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I have read it, and I submit the relevant text from section 1021 below. Namely, the NDAA affirms the "authority of the Armed Forces of the United States to det

by willurd 14y ago

I have read it, and I submit the relevant text from section 1021 below. Namely, the NDAA affirms the "authority of the Armed Forces of the United States to detain covered persons pursuant to the Authorization for Use of Military Force". A "covered person" is someone who has "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks" or 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." But no trial needs to be held in order to make the aforementioned conclusions: "Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force." So, our government can detain anybody it (who's that exactly?) deems is a "terrorist", without trial, until the end of "hostilities" (let me make a prediction: the "war on terror" isn't ending any time soon, hence "indefinite"). So, no, I am not making and will not make any comparisons between the United States and China. I am, however, backing up guelo's point that the US can legally "detain people without charges for years at a time", and very few people seem to care. SECTION 1021 Sec. 1021. 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; 50 U.S.C. 1541 note) 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.

tptacek 14y ago
The problem isn't the NDAA. It's Public Law 107-40, the original 2001 Al Qaeda AUMF. Here's the problematic language: (a) IN GENERAL.—That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism again the United States by such nations, organizations or persons Compare to the 1991 AUMF for the first Gulf War: (a) AUTHORIZATION- The President is authorized, subject to subsection (b), to use United States Armed Forces pursuant to United Nations Security Council Resolution 678 (1990) in order to achieve implementation of Security Council Resolutions 660, 661, 662, 664, 665, 666, 667, 669, 670, 674, and 677. (b) REQUIREMENT FOR DETERMINATION THAT USE OF MILITARY FORCE IS NECESSARY- Before exercising the authority granted in subsection (a), the President shall make available to the Speaker of the House of Representatives and the President pro tempore of the Senate his determination-- (1) that the United States has used all appropriate diplomatic and other peaceful means to obtain compliance by Iraq with the United Nations Security Council resolutions cited in subsection (a); and (2) that those efforts have not been and would not be successful in obtaining such compliance. Notice that the 2001 AUMF, which was written in a panic, authorizes arbitrary force with no mitigating effort required not only against nations but against "organizations" and "persons", and continues to authorize those efforts so long as they might prevent future acts of terrorism. It is hard to get much worse than that. The NDAA doesn't make it worse; in fact, by putting pen to paper and outlining specific circumstances in which the US can use its military to detain people, it ostensibly makes it better (it is hard to imagine making the 2001 or 2003 AUMF better without repealing it and starting over, though). The Alex Jones take on the NDAA would be that it's a huge executive overreach and a sign that the current administration favors an overt authorization of Latin American-style "disappearings" of suspected terrorists. Apart from the 2001-2003 context those febrile rants exclude, there is also the fact that the House and Senate GOP wanted the 2012 NDAA to expand the powers available to the executive to combat terrorism. It is also possible to be disquieted by detention and due process provisions in a war powers act while simultaneously understanding the context in which a reasonable person could assert them. For example, without some provision for detaining US citizens abroad, how would you lawfully handle any armed conflict with the Taliban? There are more than 300MM Americans. Some of them will win the lottery, and others will in fact fly to Pakistan to train with militants, as has already happened repeatedly. US military forces will eventually encounter them in armed conflict. In every war, there is always going to some due process concern regarding the handling of possible US citizens taking up arms to fight alongside our opponents. The Al Qaeda AUMF is ridiculously overbroad and needs to be fixed. But the NDAA, a utility bill that happens every year to fund the military, is not a re-ratification of that act, nor does it create a civil liberties regime in the US comparable to that of China.

by willurd 14y ago

tptacek 14y ago

The problem isn't the NDAA. It's Public Law 107-40, the original 2001 Al Qaeda AUMF. Here's the problematic language: (a) IN GENERAL.—That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism again the United States by such nations, organizations or persons Compare to the 1991 AUMF for the first Gulf War: (a) AUTHORIZATION- The President is authorized, subject to subsection (b), to use United States Armed Forces pursuant to United Nations Security Council Resolution 678 (1990) in order to achieve implementation of Security Council Resolutions 660, 661, 662, 664, 665, 666, 667, 669, 670, 674, and 677. (b) REQUIREMENT FOR DETERMINATION THAT USE OF MILITARY FORCE IS NECESSARY- Before exercising the authority granted in subsection (a), the President shall make available to the Speaker of the House of Representatives and the President pro tempore of the Senate his determination-- (1) that the United States has used all appropriate diplomatic and other peaceful means to obtain compliance by Iraq with the United Nations Security Council resolutions cited in subsection (a); and (2) that those efforts have not been and would not be successful in obtaining such compliance. Notice that the 2001 AUMF, which was written in a panic, authorizes arbitrary force with no mitigating effort required not only against nations but against "organizations" and "persons", and continues to authorize those efforts so long as they might prevent future acts of terrorism. It is hard to get much worse than that. The NDAA doesn't make it worse; in fact, by putting pen to paper and outlining specific circumstances in which the US can use its military to detain people, it ostensibly makes it better (it is hard to imagine making the 2001 or 2003 AUMF better without repealing it and starting over, though). The Alex Jones take on the NDAA would be that it's a huge executive overreach and a sign that the current administration favors an overt authorization of Latin American-style "disappearings" of suspected terrorists. Apart from the 2001-2003 context those febrile rants exclude, there is also the fact that the House and Senate GOP wanted the 2012 NDAA to expand the powers available to the executive to combat terrorism. It is also possible to be disquieted by detention and due process provisions in a war powers act while simultaneously understanding the context in which a reasonable person could assert them. For example, without some provision for detaining US citizens abroad, how would you lawfully handle any armed conflict with the Taliban? There are more than 300MM Americans. Some of them will win the lottery, and others will in fact fly to Pakistan to train with militants, as has already happened repeatedly. US military forces will eventually encounter them in armed conflict. In every war, there is always going to some due process concern regarding the handling of possible US citizens taking up arms to fight alongside our opponents. The Al Qaeda AUMF is ridiculously overbroad and needs to be fixed. But the NDAA, a utility bill that happens every year to fund the military, is not a re-ratification of that act, nor does it create a civil liberties regime in the US comparable to that of China.