Indefinite detention of American Citizens – without charges – in the USA now a part of the Defense Authorization Act

A good example of the hive mind at work. - promoted by Bob_Neer

According to the ACLU (American Civil Liberties Union) and my read of the bill  S. 1867 which is up for a vote Monday or Tuesday (11/28/11 or 11/29/11) contains provisions that would:

1)     Explicitly authorize the federal government to indefinitely imprison without charge or trial American citizens and others picked up inside   and outside the United States.

2.     Mandate military detention of some civilians who would otherwise be outside of military control, including civilians picked up within the United States itself; and

3.    Transfer to the Department of Defense core prosecutorial investigative, law enforcement, penal and custodial authority and responsibility now held by the Department of Justice.

My ancestors came to this country because they sought the rule of law, and freedom from “the knock in the night.”  When John Adams drafted our states Constitution, and later, when the Constitution of the United States was ratified, a Bill of Rights was included so that the tyranny of rule by fear and fiat would never occur here.  That is why Abraham Lincoln called this country “…the last best hope of mankind.”

Remember the internment of innocent Japanese-Americans during World War II?  This bill defines your front yard, Harvard Yard, anywhere as “part of the Battlefield.”  Watch out Occupiers!  Those in the Occupy movement should also mobilize against the passage of S. 1867 in its current form.  Here is a link where you can join a petition and also send an email to your senators to oppose these  provisions 

After all if Occupy is seen as a threat to the wealthiest one percent – and to congressmen and their staffers joining that exclusive club…well, read on!

The very freedoms that made the United States of America a source of hope is at risk in this bill, but also because of the Wall Street/Congressional alliance.

That alliance has led to 50% of congressional staffers and elected congressman and senators “retiring” to become lobbyists, but also to passing laws making profit from insider trading legal for congressman, senators and their staff.  What would cause any employee of Bank of America, or Prudential to potentially serve 5 – 10 years in a federal pen is legal for congressmen and their staffers.  Just read the article and follow the links.  You do not have to take my word for any of this.


Could it be that the real reason for the crackdown on Occupy is due to Occupy being perceived as a threat to this stream of endless wealth to those now holding office, and their staffers?

Recommended by kosta.


19 Comments . Leave a comment below.
  1. Can we see the text of the offending provisions?

    I’m generally sympathetic to the ACLU’s aims, but based on some emails I have seen in the past I have sometimes drawn the conclusion that they hyperventilate a bit and don’t give the whole story.

  2. I can't find the

    text of the bill, but found a bunch of stuff at Open Congress.

  3. OK, that still took a lot of digging.

    Yes, I clicked the link Deb provided, which only led to the ACLU’s interpretation of the bill and not the bill itself. Even in Thomas it is not at first obvious where the offending provisions are; the table of contents alone is enough to make one’s eyes glaze over and the summary by CRS didn’t say anything that raised a red flag either. I went back through Deb’s link and double-checked and this time I went ahead and clicked on a link in the article which I hadn’t before because it looked like it was just going to an ACLU page to either give money or sign a petition. Only there did the petition say that it was sections 1031 and 1032 that should be opposed, so I went back to Thomas to look up those sections. Only 1032 had a direct hyperlink from the contents; 1031 can only be found by clicking on the subheading. Section 1032 explicitly says that the provisions shall NOT apply to citizens and legal resident aliens.

  4. Link to full text of S. 1867 & more, below (Now don't let your eyes glaze over, this really IS serious stuff)

    The concern is that amendments supported and drafted behind closed doors would have this impact. Here is a list to ALL the pending Amendments (talk about eye glazing). That list is on the Senates website. The Committee that did the “behind closed doors drafting” was the Armed Services Committee – the movers and shakers were Sen. Levin and Sen. McCain.
    Interestingly, sections I found of the Congressional Record do seem to support an expansion of executive power in this legislation, unless it is amended. See this excerpt.:

    HERE is the full text – and the “devil” really is in the details.

    Warning, the full bill is 632 pages – and I admit I haven’t read each and every one of those pages. The question is, who has?

  5. Nope, link problem again with FireFox (thought I did it right) - well here is the naked link to the legislation

  6. More links - THIS really is serious; minions wrapped in the flag making indefinite detention decisons about citizens is just not okay - at least with mede

    Amendments link


    And a nice long article with live links, hopefully I get the link in here live:

    So, yes, there does seem to be a significant expansion of detention, a change in authorization, and further concentration of power in the executive, all of which would make the United States of America less about “the rule of law” and more about “the rule of men” – not necessarily the president, but some minion behind a closed door wrapping themselves in a flag.

    • That conflicts with my reading of this

      First of all, section 1031(d) of the proposed bill explicitly states the following: “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.” That seems like a pretty explicit attempt on the part of the drafters to ensure that this does not authorize executive action beyond what already exists in the AUMF.

      Secondly, if anything, these sections appear to constrain executive discretion. Section 1031(b)(2) contains broad language defining covered persons as anyone who “substantially supported Al Qaeda, the Taliban, or associated forces…” Nevertheless, this appears to be substantially less broad than the original AUMF, which allows the president himself to determine who aided the 9/11 attacks. At least this has a more focused description of “the enemy.”

      Thirdly, this bill contains limits on and greater congressional oversight of detainee transfers from Guantanamo (section 1033).

      Of course, this changes nothing about the overall constitutional problems of Guantanamo and detainees, which remain as serious as ever. Nevertheless, these points are another reminder to always reference the actual text of a proposed statute rather than rely on an interest group’s interpretation of it.

      • These bills need to be read

        with the most liberal possible interpretation.
        I have seen Homeland Security at Occupy Boston and read of their participation in a variety of criminal investigations, including a local child pornography case.
        Add to the human nature of law enforcement to attempt to use every tool to accomplish their goals, powers creep and expand.
        Does anyone remember that Social Security numbers would be limited for the sole purpose of our Social Security accounts?

  7. Hoyapaul - the problem is a Levin/McCain amendment voted out favorably by the Armed Services Committeee

    As well as internal provisions. As I said, though, this is a 632 page bill and I don not claim to have read the WHOLE bill carefully, nor all the Amendments. I hope someone has time to do so! I am going back to preparing for a trial next week; I just can’t. In 632 pages I am sure there are positives, negatives, and neutral provisions. More likely than not, anyway. I would truly love it if you, or anyone else on this site, read the whole thing and reported back.

    For Amnesty International, the ACLU and others to raise these concerns, the concerns are not likely to be either unfounded or frivolous.

  8. The link to the .pdf of the WHOLE 632 pages

    The way Sec. 1031 reads, it is all a matter of interpretation – what is a “hostile act” or an “associated” person? The interplay between Sec. 1031 and Sec. 1032 is as depicted, and I understand Sen. Udall’s amendment (do you all want links) would clean this up – and an amendment from Sen Levin & Sen. McCain would make 1031-1032 worse. Either we have the rule of law (and equal protection under the law) or we don’t, and instead if you annoy the wrong people – away you go, heading towards the “knock on the door” and the cowardly night arrest, in secret.

  9. It's only a thousand words, for Pete's sake

    Dear Senator,

    I, Acey L Yoo, strongly urge the Senate to oppose sections 1031 and 1032 in S.1253, the National Defense Authorization Act for Fiscal Year 2012 (NDAA).


    [Your Name]
    [Your Address]
    [City, State ZIP]

    (( It appears to be S.1867 that gives offense. Close enough for Fedguv work, though. I guess.

    (( Anyhow, the bad part goes like this: ))

    [p. 359] *** SUBTITLE D—DETAINEE MATTERS ***


    (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
    [p. 360]
    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 10 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
    [p. 361]
    considered to be “covered persons” for purposes of subsection (b)(2).




    (1) IN GENERAL.—Except as provided in paragraph (4), the Armed Forces of the United States 8 shall hold a person described in paragraph (2) who is captured in the course of hostilities authorized by 1the Authorization for Use of Military Force (Public 11 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 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.


    (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
    [p. 363]
    extent permitted by the Constitution of the United States.


    (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
    [p. 364]
    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.


    Happy days.

  10. All in all..

    With amendment after amendment put in most bills, you have to keep reading and re-reading the text. I’m a purist…if it even slightly smells of an affront to the fourth through seventh Constitutional Amendments, it needs to be crushed. IMHO. And this one is a stinker.

  11. And furthermore

    This just got picked up on Truthout:

    So, I don’t think the ACLU made this out of “whole cloth.”

  12. Thank you...

    Thank you for raising this issue.

    • You are welcome. Will there be enough "wide awakes" -

      Historically, the “wide awakes” were the supporters of Abraham Lincoln. I have to admit I LOVE that name for the supporters of Lincoln.

      The reality you and I face is that “we will have the worst government and the least freedom we tolerate” AND “the price of freedom is eternal vigilance” – burying provisions that diminish freedom in a 632 page bill is business as usual. So is double speak.

      I am not sure it is as bad as Gibson says in his OpEd, but here is a truly sobering piece of journalistic analysis w/embedded links:

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Tue 28 Mar 11:53 AM