Lately I’ve been caught up in the same rage as a lot of my friends and acquaintances, regarding the National Defence Authorisation Act for Fiscal Year 2012 which has been making the rounds in the US Congress. Even Wil Wheaton has been weighing in in his own fashion. The word on the interwebs was that this bill would turn US soil into combat soil and allow the military to detain civilians for any reason, for any amount of time, without need for the usual due process of law. Basically, lock you up and throw away the key and there’s nothing you can do about it.
This would’ve seemed impossible a few years ago, even as late as early 2001, before we fell for the mass and ongoing hysteria sparked mainly by governmental response to the attack on the World Trade Centre in September of that year. That in itself is a topic for another blog, but I bring it up as a sort of zeitgeist marker. Today, the idea that the US Government would do this doesn’t seem so farfetched.
Still, the skeptic in me kept my eyes and ears open, until a friend of mine retweeted a link to an article that claimed to be from a liberal website and sought to debunk the idea that NDAA would give the military such powers over US citizens.
That’s when I realised I would have to read this thing myself.
I won’t claim to have read the whole thing, as most of it has to do with Air Force satellites and Navy vehicles and budgets and things like that that I can’t hope to grasp in one day. I have, however, gone down the table of contents and picked out the sections that concern me and most of my friends. I will list them here with a short explanation of what I read.
Also, you can read the bill yourself by clicking on this link.
TITLE V—MILITARY PERSONNEL POLICY
Subtitle C—General Service Authorities
Sec. 527. Freedom of conscience of military chaplains with respect to the performance
This has been talked about in equal rights circles since the repeal of DADT. The ‘Right’ would scream about chaplains being discriminated against for not wanting to officiate same sex weddings. Let’s see what the bill says about that, shall we?
4 A military chaplain who, as a matter of conscience
5 or moral principle, does not wish to perform a marriage
6 may not be required to do so.
There it is, my friends. That’s all it says. I don’t know how many chaplains the troops have access to routinely, so I don’t know what recourse a couple may have to get married otherwise, but I don’t think we can expect anything else when we have to live with the haters. I think they just put this in to make them happy and move on. Or maybe I’m being too kind. Besides, who wants the chaplain to perform ceremonies at gunpoint anyway? Talk about ruining the special day.
The next bit I can probably look at all at once.
Subtitle E—Military Justice and Legal Matters Generally
Sec. 551. Reform of offenses relating to rape, sexual assault, and other sexual
misconduct under the Uniform Code of Military Justice.
Subtitle F—Sexual Assault Prevention and Response
Here it looks like they made a point of replacing ‘engages in’ with ‘commits’. I think that’s a good change. There is certainly a commission of an act which is a crime in this instance. Also, the language includes all kinds of coercion, not just force. Misrepresentation, use of drugs, when the person is unconscious, it’s all there. The rest of it is changes made to clarify the language. I suggest if you’re interested you read it yourself; if I copied everything here this blog would be megabytes long.
Then follows a whole bunch of more stuff about aircraft carriers, space operations, and budgets for all of that.
And thus we come to the crux of the matter.
Subtitle D—Detainee Matters
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.
Sec. 1032. Requirement for military custody.
Sec. 1033. Requirements for certifications relating to the transfer of detainees
at United States Naval Station, Guantanamo Bay, Cuba, to
foreign countries and other foreign entities.
Sec. 1034. Prohibition on use of funds to construct or modify facilities in the
United States to house detainees transferred from United
States Naval Station, Guantanamo Bay, Cuba.
Sec. 1035. Procedures for periodic detention review of individuals detained at
United States Naval Station, Guantanamo Bay, Cuba.
Sec. 1036. Procedures for status determinations.
Sec. 1037. Clarification of right to plead guilty in trial of capital offense by
I will try to make this concise, but it’s a lot to cover.
Subtitle D—Detainee Matters
16 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.
20 (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.
3 (b) COVERED PERSONS.—A covered person under this section is any person as follows:
5 (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.
9 (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.
Okay, so this goes after any guys from 9/11 we haven’t caught yet. Honestly I think whoever’s left is small potatoes at this point. We got Osama, blah blah yada yada. It’s the last line that I find more troubling, as it seems overly vague. What does it mean by supporting in part? Does moral support count? Does ‘I agree with what those bastards did’ count? Not that I’m defending that, but saying you agree with something doesn’t mean you did it, or in any way helped it come about, and it’s protected speech, last I heard. What about ‘belligerent acts’ against the US or its partners? Too broad. But let’s keep reading.
(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:
19 (1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.
22 (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–
This assumes there will ever by an end to the hostilities. (Please to be reading Orwell’s 1984 as soon as possible.)
(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.
3 (4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.
Okay, so there is an assumption of a trial at some point, or sending them home. Meaning we’re talking about foreigners.
(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.
10 (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.
Wait what? Let me read that again. It changes nothing about the existing laws relating to detention of US citizens and lawful resident aliens. Right after that there is an allowance for a waiver of the above.
(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.
But right after that it goes on to say:
(b) APPLICABILITY TO UNITED STATES CITIZENS AND LAWFUL RESIDENT ALIENS.—
10 (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.
14 (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.
Perhaps an earlier version of the bill did allow for citizens to be detained indefinitely, but this does not. There’s some stuff about Guantanamo after that, but at this point, I have a headache.
I’m no legal expert, far from it. This stuff is written in a combination of legalese and doublespeak, so if you see something I’ve missed, please leave a comment and I will look at it and make any additions or corrections. For now, I think we can relax a bit, though.
Now we need to look at SOPA.