a police/military state.

However, a easy search at THOMAS.gov for Bill S.1867, Section 1031, 1032, and 1033, shows that if anyone or any organization (ahem*ACLU*ahem) had actually read the bill would realize that the Bill DOES NOT allow such military action.

You can read it here; S.1867 National Defense Authorization Act for Fiscal Year 2012

*NOTE* - Emphasis mine

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) 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.

Also, here is a link to video with a reading, review, and layman's analysis of Bill S.1867; It's Not Time to Panic. Be aware that this is a 20+ minute video but worth sitting through.

In fairness, a number of the criticisms came before the now language in the Bill was changed. But, this is not to say that Americans should not be concerned about this Bill or should not lobby your Representative to amend the Senate Bill, but the contrary.

In the words of Benjamin Franklin;

They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.

 

[Reynod]

It looks pretty clear cut to me.

I'd have no concerns about it.

I like how it refers to 'coalition partners" which tells me the US is extending its reach to protect others less able to themselves.

That's a good thing.

Then again I am not suffering from paranoia and looking for conspiracy theories inside the lolly wrapper I just discarded from a fantale.

Why does one of the pokemon have his own spaceship?

 

[Dont_Tread_On_Me]

Hi,
I recently learned of NDAA and was just researching it, trying to see for myself if what they say is true (I'm neither left or right, R or D, in politics--so please don't misinterpret this as an attack by conspiracy theorists--but I like to keep informed, and I definitely like my constitutional rights). I ran into your post and really hope your interpretation is right. (I certainly like Benjamin Franklin words you included in your explanation

What worries me, though--and please tell me what you think-- are the following parts:

"(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force." To me that sounds the army can hold me indefinitely (if I'm suspected of being involved with Al Qaeda scum) until the end of war -- if we're speaking of a war like the War on Terror, that could easily be forever.

"(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." After careful reading, I understand this as basically saying that the army is required (as the title of the section says) to detain those hostile to the US (Al Qaeda suspects, etc.). That's all ok, but then the following quote could be interpreted in a scary way:

"(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." It sounds fine and safe but, after I read it a few times I realized that the word "requirement" might be the key word in this paragraph -- it seems to be saying that the "requirement" doesn't apply to us. The only logical meaning of this (that I can see at this moment) is that the army is not "required" to detain us, the citizens, if we're suspected of aiding terrorists in some way. But, in strict terms, if you're not "required" to do something doesn't mean you "can't" do it. It just means you're not obliged, although you can do it if you so desire. So, then the army has to detain non-American suspects, but it doesn't have to detain American suspects. With non-Americans it's necessary, with Americans it's not necessary. But what scares me is that, in strict logical (and thus legal) terms, if something is not necessary it doesn't mean it's impossible or prohibited--it means it's optional.

When I look at it this way (and I've been thinking about this since yesterday, stirred by an article I ran into by accident), it seems to leave a too large of a loophole for the government to potentially use to abuse its mandate--I'm not saying the creators of this bill want to detain Americans or that we'll plunge into fascism in two weeks, but the wording in these matters should be clear and definitive, so as not to give someone even the slightest shadow of idea that they could step on our constitutional, hard-earned citizen rights (we surely have our share of fools in this country--I can imagine, say, a crazed army officer intent on saving the country from terrorists abusing this loophole--if it really is a loophole). Remember the first Marine Corps banner and slogan? DONT TREAD ON ME

Anyway, what do you think in light of my (humble) interpretation? I sincerely hope you'll prove it wrong!

 

[jsc]

"(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."

DTOM, I think I agree with you. That clause seems to say, "We do not need to detain him, but we can. Or we can just shoot him."

And that, we have done.

 

[chunkymonster]

Hi,
I recently learned of NDAA and was just researching it, trying to see for myself if what they say is true (I'm neither left or right, R or D, in politics--so please don't misinterpret this as an attack by conspiracy theorists--but I like to keep informed, and I definitely like my constitutional rights). I ran into your post and really hope your interpretation is right. (I certainly like Benjamin Franklin words you included in your explanation

What worries me, though--and please tell me what you think-- are the following parts:

"(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force." To me that sounds the army can hold me indefinitely (if I'm suspected of being involved with Al Qaeda scum) until the end of war -- if we're speaking of a war like the War on Terror, that could easily be forever.

"(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." After careful reading, I understand this as basically saying that the army is required (as the title of the section says) to detain those hostile to the US (Al Qaeda suspects, etc.). That's all ok, but then the following quote could be interpreted in a scary way:

"(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." It sounds fine and safe but, after I read it a few times I realized that the word "requirement" might be the key word in this paragraph -- it seems to be saying that the "requirement" doesn't apply to us. The only logical meaning of this (that I can see at this moment) is that the army is not "required" to detain us, the citizens, if we're suspected of aiding terrorists in some way. But, in strict terms, if you're not "required" to do something doesn't mean you "can't" do it. It just means you're not obliged, although you can do it if you so desire. So, then the army has to detain non-American suspects, but it doesn't have to detain American suspects. With non-Americans it's necessary, with Americans it's not necessary. But what scares me is that, in strict logical (and thus legal) terms, if something is not necessary it doesn't mean it's impossible or prohibited--it means it's optional.

When I look at it this way (and I've been thinking about this since yesterday, stirred by an article I ran into by accident), it seems to leave a too large of a loophole for the government to potentially use to abuse its mandate--I'm not saying the creators of this bill want to detain Americans or that we'll plunge into fascism in two weeks, but the wording in these matters should be clear and definitive, so as not to give someone even the slightest shadow of idea that they could step on our constitutional, hard-earned citizen rights (we surely have our share of fools in this country--I can imagine, say, a crazed army officer intent on saving the country from terrorists abusing this loophole--if it really is a loophole). Remember the first Marine Corps banner and slogan? DONT TREAD ON ME

Anyway, what do you think in light of my (humble) interpretation? I sincerely hope you'll prove it wrong!

Wow! great reply and post. +1

Not being a lawyer, this is only my opinion, which makes this largely academic. That's my disclaimer and I'm sticking to it!

I think we have to be careful in taking parts of the NDAA and interpreting them without consideration for the law as a whole. On the whole, the way the law reads is that you would have to be proved as "(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." - OR - as "(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." So with said, I have confidence that as long as you are not overtly aiding and abetting al-Qaeda, the Taliban, or other "enemies" then there is no worry that the military could detain an American citizen indefinitely. Regardless of the NDAA, this is America and we still abide by "innocent until proven guilty" and I believe that was the reason for changing the verbiage prior to the Senate vote to now read, "(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." - AND - "(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."

Considering the above, I agree with your statement, "To me that sounds the army can hold me indefinitely (if I'm suspected of being involved with Al Qaeda scum) until the end of war -- if we're speaking of a war like the War on Terror, that could easily be forever." That is to say, that if you are proven to aid and abet al-Qaeda or the Taliban that the military could potentially hold you indefinitely. But to an extent, the NDAA is ambiguous and even contradictory because of the the verbiage stating the NDAA does not extend to American citizens or lawful resident aliens.

What I also believe is that this version of the NDAA potentially opens up the door for a re-definition of "(2) A person...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." My reasoning for this is the push several years ago to name the Militia Groups here in America as being engaged in hostilities towards the United States. I also remember the egregious abuse of federal powers and overstepping BATFE jurisdiction against the Branch Dividians in Feb 1993, Randy Weaver at Ruby Ridge in 1992, spudgun crackdowns, and systematic harassment of FFL's. Surely these are examples of the BATFE abuses against American citizens and not U.S. Military abuses against American citizens, but if the NDAA expressly excepts American citizens from indefinite military detention, the BATFE abuses shows that there are other Federal Agencies that are able to detain American citizens found to be engaging in anti-American hostilities. If you want to get technical and conspiratorial about it, the Militias, TEA Party, and/or Occupy movement could (given the right circumstance and political influence) be considered engaging in belligerent acts to support enemy forces. This is highly improbable but not implausible.

I agree with your last paragraph about the NDAA leaving a large loophole and potential for abuses. But truthfully, having several family members who have and are serving in the military, I am more afraid of my State, County, and Municipal police abusing their powers than the military abusing theirs.

Lastly, JSC is absolutely correct. The Obama Administration openly supports the assassination of American citizens without due process, i.e.; Anwar al-Awlaki. How this has gone unchallenged is beyond me! If people want to occupy anything, it should be the White House for allowing this to happen!

Obama is using executive fiat and economics to turn America away from Republicanism and towards Social Fascism. In order to perpetuate the New World Order and implement a One World Financial system or government, any soveriegn nation that demonstrates an independence from the rest of the world must be torn down and reduced to the lowest common denominator in order to "redistribute the wealth" and "make everyone have skin in the game" and ensure "economic fairness". Sorry if I sound like a conspiracy nut, but...the truth is being hidden in plain sight.

 

[Reynod]

Fair enough .. "straw dogs" are basically domestic terrorists.