NDAA and the reply from Fred Upton

[Ethan Pulka]

In response to the Letter sent to the Twin Cites Tea Party from Fred Upton about NDAA (National Defense Authorization Act): Please take note of this....

 

Myth # 1: This bill does not codify indefinite detention (As Upton Pointed out)

 

Section 1021 of the NDAA governs, as its title says, “Authority of the Armed Forces to Detain Covered Persons Pursuant to the AUMF.”  The first provision — section (a) — explicitly “affirms that the authority of the President” under the AUMF  ”includes the authority for the Armed Forces of the United States to detain covered persons.” The next section, (b), defines “covered persons” — i.e., those who can be detained by the U.S. military — as “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.” With regard to those “covered individuals,” this is the power vested in the President by the next section, (c):

 

Myth #2: The bill does not expand the scope of the War on Terror as defined by the 2001 AUMF 

 

This myth is very easily dispensed with. The scope of the war as defined by the original 2001 AUMF was, at least relative to this new bill, quite specific and narrow. Here’s the full extent of the power the original AUMF granted:

 

(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 against the United States by such nations, organizations or persons.

 

Under the clear language of the 2001 AUMF, the President’s authorization to use force was explicitly confined to those who (a) helped perpetrate the 9/11 attack or (b) harbored the perpetrators. That’s it. Now look at how much broader the NDAA is with regard to who can be targeted:

 

 

Section (1) is basically a re-statement of the 2001 AUMF. But Section (2) is a brand new addition. It allows the President to target not only those who helped perpetrate the 9/11 attacks or those who harbored them, but also: anyone who “substantially supports” such groups and/or “associated forces.” Those are extremely vague terms subject to wild and obvious levels of abuse (see what Law Professor Jonathan Hafetz told me in an interview last week about the dangers of those terms). This is a substantial statutory escalation of the War on Terror and the President’s powers under it, and it occurs more than ten years after 9/11, with Osama bin Laden dead, and with the U.S. Government boasting that virtually all Al Qaeda leaders have been eliminated and the original organization (the one accused of perpetrating 9/11 attack) rendered inoperable

 

Myth #3: U.S. citizens are exempted from this new bill

 

This is simply false, at least when expressed so definitively and without caveats. The bill is purposely muddled on this issue which is what is enabling the falsehood.

 

There are two separate indefinite military detention provisions in this bill. The first, Section 1021, authorizes indefinite detention for the broad definition of “covered persons” discussed above in the prior point. And that section does provide that “Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” So that section contains a disclaimer regarding an intention to expand detention powers for U.S. citizens, but does so only for the powers vested by that specific section. More important, the exclusion appears to extend only to U.S. citizens “captured or arrested in the United States” — meaning that the powers of indefinite detention vested by that section apply to U.S. citizens captured anywhere abroad (there is some grammatical vagueness on this point, but at the very least, there is a viable argument that the detention power in this section applies to U.S. citizens captured abroad).

 

But the next section, Section 1022, is a different story. That section specifically deals with a smaller category of people than the broad group covered by 1021: namely, anyone whom the President determines is “a member of, or part of, al-Qaeda or an associated force” and “participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.” For those persons, section (a) not only authorizes, but requires (absent a Presidential waiver), that they be held “in military custody pending disposition under the law of war.” The section title is “Military Custody for Foreign Al Qaeda Terrorists,” but the definition of who it covers does not exclude U.S. citizens or include any requirement of foreignness.

 

That section — 1022 — does not contain the broad disclaimer regarding U.S. citizens that 1021 contains. Instead, it simply says that the requirement of military detention does not apply to U.S. citizens, but it does not exclude U.S. citizens from the authority, the option, to hold them in military custody. Here is what it says:

 

 

The only provision from which U.S. citizens are exempted here is the “requirement” of military detention. For foreign nationals accused of being members of Al Qaeda, military detention is mandatory; for U.S. citizens, it is optional. This section does not exempt U.S citizens from the presidential power of military detention: only from the requirement of military detention.

 

Even if it were true that this bill changes nothing when compared to how the Executive Branch has been interpreting and exercising the powers of the old AUMF, there are serious dangers and harms from having Congress — with bipartisan sponsors, a Democratic Senate and a GOP House — put its institutional, statutory weight behind powers previously claimed and seized by the President alone. That codification entrenches these powers. As the New York Times Editorial today put it: the bill contains “terrible new measures that will make indefinite detention and military trials a permanent part of American law.”

[Janet Blazen]

My question is this :  Why is this or any other bill so questionable and so sketchy that NO ONE can agree on what it says and means ?

It reminds me of a court case.   One proffesional says one thing and the other proffesional says another.  Then it's left in a jury's hands to decide.............After they are TOTALLY confused they just give a verdict so that they can go home...........Later, many times, they find out what "really" happened and again it's to late !!!!

I am still wondering what this bill means and until they put it in language that the VOTERS can understand I will continue to be in doubt so "tar and feather me !"

[Ethan Pulka]

There is not a need to tar and feather you Janet. Part of a Representative's job according to the constitution is; to represent the constituents they represent. I feel when they do word things like the NDAA bill does it is to put a blindfold over our eyes so they can say what we want to hear. 

The bill does give funding to the troops and does increase our security in America. I am not ever going to argue anything against that as long as it is done Constitutionally. I have no respect for Al-Quidea or any terrorist group. What if the Tea Party is determined a Terrorist group, where do we go without representation. I am hoping my thread clears up the confusion of what the bill can entail.  

[Janet Blazen]

Hey Ethan, I'm with ya !!

[William L Beck]

Ethan,

Thoughtful post - and an excellent attempt to clarify a very (purposeful) convoluted piece of legislation; although that is sometimes necessary in complex situations, there should be a plain English version published so that everyone can understand what is being legislated and so that nobody (Reps/Senators/President) can hide behind a wall of vague innuendos.

We need more of this kind of thoughtful discourse and less of the hyperventilation that seems to be the norm.

I hope you'll attend the next meeting of the VanKal TPP on February 2nd.  We can certainly use your style in our deliberations.  Watch for the meeting announcement later today.

Best wishes,

Bill Beck, President, VanKal TPP

[Ray Kirkus]

The national lawyers guild along with numerous attorneys and even Harvard law grad Willard Romney seem to think it is what most of us say it is..