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).
H. R. 1540—266
SEC. 1022. 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 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.
(c) IMPLEMENTATION PROCEDURES.—
(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 which is ongoing
at the time the determination is made and does not require
the interruption of any such ongoing interrogation.
H. R. 1540—267
(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) AUTHORITIES.—Nothing in this section shall be construed
to affect the existing criminal enforcement and national security
authorities of the Federal Bureau of Investigation or any other
domestic law enforcement agency with regard to a covered person,
regardless whether such covered person is held in military custody.
(e) 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.
| Maine Joins the Fight Against NDAA; Other State Efforts Continue | | Print | |
| Written by Joe Wolverton, II |
| Sunday, 25 March 2012 16:00 |
 Last week lawmakers in the state of Maine enlisted in the fight against federal tyranny and in defense of constitutional liberty. Specifically, the state legislature approved HP 1397, a measure addressed to the President of the United States and intended to remind him of the Fourth Amendment protections against unreasonable searches and seizures, the Sixth Amendment’s guarantee of the right to counsel, and the age-old concepts of due process and habeas corpus. By now, readers should be familiar with the purpose behind passage of this joint resolution — the National Defense Authorization Act of 2012. Specifically, Sections 1021 and 1022 of the NDAA, which endow President Obama with the power to deploy the American armed forces to arrest and indefinitely detain American citizens he suspects of posing a threat to national security. Here are the relevant provisions of the Maine resolution: WHEREAS, the United States Congress passed the National Defense Authorization Act for fiscal year 2012 on December 15, 2011, and the President of the United States signed the Act into law on December 31, 2011; and WHEREAS, the Act directs the Armed Forces of the United States to detain any person who is captured in the course of hostilities authorized by the federal Authorization for Use of Military Force Against Terrorists and who is determined 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 to have participated in the course of planning or carrying out an attack against the United States or its coalition partners; and WHEREAS, the disagreements and uncertainty in interpretation of the law has raised significant concerns about due process for United States citizens; and WHEREAS, the prospect of the indefinite detention of United States citizens violates, without due process of law, basic rights enshrined in the United States Constitution, such as the right to seek a writ of habeas corpus, the right to petition for a redress of grievances, the right to be free from unreasonable searches and seizures and the right to counsel; and WHEREAS, it is crucial to national security that funding contained in the National Defense Authorization Act for the Department of Defense and members of the military and their dependents remain intact; and WHEREAS, the members of this Legislature have taken an oath to uphold the United States Constitution and the Constitution of Maine; now, therefore, be it RESOLVED: That We, your Memorialists, most respectfully urge and request that the President of the United States and the United States Congress amend the National Defense Authorization Act to clarify that any provisions contained within will not deprive United States citizens of the rights of due process... The chief sponsor of this joint resolution is state Representative Richard Cebra (R-Naples). When asked by The New American what motivated him to memorialize his opposition to the NDAA, Cebra replied, “I believe it is one of the state legislature’s functional, foundational pillars to constantly keep the federal government in check and to respond when her citizens’ constitutional rights are threatened.” In a story published by the Tenth Amendment Center, the director of the Maine Tenth Amendment Center explained that “the primary opposition to the resolution came not from those opposed to challenging NDAA detention provisions, but from lawmakers wanting to expand the language to cover all ‘persons,’ not just citizens.” On March 20, the state Senate of Maine followed the example of their colleagues in the other house of the legislature and adopted HP 1397. In order to more completely understand the importance of the stance taken by the state legislature of Maine, as well as the other measures that have been put forward by other state and local governments, it is important to have a cursory understanding of the principle of nullification, as well as of the shocking unconstitutional provisions of the NDAA. Simply stated, nullification is the principle that each state retains the right to nullify, or invalidate, any federal law that a state deems unconstitutional. Nullification is founded on the assertion that the sovereign states formed the union, and as creators of the compact, they hold ultimate authority as to the limits of the power of the central government to enact laws that are applicable to the states and the citizens thereof. As this explanation reveals, state Representative Cebra’s resolution is not strictly a nullification of the NDAA since it's nonbinding. It is, nonetheless, a worthwhile and praiseworthy reminder to the President that the states are aware of these federal usurpations and will not idly permit their sovereignty to be eviscerated without opposition. As for the NDAA, on December 31, 2011, with the President's signing of that law, the writ of habeas corpus — a civil right so fundamental to Anglo-American common law history that it predates the Magna Carta — is voidable upon the command of the President of the United States. (A writ of habeas corpus is a judicial mandate requiring that prisoners be brought before a judge or into court to determine whether the government has the right to continue detaining them.) The Sixth Amendment right to counsel is also revocable at the President's will. So many of the absolute powers provided to the President in the over-500-page NDAA are an affront to liberty. For example, Section 1021 unlawfully places the American military at the disposal of the President for the apprehension, arrest, and detention of those suspected of posing a danger to the "homeland" — without their being informed of any criminal charges, without a trial on the merits of those charges, and without a scintilla of the due process safeguards protected by the Constitution of the United States. In the language of this legislation, these people are called "covered persons." Regardless of promises to the contrary, the language of the NDAA places every citizen of the United States within the universe of potential “covered persons.” Any American could one day find himself or herself branded a “belligerent” and thus subject to the complete confiscation of his or her constitutional civil liberties and nearly never-ending incarceration in a military prison. As has been chronicled by The New American, Maine has become the 11th state to consider some type of measure calling upon to Congress to repeal the constitutionally offensive provisions of the NDAA that provide for the arrest, interrogation, and indefinite detention of American citizens. In other news regarding state efforts to thwart the NDAA’s indefinite detention provisions, Utah state Senator Todd Weiler reports to The New American that both houses of the state legislature unanimously passed the resolution he sponsored and that Governor Gary Herbert has signaled his intent to sign SCR 11, adding his name to the names of Utah’s legislators in openly expressing their defiance of the dictatorial decrees of the unfettered federal government. In the state of Rhode Island where state Representative Dan Gordon has sponsored an anti-NDAA bill, Gordon informed The New American last week that he had a meeting with the committee chairman and leadership on the bill. If they approve the measure, it will be sent to the floor of the House for deliberation by the whole body. Finally, state Senator Brian Nieves of Missouri reports to The New American that his resolution, SJR 45, has been heard and voted out of committee and now he is waiting for floor time for consideration of the bill. As more state legislators join the fray and commit to assuming their rightful role as the “guardians of liberty,” we will bring them to the attention of our readers. |
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