Print

Please login or register.
1 Hour 1 Day 1 Week 1 Month Forever
Login with username, password and session length

[palsch]

Maybe look at current detention authority compared to the bill's authority?

Current;

    persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces 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 hostilities, in aid of such enemy armed forces.

That's the administration's extrapolation from the 2001 AUMF, largely upheld by the courts in a range of cases, with a few exceptions.

The NDAA version;

    (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.

This is functionally the same as the current policy. The most worrying part here is the 'supporters' language, which has been seen as the weakest legally and most dangerous policy-wise. Even so, the terms ("substantially support") are slightly narrower than the standard suggested by the DC circuit court (untested at the Supreme Court) of "purposefully and materially support".

The exceptions I noted above are all related to US citizen detention, where the courts have broadly held that citizens can never be denied habeas  rights. These rights may be functionally quite weak (they don't include a right to see or reveal classified information that may be the basis of detention, so functionally shutting down many cases before they can be made) and in many cases the limits and extent of the powers are untested.

The bill doesn't take any position on these undecided issues, explicitly leaving them to the courts to decide. This basically means until and unless the administration decides to hold someone in questionable enough circumstances for long enough for a case to reach the Supreme Court the exact limits aren't going to be clear. Unless, that is, congress actually keeps debating this topic and actually decides to more clearly define the detention program in the future.

So, broadly, business as usual. Just a bit more in the sunlight than it was a month or two ago.

[Montague]

"terrorist" is used, and can be used, to define a great deal of people. Say, those protesters are speaking out against the government and raising potentially bad points? Well, they're terrorizing US citizens, and can be detained indefinitely.

The military has never had authority on US soil, except for US military bases. The Uniform Code of Military Justice (UCMJ) should only apply to soldiers, not private citizens. Hell, if we go by the UCMJ, no one is allowed to speak against a government official.

Freedom of speech is one of the most important rights in this country, even if people say stupid, bigoted, even hateful words. This indirectly allows the US government to control speech of US citizens by declaring the United States a war zone.

No, the wording is very clear on the 'covered persons' section. It says persons determined to be a member of Al-Quada or the Taliban or significantly aided them. It doesn't say "suspected" or even "terrorist" or "extremist" anywhere in there. It doesn't say anything about sympathizers or anything. Also, the National Guard has always been able to arrest people, they are given arrest powers anytime their state govenor says so for emergencies and civil unrest and insurrections and whatnot. Also, US citizens cannot be held in military detention or be subject to any sort of military justice unless they are in fact a servicemember.

This law really doesn't apply to protestors shouting vaugely seditious things, socialist book clubs, Wahhabist knitting circles, or even run-of-the-mill extremist groups like private militias and people from Montana. Other acts prior to this one already cover them to some extent, though they require warrants and justifible causes to go after groups like these.

The only mechanism for abuse I see when the President or Secretary of defense waives the rights of an individual US-citizen terrorist type and goes and arrests or kills them, like they did with Anwar al-Awlaki. Although frankly, Anwar al-Awlaki probably got what he deserved.

Basically, all this bill does is officially codify in law, what the business as usual doctrine has been when dealing with Al-quada terrorists and unlawful combatants. Sending them to Gitmo indefinately and whatnot. It really isn't that threatening unless you are plotting to bomb something with your Al-Quada friends, in which case its only as bad as the unofficial doctrines before the bill anyways.

[DJ]

Determined by whom? From what I gather, not by a court of law.

[PTTG??]

Determined is not a legal word. If they say that they think you're a terrorist, there is no trial to determine if you are or are not.

[GlyphGryph]

Basically, all this bill does is officially codify in law, what the business as usual doctrine has been

And I think this is the biggest problem. It changed it from "wrong to do but done anyways by those abusing their power" to "the right thing to do".

[palsch]

Determined by whom? From what I gather, not by a court of law.

This is something not fully defined, but part of the process has been both by the Obama administration and in this bill. Mostly it's a review process in place, periodically bringing detainees in front of a panel to review the reasons and circumstances of their detention. That was one of the administration's (and civil/human right's) successes.

I'll dig up more when I'm not on my phone in a pub.

[PTTG??]

You mean you'd get to have occasional show trials?

[dragonshardz]

The way it works nowadays in the USA is that "terrorist" is a Word Of Power. You say it and all the rules go out the window. So if, say, the Occupy movement was "determined*" to be a terrorist organization...

Well, you can probably figure that one out.

*That is, someone arbitrarily decides. No trials, no review, just "Oh yes they are terrorists and shell be treated as such."

[SalmonGod]

9 (2) A person who was a part of or substantially
10 supported al-Qaeda, the Taliban, or associated forces
11 that are engaged in hostilities against the United
12 States or its coalition partners, including any person
13 who has committed a belligerent act or has directly
14 supported such hostilities in aid of such enemy
15 forces.

This is the part that concerns me.  Bolded text strikes me as incredibly vague, and reminiscent of the patriot act, which has been widely abused against U.S. citizens.  I'm not as alarmist as most people on this issue, but I do think it's bad.

[Pnx]

9 (2) A person who was a part of or substantially
10 supported al-Qaeda, the Taliban, or associated forces
11 that are engaged in hostilities against the United
12 States or its coalition partners, including any person
13 who has committed a belligerent act or has directly
14 supported such hostilities in aid of such enemy
15 forces.

Doesn't that include the CIA?

[SalmonGod]

9 (2) A person who was a part of or substantially
10 supported al-Qaeda, the Taliban, or associated forces
11 that are engaged in hostilities against the United
12 States or its coalition partners, including any person
13 who has committed a belligerent act or has directly
14 supported such hostilities in aid of such enemy
15 forces.

Doesn't that include the CIA?

It should... nice catch.

[palsch]

From the bill, section 1036, the administration must submit full procedure for determining the status of captives within 90 days of the bill passing. So we should have the full procedure in a couple of months.

But there are two conditions imposed by the bill; presided over by a military judge and access to military council.

This review is in addition to any habeas rights, which apply in virtually all circumstances other than battlefield captures.

This is the part that concerns me.  Bolded text strikes me as incredibly vague, and reminiscent of the patriot act, which has been widely abused against U.S. citizens.  I'm not as alarmist as most people on this issue, but I do think it's bad.

Legally speaking those are narrower terms than have been used elsewhere. The previous language in the Military Commissions Act was;

    engaged in hostilities or who has purposefully and materially supported hostilities against the United States.

'Purposeful and material' support is a far lower standard than 'directly supported'. Since the 2006 MCA there has been a substantial amount of debate and legal definition around these terms. It's not as vague and general as it looks at first glance.

[DJ]

Well I dunno what will be added in the future, but as it is right now there's more than enough wiggle room to indefinitely arrest anyone you want without a trial.

[palsch]

You mean like in 2002?

Seriously, the really interesting stuff here is the AUMF (2001), MCAs (2006 and 2009) and all the relevant case law. Particularly Hamdi (which granted a trial to any detained citizens).

[ECrownofFire]

The way it works nowadays in the USA is that "terrorist" is a Word Of Power. You say it and all the rules go out the window. So if, say, the Occupy movement was "determined*" to be a terrorist organization...

Well, you can probably figure that one out.

*That is, someone arbitrarily decides. No trials, no review, just "Oh yes they are terrorists and shell be treated as such."

The Occupy movement is already a terrorist organization according to the London police. Won't be long before it reaches the US, if it hasn't already.