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December 13th, 2011 NDAA & Obama’s Hypocracy

This post is primarily about the National Defense Authorization Act (NDAA), which is presently in the process of legislation to be updated. You’ve probably heard at least something about this in the news. There’s a good reason for that. Let’s explore that reason, shall we?

This year’s updated bill, H.R.1540, updates the laws in place pertaining to detainees of our military, and when the military can be used to detain someone. In section 1032, they define specifically the conditions for required military custody.

H.R. 1540 §1032 – “REQUIREMENT FOR MILITARY CUSTODY” (subsections a & b)

  1. 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–
      1. 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
      2. 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.
    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.
  2. 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.

Let’s dissect this a bit.

Subsection A says the US military is required to hold any terrorists or potential terrorists (§1032.a.2.A) who’ve helped or attempted to plan or make an attack against the US(§1032.a.2.B). Our military are authorized to use military force to obtain and detain these people (§1032.a.1). It also says that the Sec. of State can waive the requirement of the military to detain these people if Congress agrees it’s a good idea (§1032.a.4).

Basically, if you’re anything like a terrorist, and you indirectly participate in an attack against the US, the military has the automatic authorization to kick your door down, toss a bag over your head and ship you to guantanamo. No trial, no justice, just military precision. That’s pretty lame. At least they put in provisions to prevent this from happening to US Citizens in section b:

Subsection B says that this requirement does not extend to US Citizens or Lawful Residents. Look carefully at that wording. The “requirement to detain a person in military custody [...] does not extend to” …So, they’re still authorized to do it, then- just not required to. That’s less comforting.

There’s been a lot of talk about section 1031 lately, too. You might say, this is where all the serious problems are.

H.R.1540§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.”

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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).

Subsection A basically authorizes the president to anything deemed necessary with regards to military force, including the ability to detain people. This is seperate from §1032 above, mind you.

Subsection B (1) lists terrorists and terrorist aids. (2) however, includes the following: (&sept;1031.b.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 US or its allies, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”

Let’s break that down a bit, shall we?

“al-Qaeda, the Taliban, or associated forces”
Who defines what an associated force of these groups is? Our intelligence isn’t always 100% accurate.

“including any person who has committed a belligerent act [...] in aid of such enemy forces.”
This throws up major red flags. If you were at your local Occupy movement and told an officer “the Taliban have won, facist” this could apply to you. What does this entitle them to do to you? According to the following section, “Detention under the law of war without trial (until the US decides the hostilities are over.)” (§1031.c.1) Let us not forget- the “hostilities” in question have been going on since Bush Jr.’s first term.

That’s the begining of what people are so upset about. This time, instead of that nice clear concise “doesn’t apply to citizens,” we get a loophole filled paragraph.

Subsection E seems like it puts this all in the proper allowances, but there’s a subtle catch here. It’s my understanding that the courts are the only entities with the power to construe law in a way that lasts longer than single incidents. Legal precident must be established, and only courts can establish legal precident. Handily, §1031 specifically bypasses the court system. If you’re found to be guilty by the military, you’re thrown in a cell without any chance to prove your innocence. This is a rampant violation of the 5th amendment disguised with bureaucracy.

It’s little known that §1031 used to have a subsection similar to §1032.b, but it was removed before the bill went to the house. By whom you might ask? Let’s have a look at the evidence presented by C-SPAN.

With this in mind, let us end with a quote from our beloved president Obama, from his Inaugural Address in January of 2009.

“Let it be said by our children’s children that when we were tested we refused to let this journey end, that we did not turn back nor did we falter; and with eyes fixed on the horizon and God’s grace upon us, we carried forth that great gift of freedom and delivered it safely to future generations.

People frequently ask me why I’m so upset with Obama. My response these days is to ask them how they’re not.

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