It seems that the senate has
passed s.1867, a bill that would, according to the ACLU, give the government the power to detain US citizens accused of (yes, just accused of) "beligerent acts" indefinitely, without any sort of due process.
I, frankly, do not see how that can be read from this bill, and that rather extreme interpretation has me a little baffled, although I do agree that some of the language is dangerously vague and subject to mis (or dis) interpretation.
Read it (the controversial section) for yourself:
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) 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).
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.
(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 seciton shall be made unless consistent with the requirements of section 1033.
(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 of the United States.
(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.
It seems to me that this states that :
Persons involved in the 2011 WTC attacks, specific organizations, and their affiliates are subject to detainment in military custody, if they are not US citizens or legal residents.
Military custody is imprisonment subject to the protections of the Geneva convention. If anything, this bill offers greater protection to foreign combatants, but does not extend this privilege to citizens and residents engaged in belligerent acts connected to specified acts and organizations: but maybe I read it wrong?
(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.
Notably, I notice that no broad new classes of persons are made eligible for detention under 1031, except that citizens and residents to which 1 or 2 above apply may find themselves in a legal vacuum.
Interestingly, the Obama Administration has stated in this policy letter that they do not support the bill, but this is not a happy warm fuzzy Obama is protecting the nation moment.
The letter text makes clear that the administration does not want to be hobbled in their ability to perform indefinite, unsupervised, unlimited detention and "interrogation" (Torture much, Mr President?) that clearly would not be permissible under the Geneva convention.
I would like to make it abundantly clear at this point that I am a firmly against state-sanctioned torture. Torture should always be illegal, and if performed, performed under the duress and urgency of the situation for which the torturers are willing to risk their freedom or lives to perform. If discovered, perpetrators of torture should be subject to severe punishments in federal criminal proceedings, possibly including the death penalty. I believe that this is the only way that this monster can be kept in check. I also believe that indefinite detention without any framework of charge, legal recourse, review, or appeal is certainly torture, in itself.
That said, I can see the argument against affording terrorists the protections of the Geneva Convention, as this international treaty assumes a context of nation vs nation warfare within the context of other treaties on the conduct of war. Clearly, terrorist organizations do not adhere to these treaties themselves, and arguably then, should not be protected by treaties to which they themselves do nod abide.
Nonetheless, if the United States is to stand for the rule of law and the right to peaceful existence, then we must not openly hold anyone, no matter how despicable, in absence of a valid legal framework that we would endorse for global use. We must publicly renounce torture in all of its forms.... and we should keep our secrets secret.
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