Friday, December 30, 2011
"Perhaps the only thing more worrisome than the recently passed NDAA provisions for the indefinite military detention of American citizens is the extent and sophistication of the efforts to distort their true meaning in order to lead people to believe that American citizens are excluded."
By Ralph Lopez
Perhaps the only thing more worrisome than the recently passed NDAA provisions for the indefinite military detention of American citizens is the extent and sophistication of the efforts to distort their true meaning in order to lead people to believe that American citizens are excluded. Rep. Justin Amash took a rare bare-knuckled swipe in this most collegial of institutions to say that the NDAA was "carefully crafted to mislead the public."
That's the equivalent of calling some pretty powerful people whom you work with liars, on whose good graces passing your legislation may depend. It's not done in this place unless it is something you feel very strongly about.
The deceptions in the language of the NDAA, intended to allow defenders to argue that the provisions do not apply to American citizens, center around Sections 1021 and 1022. Section 1021 says in substance:
"Congress affirms that the authority of the President to use all necessary and appropriate force ...to detain...A person who was a part of or substantially supported al-Qaeda...or associated forces...including any person who has...directly supported such hostilities in aid of such enemy forces...The disposition of a person...may include...Detention under the law of war...without trial until the end of the hostilities..."
This is how a court must read it when the words are parred down to their true meaning, without inoperative subordinate clauses. You can see the full text below. This is taken straight from the final House-Senate Conference Committee report (HR 1540 Conference), which is the language that was passed by the Senate after being passed by the House, on Dec. 15, Bill of Rights Day in an 86 - 14 vote of the Senate which sent it to the president's desk.
20 SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED
21 FORCES OF THE UNITED STATES TO DETAIN
22 COVERED PERSONS PURSUANT TO THE AU-
23 THORIZATION FOR USE OF MILITARY FORCE.
24 (a) IN GENERAL.--Congress affirms that the author-
25 ity of the President to use all necessary and appropriate
1 force pursuant to the Authorization for Use of Military
2 Force (Public Law 107--40; 50 U.S.C. 1541 note) includes
3 the authority for the Armed Forces of the United States
4 to detain covered persons (as defined in subsection (b))
5 pending disposition under the law of war.
6 (b) COVERED PERSONS.--A covered person under
7 this section is any person as follows:
8 (1) A person who planned, authorized, com-
9 mitted, or aided the terrorist attacks that occurred
10 on September 11, 2001, or harbored those respon-
11 sible for those attacks.
12 (2) A person who was a part of or substantially
13 supported al-Qaeda, the Taliban, or associated forces
14 that are engaged in hostilities against the United
15 States or its coalition partners, including any person
16 who has committed a belligerent act or has directly
17 supported such hostilities in aid of such enemy
19 (c) DISPOSITION UNDER LAW OF WAR.--The dis-
20 position of a person under the law of war as described
21 in subsection (a) may include the following:
22 (1) Detention under the law of war without
23 trial until the end of the hostilities authorized by the
24 Authorization for Use of Military Force.
Rep. Tom McClintock opposed the bill on the House floor saying it:
specifically affirms that the President has the authority to deny due process to any American it charges with "substantially supporting al Qaeda, the Taliban or any "associated forces'" -- whatever that means.
Would "substantial support" of an "associated force," mean linking a web-site to a web-site that links to a web-site affiliated with al-Qaeda? We don't know.
"Substantial support" of an "associated force" may imply citizens engaged in innocuous, First Amendment activities. Direct support of such hostilities in aid of enemy forces may be construed as free speech opposition to U.S. government policies, aid to civilians, or acts of civil disobedience.