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December 1, 2011

The Late David Nolan’s Indefinite Detention of U.S. Citizens Fears One Step Closer to Being Realized

by Stephen Littau

Back in the 2010 mid-term election, Libertarian Party co-founder David Nolan ran as a Libertarian against Sen. John McCain for his seat in the U.S. Senate. Sadly, McCain easily won the election and Nolan died several weeks after the election and just two days before his 67th birthday.

During his debate with Sen. McCain, Nolan warned voters of what he called a “dangerous, evil, un-American” bill which McCain co-sponsored called S. 3081, the “Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010.” This bill would authorize indefinite detention of American citizens without trial. Nolan was so outraged by this bill he said that this was one reason he decided to run against Sen. McCain.

Sen. McCain brushed off Nolan’s comments saying that Nolan “may be a little bit biased.”

Fast forward just over a year later, Sen. McCain has sponsored another piece of legislation hidden in the National Defense Authorization Act for FY 2012 that is very similar. One of the more concerning aspects of the bill is Section 1031:

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).

The next section, Section 1032 adds some confusing language as to whether American citizens can truly be held indefinitely:

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.

Christopher Anders, senior legislative counsel of the ACLU points out that the language contained in Section 1032 only applies to Section 1032. To put it another way, according to Section 1031 U.S. citizens can be detained indefinitely and even sent to another country without the normal civil liberties protections guaranteed in the Fifth, Sixth, and possibly Eighth Amendments.

Sen. Mark Udall (D-CO) introduced Amendment No. 1107 to the bill that would have mitigated much of the civil liberties concerns found in 1031 but it was soundly defeated by a 61-37 vote. Only two Republicans, Mark Kirk of Illinois and Rand Paul of Kentucky voted in favor of the Udall amendment.

Now the vote for the National Defense Authorization Act for FY 2012 is set for today, December 1, 2011. There isn’t much time left to stop this horribly unconstitutional bill from being passed.

This being said, President Obama has threatened to veto the bill if these sections are still in place when it hits his desk. I’m not quite sure how the president can say on one hand he can send drones to kill American citizens while on the other say he opposes indefinite detention of American citizens but a veto would be the correct response regardless.

President Obama might well veto this bill but I have no confidence that any of the Republican challengers would veto similar legislation in the future save Gary Johnson (who is sadly very much a long shot at this point), Ron Paul, or perhaps Jon Huntsman.

We can now see that David Nolan’s concerns he expressed in the 2010 debate were well founded after all.

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6 Comments

  1. He’s not going to veto it. Obama’s beef is that this bill ties his hands!

    I guess he wants a free hand throughout the world.

    Comment by tarran — December 1, 2011 @ 7:19 am
  2. I was pleased and surprised to see the Obama threatened veto as well. But apparently, his issue is not with giving the President indefinite detention power per se, but that the law ties his hands and requires certain action in certain situations. Apparently he has no ethical problem with the bill, and I am sure he appreciates the new power — he just wants the President to have the freedom to pick and choose who gets due process and who does not.

    Comment by coyote — December 1, 2011 @ 8:47 am
  3. I think Obama will ultimately do whatever he wants regardless of whether he vetos it or not. Maybe it will be in the signing statement or maybe his attorneys will say he has authority to act even if the law says otherwise. Obama violated the War Powers Act without much of a challenge, there’s no reason for me to believe this will be any different.

    Does anyone seriously believe that U.S. citizens are not or at least have not been held without due process under Obama? (certainly there was Jose Padilla under Bush) Army Pfc Bradley Manning was held 569 days before getting his first pre-trial hearing (something else just occurred to me: this was 125 days longer than the Iran hostage crisis!). However one feels about Manning, he is an American and he deserves to have his day in court.

    Comment by Stephen Littau — December 1, 2011 @ 11:53 am
  4. Amongst many other lawmakers, John McCain is a literal traitor and enemy combatant of the United States. And he deserves a military tribunal and its consequences.

    Comment by procopius — December 1, 2011 @ 3:35 pm
  5. [...] procopius: Amongst many other lawmakers, John McCain is a literal traitor and enemy combatant of the United States…. [...]

    Pingback by The Liberty Papers »Blog Archive » National Defense Authorization Act Passes Complete With Indefinite Detention Provisions — December 1, 2011 @ 9:45 pm
  6. On September 11, 2001, 19 criminals from a group calling themselves al-Qaeda committed mass murder in an act of terrorism. They succeeded. Many Americans became terrified.

    On September 18th, Congress attempted to respond to this crime by – almost – declaring war. Being typically gutless, having no nation-state upon which to focus, and not wanting to invoke certain limits to their power if they used the term “war”, they did not declare it. Instead, they chose an “Authorization for the Use of Military Force” which initiated an open-ended “war” on a tactic. Since the tactic cannot surrender, or be proven to be defeated, the “war” is endless.

    Now, with the help of Mr. Levin and Mr. McCain, America takes one more step into Martial Law.

    Amendment 4: “…no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

    Amendment 5: “No person shall be…deprived of life, liberty, or property, without due process of law;”

    Amendment 6: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed”

    Amendment 8: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

    Mr. Levin and Mr. McCain: “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.”

    Judge for yourself.

    Comment by Richard Stands — December 1, 2011 @ 10:26 pm

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