I have edited the note to reference the correct bill, and I have added hyperlinks to basically every mention of the relevant bills/laws so that you can read them for yourself over & over again.
The original (but edited & updated) note:
Commentary on [HR.1540] (a draft of NDAA for FY2012) -OR- Demand Repeal of the USA PATRIOT Act and Restore The Bill of Rights
First I'd like to point out that I'm against this bill being passed and that I've already called and written to my Congressional representatives making my stance clear. But this bill is not exactly what is being portrayed in the media and on the internet [Indefinite Detention of Terrorism Suspects].
The National Defense Authorization Act is a law that must be passed each year, as a specific authorization of how the budget will be spent at the Department of Defense. It is considered a "must-pass" piece of legislation since without it there would be a big pile of cash (which amounts to between 1/3 and 1/2 of our federal discretionary spending) that no one could touch. One way or another, Congress will pass something called "The National Defense Authorization Act of 2012" before the 112th Congress is concluded. They do it every year. True, sometimes it's called "The Department of Defense Authorization Act" or something like that.
[The bill did not reach the president's desk until Dec. 31st, 2011 - over two months into Fiscal Year 2012. Whatever objections Obama had to it - if any - had to be suspended or the military would literally cease to function. So in a way, Congress intentionally held the US military hostage over this bill.]
Every year, there are several different drafts introduced in the House of Representatives (denoted by "H.R." and followed by a 3 or 4-digit number) and the Senate (represented with an "S." followed by a 3 or 4-digit number). This year, some of those drafts (I don't know if I can find them all) are called:
- H.R. 1540 Sponsor: Rep McKeon, Howard P. "Buck" [CA-25] (by request) (introduced 4/14/2011)
- S. 981 Sponsor: Sen Levin, Carl [MI] (by request) (introduced 5/12/2011)
- S. 1253 Sponsor: Sen Levin, Carl [MI] (introduced 6/22/2011)
- S. 1254 Sponsor: Sen Levin, Carl [MI] (introduced 6/22/2011)
- S. 1867 Sponsor: Sen Levin, Carl [MI] (introduced 11/15/2011)
One thing you have to understand about bills in the House and Senate is that they get voted down for silly reasons like the way one line reads or because certain members of Congress are bent on inconveniencing the President. Because of this, whether bills originate in the House or Senate, they are often made in multiple drafts- this is especially true of the ones which are required to be passed into law each year. One Congress member, in this case Senator Carl Levin (D-MI)- Chairman of the Senate Committee on Armed Services, submits several incredibly similar drafts in the hope that one will pass. It is unclear to me whether the good Senator actually wrote this bill or if he is in fact just "sponsoring" it. That calls into question whether he (or anyone else, for that matter) has actually even read it.
If you watch C-SPAN, you may be aware that they do in fact read aloud entire bills during sessions of Congress, which is why so many of the seats are empty. None of them wants to be caught sleeping on the job.
Sometimes bills are written by lobbyists, delivered to Congressmen, and are read in session and then voted on... Yes, even passed into law. These become public law just like any other. It's a shame and a travesty of our democratic process-- but our Congress is too busy, it seems, to write- or to even read- the laws which they pass.
Another thing you have to know about these laws is that, like the lyrics of a Steve Miller song, they are endlessly self-referential. Mostly, they read like this excerpt from S. 1253 --
"Sec. 315. DISCHARGE OF WASTES AT SEA GENERATED BY SHIPS OF THE ARMED FORCES.: `(F) This paragraph shall not apply during time of war or a national emergency declared by the President or Congress.'.(b) Conforming Amendments- Section 3(f) of the Act to Prevent Pollution from Ships (33 U.S.C. 1902(f)) is amended-- (1) in paragraph (1), by striking `Annex V to the Convention on or before the dates referred to in subsections (b)(2)(A) and (c)(1)' and inserting `subsection (b)'; and(2) in paragraph (2), by inserting `and subsection (b)(3)(B)(i) of this section' after `Annex V to the Convention'."
...So you have to find this previous piece of legislation and find out what they require in all of these sections-- while you pray that it has actual text and doesn't reference some earlier law which is yet another endless list of "strike this- insert that". It sucks, really. I think I understand why Congress "works" the way it does.
HR. 1540 (also known as The NDAA of 2012)
Since this piece of legislation came to national attention, I have read and re-read it. Now that The Daily Show has done a spot on it-- I really have to make some kind of official statement [Also see Stephen Colbert's piece on the Authorization for Use of Military Force], because the people commenting on this bill don't have a clear picture of the entire situation.
Here is the specific section in question:
"Subtitle D--Detainee Matters SEC. 1021 . 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; 50 U.S.C. 1541 note) 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) 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)."(Sec. 1021 Public Law 112-81)
Yes, it does include the text, " (1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force."
This does NOT mean that the law of war extends into the Continental United States.
Read "(e)" - I have put this one in bold face.
Here is the entire text of the "Authorization for Use of Military Force"
(Public Law 107-40):
" Public Law 107-40
Joint Resolution
To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States. <<NOTE: Sept. 18, 2001 - [S.J. Res. 23]>>
Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and
Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; andWhereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and
Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and
Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, <<NOTE: Authorization for Use of Military Force. 50 USC 1541 note.>>
SECTION 1. SHORT TITLE.
This joint resolution may be cited as the ``Authorization for Use of Military Force''.
SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) <<NOTE: President.>> 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.
[[Page 115 STAT. 225]]
(2) Applicability of other requirements.--Nothing in this resolution supercedes any requirement of the War Powers Resolution. Approved September 18, 2001."
So, in fact
Nevermind that Congress basically gave the President carte blanche to make war with anyone in the world, be it "...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."
The President already had these powers of authority- this law is still on the books- this is one piece of hastily passed legislation that went through immediately following 9/11 ( none of which have been repealed) that actually rescind (or suspend) the Bill of Rights.
The most famous one of all is the USA PATRIOT Act (UNITING AND STRENGTHENING AMERICA BY PROVIDING APPROPRIATE TOOLS REQUIRED TO INTERCEPT AND OBSTRUCT TERRORISM) of 2001 (Public Law 107-56).
This is the law passed on October 26, 2001 that more or less suspends the Bill of Rights- Amendments 4, 5, 6, 7, 8 -and possibly 1, 3, 9 & 10 depending on your interpretation of the law.
The USA PATRIOT Act allows government agents to enter and search your home without your knowledge or consent, sift through every communication you have made since- perhaps October 26, 2001- (be it email or web pages browsed or phone calls or text messages), to freeze (or seize) your assets and holdings, to apprehend you in secret and hold you without access to anyone- indefinitely- all because they "suspect" you *might* be a terrorist. No holds barred. Whether you are a US Citizen or a Legal Resident Alien or whether you are a foreign insurgent on a distant battlefield. It doesn't even necessarily include "those responsible for the attacks on 9/11".
What does the law say? It's a very long text, so I'll point out some parts and you can use the links to the document to read it for yourself.
Read "Title IV, Subtitle B, Sec. 411- Definitions Relating to Terrorism" -- that one is specifically for "Aliens" AND- for everyone else: "Title VIII - Strengthening Criminal Laws Against Terrorism", especially Sections 801-814.
However I will summarize the definition of who is a terrorist, since it's rather lengthy and scattered throughout the lengthy text in rash-like blisters--
[paraphrase]: Terrorism/a terrorist act/a terrorist is defined as anyone who carries out, plans, has previous knowledge of, has provided funds directly or indirectly (whether they know or "SHOULD know" where their money went), or conceals any activity which threatens life, injury or property of US persons or residents with the aim of affecting the policy or actions of the United States government.
This is another law which almost all of Congress failed to read, and some people believe- with good reason- that it was actually written well before 9/11 and was waiting to be printed and rushed through Congress given the opportunity. It has been re-authorized and amended in countless ways since then. I have not read all of the new parts.
Bush's Executive Order defining what terrorism actually is:
Executive Order 13224 (September 23, 2001)
“Sec. 3. For purposes of this order:(a) the term "person" means an individual or entity;(b) the term "entity" means a partnership, association, corporation, or other organization, group, or subgroup;(c) the term "United States person" means any United States citizen, permanent resident alien, entity organized under the laws of the United States (including foreign branches), or any person in the United States; and(d) the term "terrorism" means an activity that --(i) involves a violent act or an act dangerous to human life, property, or infrastructure; and(ii) appears to be intended --(A) to intimidate or coerce a civilian population;(B) to influence the policy of a government by intimidation or coercion; or(C) to affect the conduct of a government by mass destruction, assassination, kidnapping, or hostage-taking.”[http://www.state.gov/j/ct/rls/other/des/122570.htm]
Hmm. It really depends on who's asking the question, "Who is a terrorist?" doesn't it?
What if Afghanistan or Iraq were to ask this question? Who would they determine the terrorist is, really?
Perhaps the United States.
Our commitment to Bush's foreign policy and rejection of international law has set us up for increasingly contradictory and complicated lawmaking- and has made our country quite officially a hypocrisy and a contradiction in terms. Our unilateral action creates a self-perpetuation/self fulfilling prophecy of terrorist activity the world over.
Terrorist activity in other countries is treated as a crime: Bush over-reacted to the events of 9/11 and upended international order. The only reason his actions have been allowed in the international community (with a considerable amount of grimacing) is that it is we- the United States- are the single greatest military power of our time. No one can enforce international law against us but ourselves.
So, back to HR. 1540. This bill actually limits the scope of persons who can be detained. It attempts to define who are to be considered "enemy combatants" and where those combatants can be held, by informing us that they are required to be handled just like any POW- held "... under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force." Also, it implies that US Citizens must still be charged and tried in the civilian criminal court system.
I think Senator John McCain, a former POW and torture victim, supports this bill because it requires persons detained under suspicion of being terrorists to be handled under the law of war like any other POW-- not to be swept off to some secret CIA black-ops prison to be tortured (which has happened dozens of times since 2001). Moreover, this bill also tells us that these persons are not to be tried in criminal courts, as they are Prisoners of War.
Then, as if directly referencing those American Citizens who were held by the Bush administration under suspicion of being terrorists or as enemy combatants, the bill HR. 1540 states this:
"SEC. 1022. <<NOTE: 10 USC 801 note.>> MILITARY CUSTODY FOR FOREIGN AL-QAEDA TERRORISTS.
(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 <<NOTE: Applicability.>> requirement in paragraph (1) shall apply to any person whose detention is authorized under section 1021 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 1021(c), except that no transfer otherwise described in paragraph (4) of that section shall be made unless consistent with the requirements of section 1028.
(4) Waiver for national security.--The President may waive the requirement of paragraph (1) if the President submits to Congress a certification in writing that such a waiver is in the national security interests 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."(Public Law 112-81 Sec. 1022.)
So US Citizens and Legal Resident Aliens are not required to be held by the military-- meaning that they can be held in civilian prisons and tried in civilian criminal courts [or, they can be held in military prisons-- they are not required to be held by the military, but if deemed "necessary" they can be, if they are dubbed "Enemy Combatants"]. The Senate Committee on Armed Services is trying to make sure that "terrorists or enemy combatants" captured on the battlefields of Iraq and Afghanistan or in other foreign countries are held as Prisoners of War and are NOT allowed to be processed under the civilian legal system of the US.
It is only based on these unconstitutional laws (the USA PATRIOT Act and the Authorization for Use of Military Force of 2001) that the offending sections of HR. 1540 and similar bills have any relevance or validity at all, but their relevance is in terms of defining (limiting) the "special" powers granted to our President in the year 2001.
Tailored Specifically to Inconvenience Pres. Obama
Why this bill is specifically designed to prevent President Obama (whose campaign promises included closing Gitmo) from moving detainees currently held at the facility in Guantanamo Bay (with added emphasis):
"SEC. 1026. 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.
(a) In General.--No amounts authorized to be appropriated or otherwise made available to the Department of Defense for fiscal year 2012 may be used to construct or modify any facility in the United States, its territories, or possessions to house any individual detained at Guantanamo for the purposes of detention or imprisonment in the custody or under the control of the Department of Defense unless authorized by Congress.
(b) Exception.--The prohibition in subsection (a) shall not apply to any modification of facilities at United States Naval Station, Guantanamo Bay, Cuba.
(c) Individual Detained at Guantanamo Defined.--In this section, the term ``individual detained at Guantanamo'' has the meaning given that term in section 1028(e)(2).
(d) Repeal of Superseded Authority.--Section 1034 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (Public Law 111-383; 124 Stat. 4353) is amended by striking subsections (a), (b), and (c)."(Sec. 1026 of Public Law 112-81)
and:
"SEC. 1027. PROHIBITION ON THE USE OF FUNDS FOR THE TRANSFER OR RELEASE OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.
None <<NOTE: Khalid Sheikh Mohammed.>> of the funds authorized to be appropriated by this Act for fiscal year 2012 may be used to transfer, release, or assist
[[Page 125 STAT. 1567]]
in the transfer or release to or within the United States, its territories, or possessions of Khalid Sheikh Mohammed or any other detainee who--
(1) is not a United States citizen or a member of the Armed Forces of the United States; and
(2) is or was held on or after January 20, 2009, at United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense."(Sec. 1027 of Public Law 112-81)
Similar sections have been added to the NDAA of 2013 (read Title X, Subtitle D).
A reassuring addition to the NDAA of 2013 is this:
"SEC. 1029. <<NOTE: 10 USC 801 note.>> RIGHTS UNAFFECTED. Nothing in the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) or the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112-81) shall be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights in a court ordained or established by or under Article III of the Constitution to any person inside the United States who would be entitled to the availability of such writ or to such rights in the absence of such laws."[a dissenting opinion to my analysis of this law can be found here]
So my personal objections to this
- I do not believe that terrorism is an act of war. It is a crime.
- I believe that a terrorist act is nothing more than a politically or religiously motivated criminal act of murder (or mass murder, or attempted murder, or kidnapping, or hostage-taking) and sometimes may include conspiracy to commit those crimes.
- I believe that if a terrorist act occurs in a war zone- it is a War Crime and the perpetrators must be held as Prisoners of War and tried before a military tribunal, as well as charged with War Crimes under International Law.
- I do not believe that an "Authorization for Use of Military Force" counts as war, as only Congress can declare war (and Congress has not declared war since WWII).
- The "War on Terror" is not really a war at all, and the legislation surrounding this crime enforcement is excessive and draconian.
- All provisions of the USA PATRIOT Act (Public Law 107-56) and all subsequent and related provisions and amendments must be repealed as they are unconstitutional.
- The Authorization for Use of Military Force of 2001 (Public Law 107-40) must be repealed, as it grants the President unbelievable power and breadth of action in a way that is also unconstitutional. The AUMF of 2001 broadly and vaguely expands the president's authority to use military force with little or no oversight and with no expiration date.
- Specific portions of this bill are intentionally designed, quite spitefully, to prevent the president from making simple policy decisions that would otherwise be well within his power and jurisdiction to make unilaterally.
- I also object to the bill on many other points, most broadly the total amount of money we're spending on defense, when some very specific no-strings-attached foreign aid programs and corporate regulations could work just as well in deterring terrorism for about 1/100th of the price and without all of the unnecessary death and dismemberment.
Go to thomas.loc.gov to search for public documents... or for current legislation with links to sending letters to your Congressional reps: www.opencongress.org - this also has a lobbyist activity tracker so you can see who is getting money in support of (or against) each bill currently being considered in Congress.
