Saturday, December 3, 2011

Arrest Without Trial In The US

That I had to find the text of this horrifying new law, just approved by the House of Representatives in the Asian Times should be the first red flag. That this horror is headed for the law books should be the second red flag. There are no constitutional grounds for the military to arrest civilians and the idea that, like the unfortunates in Guantanamo, US citizens could be held without charges should have everyone seriously questioning what our leaders are doing. Instead? Nothing.


Under Sections 1031and 1032 of the National Defense Authorization Act for the Fiscal Year 2012, the United States Congress has proposed to give the Department of Defense the explicit power to take civilians into military custody, detain them indefinitely with no charges or trial.

Well hidden in the 682-page long National Defense Authorization Act (NDAA), the Bill under the title ‘Detainee Matters’ has received tragically sparse coverage in the American national media, widely-read national newspapers and broadly-watched national television channels blocking the existence of this impending legislation described by rights organizations such as the American Civil Liberties Union (ACLU) as a draconian piece of law.

The ACLU in a letter to the US Senate Judiciary Committee Chairman Patrick Leahy and Ranking Member Charles Grassley opposing the provisions of the bill said it “affects civilians who are otherwise outside of military control, including civilians within the United States itself.”

This endeavor of the Congress is to continue the anti-terrorism battle to safeguard the nation from terrorist attacks within and outside.

If these provisions are enacted, it would give the federal government the explicit power to imprison civilians, including American citizens, indefinitely with no charges or trial.

This includes civilians arrested within the United States who would otherwise be outside of military control while also transferring all responsibilities to the Department of Defense.

Instead of the Department of Justice’s Criminal Division, National Security Division, or the United States Attorneys, the Federal Bureau of Investigation, the Bureau of Prisons, the Marshals Service and/or the state attorneys general handling the prosecutorial, investigative, law enforcement, penal and custodial authority, the Department of Defense would handle it all, according to the ACLU memorandum to the Congress.

The ACLU points out that while Subsection 1031(c) of the US-Senate proposed Bill claims that it does not apply to lawful residents of the United States or citizens “on the basis of conduct taking place within the United States except to the extent permitted by the Constitution,” glaring loopholes remain.

If the government’s track record is any indicator, we can expect these loopholes to be exploited at every possible opportunity.

Just as the federal government has used the PATRIOT Act’s so-called “Sneak-and-Peek,” or delayed notice, warrants for over 1,600 drug cases and only 15 cases of terrorism in 2006-2009 , we can expect the government to use the bill - S. 1867 - for detaining people for completely illegitimate reasons, argues the rights organization.

These loopholes allow suspects to be imprisoned without charge or trial, especially citizens or lawful residents who are suspected of some sort of wrongdoing outside of the United States.

The most unsettling aspect is that the deciding factor in determining if an individual can be detained indefinitely is not any proof of guilt, but instead entirely by officials in the Executive Branch, which, according to the ACLU would be “following some future agency regulations.”

The bill gives authority to the President and future Presidents of the United States to execute Sections 1031 and 1032 of the National Defense Authorization Act in placing individuals under the military for indefinite detention without charges or trial.

Section 1032 puts civilians who would otherwise not be subject to military control into military detention, thus removing the protections of the Posse Comitatus act.

Like Section 1031, this would include indefinite imprisonment of civilians apprehended inside of the United States, Section 1032 does not authorize the military to detain civilians without charge or trial, it in fact it mandates it.

The protection against the government using the military for law enforcement activities within the United States under Posse Comitatus would be eliminated under Section 1032 and the ACLU points out that, “all state and federal law enforcement would be preempted by the military.”

Previously the state and local law enforcement agencies and the Department of Justice had the primary responsibility to enforce anti-terrorism laws within the United States.

The NDAA would, in the case of many civilian suspects, remove federal state and local law enforcement from the process of investigation, arrest, criminal prosecution and imprisonment and hand said powers over to the military.

If enacted, sections 1031 and 1032 of the NDAA would:

* (1) Explicitly authorize the federal government to indefinitely imprison without charge or trial civilians apprehended both inside and outside the United States

* (2) Mandate military detention of some civilians who would otherwise be outside of military control, including suspects apprehended within the United States itself

* (3) Transfer to the Department of Defense core prosecutorial, investigative, law enforcement, penal, and custodial authority and responsibility now held by the Department of Justice.

The American Civil Liberties Union gives the consequences of the law:

“Although Subsection 1031(c) of the NDAA states that it does not apply to American citizens or lawful residents “on the basis of conduct taking place within the United States except to the extent permitted by the Constitution,” important loopholes remain for citizens who are mere suspects to be imprisoned without charge or trial. In particular, American citizens and lawful residents suspected of wrongdoing outside the United States could be indefinitely imprisoned, even if apprehended within the United States itself. The “determination” that someone can be indefinitely imprisoned would not require proof of guilt, but instead would be decided entirely by Executive Branch officials following some future agency regulations.

“These American citizens and other civilians picked up in the United States, but never charged or tried, could be imprisoned “until the end of hostilities” authorized by the 2001 Authorization for Use of Military Force. These American citizens could be imprisoned along with non-citizen civilians who had no role in the 9/11 attacks or any actual hostilities, and who would not be detainable under the laws of war.”

Asian Tribune gives here the full text of Sections 1031 and 1032 of the Senate Bill S. 1867 which is in the 682-page Defense Authorization Act for the Fiscal Year 2012.

112TH CONGRESS

1ST SESSION S. 1867

To authorize appropriations for fiscal year 2012 for military activities of the Department of Defense, for military construction, and for defense activities of the Department of Energy, to prescribe military personnel strengths for such fiscal year, and for other purposes.

IN THE SENATE OF THE UNITED STATES

NOVEMBER 15, 2011

Mr. LEVIN, from the Committee on Armed Services, reported the following original bill; which was read twice and placed on the calendar.

A BILL

To authorize appropriations for fiscal year 2012 for military activities of the Department of Defense, for military construction, and for defense activities of the Department of Energy, to prescribe military personnel strengths for such fiscal year, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘National Defense Authorization Act for Fiscal Year 2012’’.

Subtitle D—Detainee Matters

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.<.B>

(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 co ordination 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 sub section (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.

(End of Text of Bill)

2 comments:

Anonymous said...

This is the first step in losing all of our civil rights !

Conchscooter said...

No kidding - and no one knows anything about it.