The NDAA: Indefinite Detention Analyzed

[mikeforliberty]

I've read dozens of articles and seen several videos segments about the new NDAA and its problems. Here is my personal analysis of the bill. I hope it helps break down the legalese into something we can all understand.

Here is the offending passage of the NDAA section 1034:

SEC. 1034. AFFIRMATION OF ARMED CONFLICT WITH
AL-QAEDA, THE TALIBAN, AND ASSOCIATED FORCES.
Congress affirms that—

the United States is engaged in an armed
conflict with al-Qaeda, the Taliban, and associated
forces and that those entities continue to pose a threat
to the United States and its citizens, both domestically and abroad;

the President has the authority to use all necessary
and appropriate force during the current
armed conflict with al-Qaeda, the Taliban, and asso4
ciated forces pursuant to the Authorization for Use of
Military Force the current armed conflict includes nations,
organization, and persons who—
are part of, or are substantially supporting, al-Qaeda,
the Taliban, or associated forces that are engaged in
hostilities against the United States or its coalition partners; or
have engaged in hostilities or have directly supported
hostilities in aid of a nation, organization, or person
described in subparagraph (A); and the President’s authority
pursuant to the Authorization for Use of Military Force includes
the authority to detain belligerents, including persons described
in paragraph (3), until the termination of hostilities.

And here are the specific problems:

the President has the authority to use all necessary and appropriate
force...and persons who are part of, or are substantially supporting,
Al-Qaeda, the Taliban, or associated forces that are engaged in
hostilities against the United States or its coalition partners...the
President’s authority pursuant to the Authorization for Use of Military
Force includes the authority to detain belligerents, including persons
described in paragraph (3), until the termination of hostilities.

The problem is that the President gets to make the call if you are supporting terrorism (suspected) and hold you until the end of hostilities (indefinitely).

The exception to the rule in article 1031 and 1032 specifies that the military is not required to hold a US citizen. It does not mean they cannot, but if they wish they can turn them over to the civilian side of the executive branch. This can include any non-military member of the Executive, not Judicial, branch.

This is the interpretation as it is understood by the Whitehouse and the bills authors which you can see if you watch the videos below.

"It is not unfair to make an American citizen account for the fact that they decided to help Al Qaeda to kill us all and hold them as long as it takes to find intelligence about what may be coming next, if they say ‘I want my lawyer,’ you tell them, ‘Shut up. You don’t get a lawyer.'" - Senator Lindsay Graham

For a visual explanation of the bill you can listen to our Senators discuss it yourselves:
http://youtu.be/m7tavj7Jhko
http://youtu.be/DWApGqE_T-k

And for some more visual analysis:
http://www.youtube.com/watch?v=9FNjrpD-v-I
http://www.wxix.com/story/16169862/reality-check-did-the-us-senate-just-give-awa...

If you are feeling brave you can view the most recent version of the bill here:
http://armedservices.house.gov/index.cfm/h-r-1540-bill-text-and-report

My original article is here:
http://mikezentz.com/?p=405

 

[Kelly.]

good post,
thank you.

 

[mikeforliberty]

I just found out. Obama signed it yesterday. Normally we could challenge this in court but...

 

[donnay]

I tried to +rep you for this information but it is saying I gave out too much +rep today. I owe you one.

People need to wake up...we are entering Nazi Germany circa 1933. I really hope Dr. Paul mentions this tonight at the debates!!

 

[mikeforliberty]

Thanks donnay
I still can't believe almost no one knows about this. The signing hasn't been posted on Whitehouse.gov and I've had a hard time finding news articles about it. It's being downplayed and they are trying to make us focus on the "end of the Iraq war".

 

[sparebulb]

Let me throw a little more depression on the fire.

Here is a copy of an email I received from my senator, Roy Blunt, in response to my correspondence in opposition to the NDAA internment legislation. We are witnessing the rise of the modern-day nazi party in America.


Dear (sparebulb),



Thank you for contacting me regarding your thoughts on sections 1031 and 1032 of S.1253, the National Defense Authorization Act for 2012.



The most important duty of the federal government is to protect our nation's security. Passing the National Defense Authorization Act (NDAA) is Congress' annual way of ensuring that our troops have what they need to complete their mission today, prepare to meet tomorrow's threats, and receive the support they need when they return home.



Section 1031 of the Defense bill ensures that non-U.S. citizens captured before, during, or after committing an act of terrorism against the United States are not simply read their Miranda rights and added to the prison population. Regardless of where they are captured, these individuals frequently possess intelligence that can prevent large-scale attacks against our nation. These foreign individuals should be tried by military commissions, which are authorized and overseen by Congress.



Section 1032 exempts U.S. citizens from automatically being tried by a military commission and grants the Executive branch flexibility to determine where to try U.S. citizens, only for these specific acts. This section represents no change to current U.S. policy, which is already subject to vigorous congressional oversight. Congressionally authorized commissions have been upheld by the U.S. Supreme Court on multiple occasions since World War II and date to our nation's founding as a legal tool for those who engage in acts of war against the country.



In order to clarify this issue, on December 1, the Senate passed an amendment 99-1 that states that nothing in the Defense Authorization bill changes existing authorities as they relate to the detention of United States citizens who are captured in the United States.



I believe that in a post-September 11th era, we must carefully balance the need to protect ourselves from large-scale attacks, while protecting the Constitution and remaining an example to all nations that seek the liberties and opportunities Americans live with every day. Serving on the Senate Select Committee on Intelligence, I am unfortunately aware that there are very real threats against Americans that originate both overseas and in our homeland. I take my responsibility to strike this balance between liberty and security very seriously, and I sincerely appreciate your legitimate concern about our citizens' freedoms and constitutional rights.



Again, thank you for contacting me. I look forward to continuing our conversation on Facebook (www.facebook.com/SenatorBlunt) and Twitter (www.twitter.com/RoyBlunt) about the important issues facing Missouri and the country. I also encourage you to visit my website (blunt.senate.gov) to learn more about where I stand on the issues and sign-up for my e-newsletter.

Sincere regards,

Roy Blunt
United States Senator

 

[osan]

I've read dozens of articles and seen several videos segments about the new NDAA and its problems. Here is my personal analysis of the bill. I hope it helps break down the legalese into something we can all understand.

Here is the offending passage of the NDAA section 1034:

SEC. 1034. AFFIRMATION OF ARMED CONFLICT WITH
AL-QAEDA, THE TALIBAN, AND ASSOCIATED FORCES.
Congress affirms that—

the United States is engaged in an armed
conflict with al-Qaeda, the Taliban, and associated
forces and that those entities continue to pose a threat
to the United States and its citizens, both domestically and abroad;

the President has the authority to use all necessary
and appropriate force during the current
armed conflict with al-Qaeda, the Taliban, and asso4
ciated forces pursuant to the Authorization for Use of
Military Force the current armed conflict includes nations,
organization, and persons who—
are part of, or are substantially supporting, al-Qaeda,
the Taliban, or associated forces that are engaged in
hostilities against the United States or its coalition partners; or
have engaged in hostilities or have directly supported
hostilities in aid of a nation, organization, or person
described in subparagraph (A); and the President’s authority
pursuant to the Authorization for Use of Military Force includes
the authority to detain belligerents, including persons described
in paragraph (3), until the termination of hostilities.

And here are the specific problems:

the President has the authority to use all necessary and appropriate
force...and persons who are part of, or are substantially supporting,
Al-Qaeda, the Taliban, or associated forces that are engaged in
hostilities against the United States or its coalition partners...the
President’s authority pursuant to the Authorization for Use of Military
Force includes the authority to detain belligerents, including persons
described in paragraph (3), until the termination of hostilities.

The problem is that the President gets to make the call if you are supporting terrorism (suspected) and hold you until the end of hostilities (indefinitely).

The exception to the rule in article 1031 and 1032 specifies that the military is not required to hold a US citizen. It does not mean they cannot, but if they wish they can turn them over to the civilian side of the executive branch. This can include any non-military member of the Executive, not Judicial, branch.

This is the interpretation as it is understood by the Whitehouse and the bills authors which you can see if you watch the videos below.

"It is not unfair to make an American citizen account for the fact that they decided to help Al Qaeda to kill us all and hold them as long as it takes to find intelligence about what may be coming next, if they say ‘I want my lawyer,’ you tell them, ‘Shut up. You don’t get a lawyer.'" - Senator Lindsay Graham

For a visual explanation of the bill you can listen to our Senators discuss it yourselves:
http://youtu.be/m7tavj7Jhko
http://youtu.be/DWApGqE_T-k

And for some more visual analysis:
http://www.youtube.com/watch?v=9FNjrpD-v-I
http://www.wxix.com/story/16169862/reality-check-did-the-us-senate-just-give-awa...

If you are feeling brave you can view the most recent version of the bill here:
http://armedservices.house.gov/index.cfm/h-r-1540-bill-text-and-report

My original article is here:
http://mikezentz.com/?p=405

I am confused. I have the latest text of the bill in front of me and Sec. 1034 says nothing even remotely similar to your cite, above. To wit:

SEC. 1034. PROHIBITION ON USE OF FUNDS TO CONSTRUCT​

2 OR MODIFY FACILITIES IN THE UNITED​

3 STATES TO HOUSE DETAINEES TRANS4​

FERRED FROM UNITED STATES NAVAL STA5​

TION, GUANTANAMO BAY, CUBA.​

6 (a) IN GENERAL.—No amounts authorized to be ap7​

propriated or otherwise made available to the Department​

8 of Defense for fiscal year 2012 may be used to construct​

9 or modify any facility in the United States, its territories,​

10 or possessions to house any individual detained at Guanta11​

namo for the purposes of detention or imprisonment in​

12 the custody or under the control of the Department of De13​

fense unless authorized by Congress.​

14 (b) EXCEPTION.—The prohibition in subsection (a)​

15 shall not apply to any modification of facilities at United​

16 States Naval Station, Guantanamo Bay, Cuba.​

17 (c) INDIVIDUAL DETAINED AT GUANTANAMO DE18​

FINED.—In this section, the term ‘‘individual detained at​

19 Guantanamo’’ has the meaning given that term in section​

20 1033(e)(2).​

21 (d) REPEAL OF SUPERSEDED AUTHORITY.—Section​

22 1034 of the Ike Skelton National Defense Authorization​

23 Act for Fiscal Year 2011 (Public Law 111–383; 124 Stat.​

24 4353) is amended by striking subsections (a), (b), and (c).


​

As you can see, the text is not even remotely similar. Section 1032 has vaguely similar language, but it is not the same as what you quote. What is going on?
​

 

[pcosmar]

Al-Qaeda?
Aren't they a branch of the CIA?

That would make anyone supporting or aiding the US GOV guilty.

 

[xFiFtyOnE]

Well I just got two letters in the mail from Senators Sessions & Shelby of Alabama regarding my mail to them about the NDAA. Basically got told not to worry about it and they didn't care what I thought. Just a bunch of rambling about how it was needed to stop al-Qaeda and the Taliban and it provides better benefits to military members... F**k both of them. I will try to get everyone I know to vote them out of office from now on.

 

[mosquitobite]

I am confused. I have the latest text of the bill in front of me and Sec. 1034 says nothing even remotely similar to your cite, above. To wit:

SEC. 1034. PROHIBITION ON USE OF FUNDS TO CONSTRUCT​

2 OR MODIFY FACILITIES IN THE UNITED​

3 STATES TO HOUSE DETAINEES TRANS4​

FERRED FROM UNITED STATES NAVAL STA5​

TION, GUANTANAMO BAY, CUBA.​

6 (a) IN GENERAL.—No amounts authorized to be ap7​

propriated or otherwise made available to the Department​

8 of Defense for fiscal year 2012 may be used to construct​

9 or modify any facility in the United States, its territories,​

10 or possessions to house any individual detained at Guanta11​

namo for the purposes of detention or imprisonment in​

12 the custody or under the control of the Department of De13​

fense unless authorized by Congress.​

14 (b) EXCEPTION.—The prohibition in subsection (a)​

15 shall not apply to any modification of facilities at United​

16 States Naval Station, Guantanamo Bay, Cuba.​

17 (c) INDIVIDUAL DETAINED AT GUANTANAMO DE18​

FINED.—In this section, the term ‘‘individual detained at​

19 Guantanamo’’ has the meaning given that term in section​

20 1033(e)(2).​

21 (d) REPEAL OF SUPERSEDED AUTHORITY.—Section​

22 1034 of the Ike Skelton National Defense Authorization​

23 Act for Fiscal Year 2011 (Public Law 111–383; 124 Stat.​

24 4353) is amended by striking subsections (a), (b), and (c).


​

As you can see, the text is not even remotely similar. Section 1032 has vaguely similar language, but it is not the same as what you quote. What is going on?
​

I've had people confused on the same thing. Can someone clarify?

 

[GuerrillaXXI]

This is all such bullcrap. The Taliban and other such groups do NOT pose any significant threat to Americans on US soil. The greatest threat by far to the safety of Americans is other Americans, meaning common criminals and sadistic cops.

I know it's preaching to the choir, but how can so many Americans be so fucking stupid and blind to what's happening? This power grab by the established political class could not possibly be more blatant.

 

[icon124]

Also what is an "Associated Force"?

We need a definition of that as well.

 

[BlackBlockRising]

Statement adopted by Bill of Rights Day People’s Assembly at the West Los Angeles Federal Building:

We the People, assembled in protest and exercising our First Amendment rights of Free Assembly and Free Speech, condemn the passage of the National Defense Authorization Act. The timing of its passage on the 220th anniversary of the adoption of the Bill of Rights and its signing into law on the anniversary of the Boston Tea Party is tantamount to a declaration of war against the very principles of Freedom and Rule of Law.
The law contains provisions that mandate that the military hold any person anywhere accused of being a terrorist or aiding terrorists, including Americans on American soil, in indefinite detention until the end of the Global War on Terror and the end of hostilities. Since under the new law the determination that an individual is a terrorist suspect is entirely arbitrary and without recourse to juridical appeal, by definition it therefore attempts to obliterate the fundamental Constitutional protections of Habeas Corpus and Due Process. NDAA institutes a regime in which the Rule of Law is replaced by the arbitrary Rule of Men. In the absence of Rules, by definition, we are left only with Rulers. The Corporatist regime has indicated its willingness to use the usurped power of the State against We the People in order to perpetuate its rule of theft, plunder, crime, ruin and war.
Our Constitutional Rights are inalienable. We do not recognize the legitimacy of the Indefinite Detention provisions of this Act. Having declared itself outside the Constitution and the Rule of Law, the Corporatist regime is itself illegitimate and any and all actions taken by it going forward are inherently null and void.
All levels and divisions of the Corporatist Elite have participated in this crime. In particular, we condemn the total information blackout perpetrated by the mainstream, big news media that saw fit to deny the American people a broad debate over this Act and its implications.
In addition, the bill provides for severe sanctions against the petroleum industry and financial system of Iran, which we can only surmise are precursors to war. We regard the Indefinite Detention provisions of NDAA as a preparation for the strong opposition that will inevitably arise from the American people to such a war.
We the People will not be cowed into submission. We will stand tall and strong for the repeal of this heinous Act, the total reversal of all police state measures, the revocation of the Rule of Men and the restoration of the Rule of Law. Congress, the President and all military and government officials connected with the drafting and passage of this Act, having blatantly violated their oaths of office to "preserve, protect and defend the Constitution", should resign immediately. We the People will work tirelessly to find and exercise all peaceful, legal means and measures to redress this grievance and hold those responsible to account.
We the People of Los Angeles Assembled at the West Los Angeles Federal Building December 15, 2011

 

[mikeforliberty]

I've had people confused on the same thing. Can someone clarify?

Sure can! The bill has gone back and forth between the House and Senate several times. At the time of my article this was the most recent text of the bill passed in a final vote from the House. It's available here: http://armedservices.house.gov/index.cfm/h-r-1540-bill-text-and-report