by Scott Creighton
“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.” section 1031 NDAA 2012 page 360
“The requirement to detain a person in military custody under this section does not extend to citizens of the United States.” section 1032 NDAA 2012 page 362
“…modifying or expanding the authority of the Executive Branch to carry out detention and prosecution of covered persons.” Udall amendment replacing above language
All across the “internets” liberal and libertarians alike are screaming about sections 1031 and 1032 of the National Defense Authorization Act of 2012 (pdf). They are breathlessly claiming they it will give the military the ability to arrest and indefinitely detain U.S. citizens under the law of war clause. These claims, this internet panic, is based ENTIRELY on an article from the ACLU’s Chris Anders which wrongly makes the claim and then strangely suggests that we all get behind Mark Udall’s proposed amendment to the bill.
In Mr. Anders’ article, he makes the mistaken claim right in the title; “Senators Demand the Military Lock Up American Citizens in a “Battlefield” They Define as Being Right Outside Your Window“
First thing to notice about Mr. Anders’ article is that he makes absolutely no attempt to link the readers to the actual text of the bill which he bases his panic inducing headline. Instead what he does is repeatedly link the reader to his “oppose section 1031 and 1032 of the NDAA” action page. I count 9 links to his action page which are cleverly disguised as “Udall Amendment” and other things that would make the reader think would be links to things which support his argument, but they don’t. Nowhere in the article does Mr. Anders supply a link to the Udall amendment which he expects you to support, sight unseen I suppose.
Why wouldn’t Mr. Anders of the ACLU want to link his readers to the actual text of S. 1867? Why wouldn’t he simply copy and past section 1032, the section which supposedly gives the military the right to arrest and detain U.S. citizens, so that his readers could read the actual text of the bill and make an informed decision for themselves? Why doesn’t he provide a link to the Udall amendment? Judge for yourselves….
Senate Bill 1867, the Defense Authorization Act for Fiscal Year 2012 page 361 (emphasis added)
3
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.
(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.
(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.
That is why Mr. Anders of the ACLU does NOT provide a single link to the actual text of the bill, because it clearly states that section 1032 does NOT extend to citizens of the United States. It could not be clearer in that regard but apparently Mr. Anders either can’t read or is deliberately misleading a large number of people about this section of the bill.
Why would Mr. Anders do that?
As I pointed out yesterday and as Carl Levin wrote about in his letter to congress a week ago, the president and his senior advisers will VETO the bill as written because he thinks it will unduly inhibit his ability to fight the fraudulent “Global War on Terror”
Turns out that is exactly the argument that Mark Udell makes when he talks about replacing section 1032 with his amendment, the amendment that Mr. Anders seems to want us to call our senators in support of.
“Mr. President, I filed an amendment, 1107, that would take a look at what is proposed in the NDAA. Now, we have a solemn obligation, Mr. President, to pass a National Defense Authorization Act, but we also have a solemn obligation to make sure that those who are fighting the war on terror have the best, most flexible, most powerful tools possible. And I have to say again – and I will say it more than two times in my remarks – that I’m worried that these changes that we’re about to push through would actually hurt our national security…
… these provisions disrupt the executive branch’s capacity to enforce the law and impose unwise and unwarranted restrictions on our ability to aggressively combat international terrorism. In so doing, they inject legal uncertainty and ambiguity that may only complicate the military’s operations and practices.
Now, Mr. President, I’m not the only one who has serious concerns. The Secretary of Defense has urged us to oppose these new provisions, both the chairman of the intelligence and judiciary committee strongly oppose them, and the president’s team is recommending a veto. These are people whose opinions should be carefully considered before we put these new proposals into our legal framework. In the statement of administration policy, the White House states – quote – “we have spent 10 years since September 11, 2001, breaking down the walls between intelligence, military and law enforcement professionals. Congress should not now rebuild those walls and unnecessarily make the job of preventing terrorist attacks more difficult.“
Those are striking words, Mr. President, that should give us all pause as we face – it seems to me – a bit of a rush to submit these untested and legally controversial restrictions on our ability to prosecute terrorists. Mr. President, I would ask unanimous consent to place the entire statement of administration policy in the record.” Mark Udall, floor of the Senate
So what is this Udall amendment that the ACLU and apparently President Obama and ex-CIA chief Leon Pannetta want us to accept? What does it do?
Quite simply, the Udall amendment will remove the wording of section 1032 which clearly states that it does not apply to U.S. citizens, and in it’s place substitute language which calls for the head of the Department of Homeland Security, Hillary Clinton, Leon Pannetta, and Eric Holder to get together and craft legislation, on their own, to submit back to congress which effectively does the same thing that section 1032 does, but seemingly may or may not actually apply to U.S. citizens.
That’s right… Udall’s proposal suggests letting globalist Hillary Clinton and her puppets rewrite something akin to the John Yoo torture memos. As written, section 1031 specifically states that it does NOT extend the powers of the executive branch under current interpretations of the war powers act whereas Mr. Udall’s proposed amendment clearly DOES provide for that end result.
That’s why Mr. Anders doesn’t supply a link to the text of that legislation either.
(a) In General.–Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall, in consultation with appropriate officials in the Executive Office of the President, the Director of National Intelligence, the Secretary of State, the Secretary of Homeland Security, and the Attorney General, submit to the appropriate committees of Congress a report setting forth the following:
(1) A statement of the position of the Executive Branch on the appropriate role for the Armed Forces of the United States in the detention and prosecution of covered persons (as defined in subsection (b)).
(2) A statement and assessment of the legal authority asserted by the Executive Branch for such detention and prosecution.
(3) A statement of any existing deficiencies or anticipated deficiencies in the legal authority for such detention and prosecution.
(c) Congressional Action.–Each of the appropriate committees of Congress may, not later than 45 days after receipt of the report required by subsection (a), hold a hearing on the report, and shall, within 45 days of such hearings, report to Congress legislation, if such committee determines legislation is appropriate and advisable, modifying or expanding the authority of the Executive Branch to carry out detention and prosecution of covered persons.
The Udall amendment which we are being asked to support by Mr. Anders of the ACLU would actually provide the opportunity for the expansion of presidential authority to perhaps include U.S. citizens being detained and arrested by the military. It calls for a group of globalist puppets to put together a proposal and to show the legal authority by which they base their claim for expanded powers. This is why it will be supported by the Obama administration.
It should not be supported by us.
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