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.