Turbo Man Dolls and Chirstmas

Disclaimer: This post (as well as the blog in general) in particular is of my opinion only and nobody else's including my employers.

The retail industry is the only industry that I've known and worked for in my 22 years of existence.  Sure, I've shadowed and seen other industries, but never the first hand experience.  Those that know me, I've experienced the "big box" retail operations versus smaller retailers and there are differences in terms of customer service focus, scope, and communication.  At the end of the day though, we're just serving customers.

By working in this industry, it seems like watching "Jingle All the Way" with Arnold Schwarzenegger and Sinbad as the main character fighting for the "must have" toy of the Christmas season, the Turbo Man doll.  It's much like the Tickle Me Elmo's and other popular toys that have been listed as "must haves" each year.  Although this year, the commercialism has taken, in my opinion, turns for the worst.  It's really playing to the selfish side of people.  Every time I walk into McDonald's I see "Enjoy Season's Craving" with a McFlurry.  You really can't forget the Rebecca Black commercial for Kohl's for Black Friday or the rounds of news reports of violence for that weekend; however, I want to address what every retail worker sees every Christmas season: the stupid, the idiot, and the grumpy customers.  I know for the most part, I never lash out at strangers, but inside my head, this is what is happening.

The Stupid -

Many retail workers will understand my rant against customers whom act stupid.  Most of us has at some point before working in retail acted as stupid is a store, but when working, we see a lot of stupid acts.  I think the biggest peeve in this department is parents acting stupid and not controlling children to wreck havoc in say the toy section.  We appreciate to instill self-discipline in your children or leave them with a babysitter instead of having them run around, crying uncontrollably or wrecking merchandise.

Unfortunately this isn't the only thing.  Being stupid includes having "large gatherings" (looking at you Asians out there) and blocking the way while obvious things like say a cart or pallet jack is trying to pass by.  When we ask you move, please move.  Don't act like we've invaded your personal space or stare at us thinking, "Oh my gosh, people working... who knew! Let's watch."  Don't be stupid about this, moving ensures everyone's safety.  Most of the time, we ask nicely until the requests isn't fulfilled immediately.

The next one goes to bargain-hunters.  I know I've seen this too much, although some days are worse than others. "Is this item an additional off?" or "Sale?"  All well-meaning questions but only in stores that don't really mark their sales well, like in big-box stores and some outlet stores.  I know you want cheap stuff, but it's made cheap.  A lot of the times, you get what you paid for, and that holds true for many things today.  Like I say to customers, "Sometimes, to get what you truly need, you need to pay up for quality over price.  Many good things simply do not come cheap and have quality at the same time."

The Idiots -

Idiot customers are sorta like stupid ones, but bargain-hunters can also be categorized here as well.  However, most of them are of the stubborn sort or "I am king, treat me as such when in store", both need to be brought back to earth. 

They are first off, mighty persistent about things such as, "Do you have thing item in such and such size, I know you have them last week."   Yeah, last week before it all sold out chum.  I do not control the universe or our purchasing of clothing, so stop be a douche.  Or the people that consider themselves "experts" and want help, you asked, but say, "Oh this brand sucks, and this one is better."  At the end of the day, you are buying a name... A NAME.  There is nothing special about a name, that is the last thing to think of.  Most places utilize the same technology and slap a different name on it, although there are different unique technologies depending on the company.  The way I think is, "What's the price?  It is worth it?  What is comparable from another company and it's price?  What's the quality of construction? Customer reviews, good, bad?"  Name?  Why care?  I realize that name is important; however, always shop around.  When approaching them, I felt like I lost 10 minutes of maybe talking to somebody else that would listen instead of rebuke me.

Every year, it seems all of humanity (at least in the US) stoops to the lower common denominator of idiocy. "Oh hey, it's Christmas, let's act like a jerk."  Don't come to me with "Oh, I have this toy that I need for my son, it's .  I need it now.  Meanwhile, I'm dealing with six people, I say, "I'll get to you in a minute after these customers who came before you." 

"But... I NEED IT NOW!!!"

"Wait."  Then I ignore them until I've dealt with the others, hopefully they got impatient and left.

I hate to be stereotypical, but I see this particular thing from African Americans and Latinos to mutter under my breath as "uppity idiocy".  I fear when this particular thing may happen and this group acts like the own everything and sass everyone.  They demand undivided attention and snap back viciously when you don't deliver.  (I know, this is a generalization, but seen it mostly from this group of folks).  Oh I don't have that movie that's been on promotion for the last two weeks and you decide to show up, oh pity.  I've seen this happen when being asked, "So do you carry this item?"

"No."

"Well, Wal-mart does, so you guys should have it too."

"But we're not Wal-mart are we?  This is Target, we carry different things."  (Deal with it).

The Grumpy -

This one customer is a killjoy, just to exist to suck the whatever joy you may have had earlier and then it got leveled by this one customer.  This customer is a rare occurrence outside of the holiday season; however, that is rooted in frantic shopping gone bad.  These are people who simply are selfish bastards that need their demands met without remorse to whomever they are dealing with. 

I tend to deflect this sort of customer into a close box of lies, or when they are acting at full douchiness, just simply treat them the way they treated me.  Grumpy pants customer do not deserve my attention, they deserve, "Get out!" attention.  I will gladly help the idiots and the stupid well before the ones that are pissed off.  I know with grumpy men, they will grunt a lot and usually older men.  With women, it's more subtle, but I can tell.  Just because you're grumpy, doesn't mean to spread your woes on everyone else.

Be the Kind Customer -

Look, sometimes being stupid and an idiot happens, but grumpy, no excuse.  I know it's a busy time of the year and hundreds of stores at one's choosing makes people confused and look clumsy.  But grumpy people, you like the Grinch in reality.  We don't want you, nobody does.

The commercialism of Christmas is a very disturbing trend here in America, there is nothing wrong about giving presents and such, but the problem is the methods or things being done to get the presents.  I've reflected back on this subject many times in my head and I think being with family and friends is the most important part of the holidays.  We've lost that in recent years as we think of giving as a chore instead of a joy to do.

Please, people who shop, for us retail people, but kind and thoughtful while shopping.  Be above the chaos.  Have the mentality of giving because you want to give; not the thoughts of "Oh man, another Christmas is coming, gotta get a gift for Aunt Sally... again, grrr."  Giving is not a chore, it's serious business of giving something from the heart in a physical manner.  At least have the balls to be real with yourself to be a complete jerk to person you don't want to give to, don't give if your heart isn't in it.  If you have do, you're probably sucking up big time  With that note...  

Merry Christmas everyone! 

- Roger

Ex parte Quirin - The Beginning of it All and My Conclusion

Ex parte Quirin -

Ex parte Quirin - Opinion Text

This ruling dates back to 1942 during the height of World War II.  It upheld the fact that the president could order a military tribunal to try war crimes committed by war criminals/enemy combatants instead of trying them in civilian courts.  The interesting thing in this case was that one of the German saboteurs was a US citizen named Herbert Hans Haupt, who was electrocuted on August 8, 1942.

In the decision, they touch on Haupt's US citizenship with this statement:

"All except petitioner Haupt are admittedly citizens of the German Reich, with which the United States is at war. Haupt came to this country with his parents when he was five years old; it is contended that he became a citizen of the United States by virtue of the naturalization of his parents during his minority and that he has not since lost his citizenship. The Government, however, takes the position that on attaining his majority he elected to maintain German allegiance and citizenship or in any case that he has by his conduct renounced or abandoned his United States citizenship. See Perkins v. Elg, 307 U.S. 325, 334 , 59 S.Ct. 884, 889; United States ex rel. Rojak v. Marshall, D.C., 34 F.2d 219; United States ex rel. Scimeca v. Husband, 2 Cir., 6 F.2d 957, 958; 8 U.S.C. 801, 8 U.S. C.A. 801, and compare 8 U.S.C. 808, 8 U.S.C.A. 808. For reasons presently to be stated we do not find it necessary to resolve these contentions. [317 U.S. 1, 21]" 

Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and with its aid, [317 U.S. 1, 38]   guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war. Cf. Gates v. Goodloe, 101 U.S. 612, 615 , 617 S., 618. It is as an enemy belligerent that petitioner Haupt is charged with entering the United States, and unlawful belligerency is the gravamen of the offense of which he is accused. 

Petitioners, and especially petitioner Haupt, stress the pronouncement of this Court in the Milligan case, 4 Wall. page 121, that the law of war 'can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed'. Elsewhere in its opinion, 4 Wall. at pages 118, 121, 122, and 131, the Court was at pains to point out that Milligan, a citizen twenty years resident in Indiana, who had never been a resident of any of the states in rebellion, was not an enemy belligerent either entitled to the status of a prisoner of war or subject to the penalties imposed upon unlawful belligerents. We construe the Court's statement as to the inapplicability of the law of war to Milligan's case as having particular reference to the facts before it. From them the Court concluded that Milligan, not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the law of war save as-in circumstances found not there to be present and not involved here-martial law might be constitutionally established. 

So if you switch enough to one side opposing the United States, you automatically forfeit your US citizenship.  These cases are pretty simple to understand their nature and context.  However, the context of Ex parte Quirin is more about the constitutionality of presidential order of military tribunals, than on Haupt.  Yes, this is an example of a US citizen on trial without his full rights, since the USMJ is more restrictive on due process and such. So yes, we've been dealing this subject for a long, long time.

I'll touch shortly on Ex parte Milligan since it dates to the Civil War, where the Supreme Court ruled that application of military tribunals to citizens when civilian courts are still operating is unconstitutional.  It was one of the first cases right after the end of the Civil War.  The Court decided the Milligan precedent did not apply here since the ruling in the Milligan case was that Lambdin Milligan was not a enemy belligerent and not entitled to the law of war, unfortunately for Haupt, he was classified as an enemy belligerent.  In Milligan, there was a suspension of habeas corpus through the Habeas Corpus Suspension Act. The court ruled that the Act did not authorized military tribunals and through constitutional law, suspension of habeas corpus does not authorize military tribunals.  Even martial law cannot authorize tribunals either as long as civilian courts remained open and operating unimpeded

Legal precedents on this date back to the Mexican War where spies were put to death.

"Such was the practice of our own military authorities before the adoption of the Constitution,9 and during the Mexican and Civil Wars. 10   [317 U.S. 1, 32]   Paragraph 83 of General Order No. 100 of April 24, 1863, directed that: 'Scouts or single soldiers, if disguised in the dress of the country, or in the uniform of the army hostile to their own, employed in obtaining information, if found within or lurking about the lines of the captor, are treated as spies, and suffer death.'

Our Government, by thus defining lawful belligerents entitled to be treated as prisoners of war, has recognized that there is a class of unlawful belligerents not entitled to that privilege, including those who though combatants do not wear 'fixed and distinctive emblems'. And by Article 15 of the Articles of War Congress has made provision for their trial and punishment by military commission, according to 'the law of war'."


___________________________________

In conclusion of this interesting road through to understand NDAA section 1031 and 1032, we can see the legal difficulties reached through the years.  We still don't have a "clear" definition, and they admit so.  This is why anyone linking me to bloggers or journalists cannot sway me.  They rarely give a contextual view of the subject, and I've given you probably the most indepth context review you'll ever see on this subject outside of studying law and being a lawyer in case law.  I went to sources to understand, not opinions, everyone has one, and so do I, but I like to be impartial in my opinion as long as possible to gain a full understanding of the facts at hand.

I believe now that in a way, encroachment on liberties have happened, and we've allowed them to happen; however, the focus on NDAA is misguided on it's focus.  I type here to argue that we have subjected ourselves to encroachment through Public Law 107-40 defining the Authorization of the Use of Military Force (AUMF) or even the Patriot Act, both of which were kneejerk reactions from September 11th.

I know I've been commented on "the more you know, the more you don't".  I cannot be said of this, because this is everything about NDAA down to the precedents of precedents in case law regarding detention, the use of military tribunals and case law regarding detention of US citizens.  I have broken down the case laws and the NDAA Sec. 1031 and 1032 with undeniable proof of original text and videos that cannot be twisted.  I know I've given huge walls of quotes as to give fuller contextual understanding of the cases I've read. 

There is no hidden language anywhere that I've seen so far, and the court of expert opinion lays in lawyers versed in case law and constitutional law.  I've yet to see a huge cry from this community discussing the NDAA at length, I know the ever present ACLU has though.

I state for the record that the NDAA Sec. 1031 and 1032 are vague and very arguable unconstitutional for very good reasons of gross encroachment.  I will also say that people saying that 1032 does apply to Americans is wrong plain and simple, the wording expressly says that it does not apply to US citizens.  As legal case law I've presented to you, the United States Government can under certain circumstances detain US citizens without charge, to be charged in military court, and it dates back to World War II.

There is a reason the why they are sections, they don't expressly overlap each other unless it says otherwise.  The example is in Sec. 1032(3) under DISPOSITION UNDER LAW OF WAR referring back to Sec. 1031(c).  Both sections have different COVERED PERSONS, although the one in 1032 is broader than the one in 1031.  Am I not making myself sound clear that in some way this isn't some conspiracy theory?

Even then, I already broke down Covered Persons in 1031, and you pretty much have to be Mr. Haupt to be considered a terrorist and support of enemy forces.  Sure, the "substantial support" wording is vague but I would say and probably win in the court of law that substantial support entails being knowledgeable in one's support of enemy forces.

The thing is to buy into a conspiracy, one has to twist words and meaning, and that means leaving out context.  I've fleshed it all out, everything is laid out to bear.  Case law has sided that being detained as a US citizen doesn't mean one is without legal recourse, since we do have legal precedent.

Prove me wrong here with expert opinion, because I sure as hell would welcome it.  Bloggers will not suffice unless they have credentials worthy of holding such an opinion.  Those preferably with case law background or law journalism would be the preferred and impartial.

Hamdi v. Rumfeld - Legal Precedents Continued

Hamdi v. Rumfeld -

Court Decision - Original Text

Actually, Hamdi v. Rumfeld predates the Padilla case by sheer months, you'll see tidbits of it in the Fourth Circuit ruling as you have read.  This case actually got to the Supreme Court after having being batted back and forth between District Court of Eastern Virginia and the Appeals Court for the Fourth Circuit several times.  This was an interesting excerpt from the ruling:

Despite the clear allocation of war powers to the political branches, judicial deference to executive decisions made in the name of war is not unlimited. The Bill of Rights which Hamdi invokes in his petition is as much an instrument of mutual respect and tolerance as the Fourteenth Amendment is. It applies to American citizens regardless of race, color, or creed. And as we become a more diverse nation, the Bill of Rights may become even more a lens through which we recognize ourselves. To deprive any American citizen of its protections is not a step that any court would casually take.

Drawing on the Bill of Rights’ historic guarantees, the judiciary plays its distinctive role in our constitutional structure when it reviews the detention of American citizens by their own government. Indeed, if due process means anything, it means that the courts must defend
the "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions." Powell v. Alabama, 287 U.S.45, 67 (1932) (internal quotation marks omitted).

The Constitution is suffused with concern about how the state will wield its awesome power of forcible restraint. And this preoccupation was not accidental. Our forebears recognized that the power to detain could easily become destructive "if exerted without check or control" by an unrestrained executive free to "imprison, dispatch, or exile any man that
was obnoxious to the government, by an instant declaration that such is their will and pleasure." 4 W. Blackstone, Commentaries on the Laws of England 349-50 (Cooley ed. 1899) (quoted in Duncan v.Louisiana, 391 U.S. 145, 151 (1968)).

The duty of the judicial branch to protect our individual freedoms does not simply cease whenever our military forces are committed by the political branches to armed conflict. The Founders "foresaw that troublous times would arise, when rulers and people would . . . seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law." Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866). While that recognition does not dispose of this case, it does indicate one thing: The detention of United States citizens must be subject to judicial review. See Hamdi II, 296 F.3d at 283.

It is significant, moreover, that the form of relief sought by Hamdi is a writ of habeas corpus. In war as in peace, habeas corpus provides one of the firmest bulwarks against unconstitutional detentions. As early as 1789, Congress reaffirmed the courts’ common law authority to review detentions of federal prisoners, giving its explicit blessing to the judiciary’s power to "grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment" for federal detainees. Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 81-82. While the scope of habeas review has expanded and contracted over the succeeding centuries, its essential function of assuring that restraint accords with the rule of law, not the whim of authority, remains unchanged. Hamdi’s petition falls squarely within the Great Writ’s purview, since
he is an American citizen challenging his summary detention for reasons of state necessity."

 The writing of this opinion is simply stunning in it's prose, it's scope and thoughfulness of all the issues at hand.  I love when they pull out William Blackstone and his Commentaries on the Laws of England.  They admit that the law isn't that perfect, when it comes to war, it's really hard to neatly define it.

"The safeguards that all Americans have come to expect in criminal prosecutions do not translate neatly to the arena of armed conflict. In fact, if deference to the executive is not exercised with respect to military judgments in the field, it is difficult to see where deference would ever obtain. For there is a "well-established power of the military to exercise jurisdiction over members of the armed forces, those directly connected with such forces, [and] enemy belligerents, prisoners of war, [and] others charged with violating the laws of war." Duncan v.
Kahanamoku, 327 U.S. 304, 313-14 (1946) (footnotes omitted). As we emphasized in our prior decision, any judicial inquiry into Hamdi’s status as an alleged enemy combatant in Afghanistan must reflect this deference as well as "a recognition that government has
no more profound responsibility" than the protection of American citizensfrom further terrorist attacks. Hamdi II, 296 F.3d at 283."

"18 U.S.C. § 4001 (2002). Hamdi argues that there is no congressional sanction for his incarceration and that § 4001(a) therefore prohibit his continued detention. We find this contention unpersuasive.
Even if Hamdi were right that § 4001(a) requires Congressional authorization of his detention, Congress has, in the wake of the September 11 terrorist attacks, authorized the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks" or "harbored such organizations or persons." Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (Sept. 18, 2001) (emphasis added). As noted above, capturing and detaining enemy combatants is an inherent part of warfare; the "necessary and appropriate force" referenced in the congressional resolution necessarily includes the capture and detention of any and all
hostile forces arrayed against our troops."

In the second part here, is the decision on the Non-Detention Act of 1971 and they dismiss Hamdi's argument on it.  They point out that Congress has authorized his detention through Public Law 107-40 (AUMF).  In the end, they do agree that the detention of a US citizen is subject to judicial review.  It's true, the AUMF is an act of Congress and pretty much extend the reach of detainment to US citizens.

18 U.S.C. § 4001 (Non-Detention Act of 1971) regulates the detentions of United States citizens.
It states in full:
(a) No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.

The Padilla Case - Foundation of Section 1031 and 1032

Padilla Case -

This case has spanned many years since Jose Padilla was arrested back in 2002 for training with the Taliban and engage in acts of hostilities against the United States.  It actually still continues to this day in the civilian court system as Mr. Padilla's sentencing to 17 years to prison is being re-appealed for a harsher sentencing.  Originally the United States District Court for the Southern District of New York heard the case first, and back in December 2002 to uphold the Bush Administration's decision to hold Padilla as an enemy combatant.  It took another year to have the case appealed to the United States Court of Appeals for the Second Circuit, where in a 2 to 1 decision decided that Bush Administration overstepped their authority.  The following is some of the opinions written by the justices:  (2nd Circuit Decision - Original Text)

"We also conclude that Padilla’s detention was not authorized by Congress, and absent such authorization, the President does not have the power under Article II of the Constitution to detain as an enemy combatant an American citizen seized on American soil outside a zone of combat.

But presidential authority does not exist in a vacuum, and this case involves not whether those
responsibilities should be aggressively pursued, but whether the President is obligated, in the
circumstances presented here, to share them with Congress.

Where, as here, the President’s power as Commander-in-Chief of the armed forces and
the domestic rule of law intersect, we conclude that clear congressional authorization is required for detentions of American citizens on American soil because 18 U.S.C. § 4001(a) (2000) (the“Non-Detention Act”) prohibits such detentions absent specific congressional authorization.Congress’s Authorization for Use of Military Force Joint Resolution, Pub. L. No. 107-40, 115Stat. 224 (2001) (“Joint Resolution”), passed shortly after the attacks of September 11, 2001, is not such an authorization, and no exception to section 4001(a) otherwise exists.

In light of this express prohibition, the government must undertake to show that Padilla’s detention can nonetheless be grounded in the President’s inherent constitutional powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-38 (Jackson, J., concurring). We conclude that it Therefore, our holding effectively moots arguments raised by both parties concerning access to counsel, standard of review, and burden of proof. These details should not be read to suggest that Padilla is in fact innocent or that the government lacked substantial reasons to be suspicious of him. We include them because they has not made this showing. In reaching this conclusion, we do not address the detention of an American citizen seized within a zone of combat in Afghanistan, such as the court confronted in Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003) (“Hamdi III”)."

So it continued onwards towards the Supreme Court where it was turned down due to the Court held that the habeas corpus petition had been improperly filed because Padilla was being held in a brig in South Carolina, the petition should have been filed in the United States District Court for the District of South Carolina and should have named the commander of the brig and not the Secretary of Defense (because the brig commander was Padilla's "immediate custodian"). The Court reversed the decision of the United States Court of Appeals for the Second Circuit and remanded the case for dismissal without prejudice - that is, it overruled the Court of Appeals decision and ordered the dismissal of the case, allowing Padilla to refile the petition.

Indeed it was retried again and worked it's way into the US Court of Appeals for the Fourth Circuit where the majority decision that upheld the government's position of labeling Padilla, a US citizen, as an enemy combatant and to be held without charge in the military prison.  (US Fourth Circuit Decision - Original Text)
Suddenly, you'll see a wholly different opinion then the one from the 2nd Circuit:

"The exceedingly important question before us is whether the President of the United States possesses the authority to detain militarily a citizen of this country who is closely associated with al Qaeda, an entity with which the United States is at war; who took up arms on
behalf of that enemy and against our country in a foreign combat zone of that war; and who thereafter traveled to the United States for the avowed purpose of further prosecuting that war on American soil, against American citizens and targets.
We conclude that the President does possess such authority pursuant to the Authorization for Use of Military Force Joint Resolution enacted by Congress in the wake of the attacks on the United States of September 11, 2001. Accordingly, the judgment of the district court is reversed."

"The district court (of South Carolina) subsequently held that the President lacks the authority to detain Padilla, id. at 180-81, that Padilla’s detention is in violation of the Constitution and laws of the United States, id., and that Padilla therefore must either be criminally charged or released."  This uphold the 2nd circuit ruling so far.  In the end, the ruling judge for the Fourth Circuit, Judge Luttig ruled against Padilla to pave a way to a Supreme Court ruling.

However, later that year, the Bush Administration decided to transfer Padilla out of military custody into civilian custody and thus avoided the Supreme Court ruling on habeas corpus ruling for US citizens as enemy combatants.  The transfer had to go through Judge Luttig and the 4th Circuit, but the tone was definitely different this time.  Folks have commented that Luttig was scolding the Bush Administration for being a chicken or he believed the Supreme Court would actually reaffirm the government's position.  What we do know, Luttig wasn't happy and quit the Fourth Circuit for a job at Boeing soon afterwards.  (Fourth Circuit Transfer Ruling)

"Because we believe that the transfer of Padilla and the withdrawal of our opinion at the government’s request while the Supreme Court is reviewing this court’s decision of September 9 would compound what is, in the absence of explanation, at least an appearance that the
government may be attempting to avoid consideration of our decision by the Supreme Court, and also because we believe that this case presents an issue of such especial national importance as to warrant final consideration by that court, even if only by denial of further
review, we deny both the motion and suggestion. If the natural progression of this significant litigation to conclusion is to be predetermined at this late date under these circumstances, we believe that decision should be made not by this court but, rather, by the Supreme
Court of the United States."

The conclusion of this case is still being dealt through the civilian system today; however, that's not the focus of the post.  The thing is, the ruling of the land is the Fourth Circuit ruling to be held as an enemy combatant and be held without charge in a military brig.  Unfortunately, we know that the War on Terror is an indefinite period; however, through AUMF, conclusion of hostilities in legal terms is the end of the War in Afghanistan if Mr. Padilla was still being held militarily.  Afterwards, he can have some recourse to civilian court.  It must be noted that while in military custody, there is due process, but it's not in as large a scope provided under the United States Constitution.

Continuation of NDAA Section 1031 Review

I should clarify some points on the NDAA here.  I grabbed some new information from several sources that people should take a look at.  First off, Lindsey Graham CSPAN video.  If you don't watch, you won't understand the focus on just Section 1031.

Senator Lindsey Graham explaining 1031 and 1032 Pt. 1
Senator Lindsey Graham explaining Sec. 1031 and 1032 Pt. 2

Now with this valuable tidbit of information, we'll disregard Section 1032 as unimportant since it does not deal with American citizens and Section 1031 does.  I shall remind people once again of Public Law 107-40 for AUMF.

(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.

Let's just forget the NDAA for like two minutes here and look at the Public Law 107-40 - Authorization of the Use of Military Force (AUMF) that was passed back in 2002.  To be honest, this is a fairly broad stroke for Presidential power against any form of terrorism from anybody, with the key words "use all necessary and appropriate force".  If we wanted to whine about civil liberties, we should have cried wolf 10 years ago.  Now, we'll just go through Section 1031, and please watch the video, although also take the time while your watching the clip to see more of the discussion.

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) Authorities- 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

(f) 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 thing that baffles me is paragraph (d) on construction of Sec. 1031, if this expand the authority of the President or scope of AUMF, I don't know what does, since this section does both, or the fact that AUMF already has such a large scope that it really doesn't matter.  In the end, paragraph (d) is worthless.  Even reading the first paragraph of 1031 is almost like reading Public Law 107-40, it's like formalizing that "Oh hey guys, we'll be using the US military to capture terrorists anywhere in the world.  I know we said this like 10 years ago, but hey, we'll do it again!"

So yes, if you become a terrorist, you are fucked.  Obvious? Very.  Although to be certain of the wording of 1031(b), you pretty much have to be supporting al-Qaeda and the Taliban or Chinese military hackers to thrown into Gitmo.  Yes, you may be detained without trial although with Sen. Graham, he called the War on Terror, a war without end, so that sucks.  In the end, being an American citizen cannot save you from having a life in prison, forever.  Although, I have to say, if it was an American jail that wasn't Gitmo, probably living decently.

Graham states in that video that Sec. 1032 is only for noncitizens captured within the United States.  He does reference a case called the Padilla Case that went to the US Fourth Circuit that ruled an American citizen can be held as an enemy combatant. 

Note: Tired, but will add more later.

Added on 12/15/2011 -

Let us continue to break it down, especially paragraphs (b1) and (b2) under covered persons.  Can it be said that we are truly losing liberty here with this "covered person" language?  Remember, Lindsey Graham said directly on CSPAN that Section 1032 doesn't apply to American citizens.  Since he is one of the authors of the NDAA, he word has more weight than any commentator that has written or spoken on the bill period.

(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.

•  So anyone behind 9/11/01 attacks is covered by 1031, nothing really to be concerned about this unless you were helping out. 

(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.

• First off, lets look at the last part of the paragraph (2) at the definition of "enemy forces" which is actually described as al-Qaeda, the Taliban, or associated forces.  I assume associated forces are probably classified as other terrorist groups that the US has already defined as terrorist nations, organizations, or persons, legally speaking, and publicly known.  Anyone who has committed a belligerent act or has directly supported such hostilities goes towards the definition of "enemy forces" as I already described before.  To be "covered" under this paragraph, you must be either part of this enemy forces or have (key word) substantially supported the enemy forces.  Although there is no further clarification of what "substantial support" entails, it probably has to do with knowledgeable intention of supporting them.  I know the example of having a Red Cross worker in Afghanistan being arrested under this law has been tossed out here, but in the court of law, the worker probably had no idea he/she supported the enemy forces knowingly.

It seems this definition is pretty clear, you can still protest without being detained.  Help a known terrorist organization, get detained.  I'm pretty sure if I talk to several lawyers, they would agree with me on this assessment.

Next, we need to look at several legal cases, one knowingly through the videos as the Padilla case in the US Fourth Circuit.  Other cases we need to look are Hamdi vs. Rumfield (2004), Hamdan v. Rumsfeld (2006), and our precedent legal case for today is Ex parte Quirin (1942).  We'll also take a look at the Non-Detention Act of 1971. 

National Defense Authorization Act Review of Section 1031 and 1032 with Commentary

Facebook commenting is enough to make me vomit to even make this commentary, but here we go covering Sec. 1031 and 1032.  Bolded bullet points are my commentary to the original text.

Truth or Myth?  You'll find out here for sure.

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.

• So far in Sec. 1031, we have Public Law 107-40 for the use of military force under covered persons in paragraphs (1) and (2), pretty much saying anyone supporting hostilities against the US and allies is being pursued. 
• Public Law 107-40 - Authorization of the Use of Military Force (a refresher if you need it.)

 (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.

(b) War Powers Resolution Requirements-

  (1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.

(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) Authorities- 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

(f) 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 rest of Section 1031 covers what happens in custody in paragraph (c) with the following options in paragraphs (1) through (4), ranging from detention without trial to extradition to the person's country of origin.  Paragraph c will provide the framework for most of Section 1032 as we will see later.  I mean sure, we're hypocrites for detaining people without legal recourse being "just" and all.
• The other interesting takeaways from the last parts of 1031 is paragraph (d) (Construction) and paragraph (e) (Authorities power).  The inclusion of section d testifies that the authority of the President or AUMF that section 1031 will not change the powers of the laws to either expand or shrink under this section. 
• Under section 1031, paragraph e, existing laws pertaining to US citizens, legal aliens or others pretty much supersede section 1031. 

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.

• This is where the controversy starts, but it's really paragraph (4) where people are scared.  When we look below at the covered people below in paragraph (2), it's really standard stuff of whom we or I would think to be detained.  I have underlined key words and Public Law 107-40 for you to review again.  I mean sure, we're currently experiencing a "course of hostilities" with al-Qaeda and such.  I think also review is in order of the "law of war" in which I shall provide a link to. 
• Law of War Link

(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.

• Paragraph (3) is just stating, read section 1031, paragraph (c) and the options to be used on detainees are given if captured.

(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.

• Okay, paragraph (4), the part where the government in the name of national security to not care about the normal requirements of "covered people" in paragraph (2).  The wavier however, must clear Congress, so I guess there's a little relief there.  Sure, a lot of us don't trust Congress.  I have to concede that it's pretty vague if that writing can be for public view when it does occur.  However, we will read further below...

(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.

• Oh what is this ladies and gentlemen, an exclusion within an exclusion, well, that's government for you folks.  If we think about it, paragraph 4 just got whacked with Section 1032(b).  I'm not a legal expert here, but the words "does not extend" means paragraph (1a) is pretty much meaningless.   I mean come on, the wording here isn't confusing and stuff, it's straight-forward.  The requirement is paragraph (1a) and US citizens are not, I repeat myself here, are not bound to the requirements of Section 1032, paragraph (1).  
• Thus if we think logically "If US citizens are not bound by paragraph (1a), then this section is a bunch of bullshit repeat wording? Plus, it doesn't apply to use, oh my gosh, let's get to the next bandwagon, SOPA."  
• If you're a conspiracy theorist, then NDAA was a nice sidetrack from the lack of attention towards SOPA.
• Don't get me wrong here, we want to be careful of encroachment on civil liberties, but definitely don't want to go wholly overboard conspiracy theory here. 
• I think the lemmings everywhere have done themselves a nice job.  The other parts below is implementation stuff.  As I close, I actually think what was more interesting in the NDAA than these two sections was what people didn't pay attention to.  I found some interesting sections to read in there, although I clearly didn't read all of it, it's way too long.  Personally, I found section 1200 or so to be fairly interesting.

Indeed.

(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 subsection (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.

(d) Effective Date- This section shall take effect on the date that is 60 days after the date of the enactment of this Act, and shall apply with respect to persons described in subsection (a)(2) who are taken into the custody or brought under the control of the United States on or after that effective date.