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.