2012 National Defence Authorization Act

[squealpiggy]

In the conspiracy theorist thread there is a discussion about the 2012 National Defence Authorization Act and section 1021. In particular concerns that it may be unconstitutional and claims that it would be used against "protesters" in the United States. I think that while some concerns are valid, this "worst case scenario" approach is far fetched. At worst it segues directly into lunatic conspiracy theories such as FEMA camps and depopulation claims.

To be entirely clear, I have posted the full text of Section 1021 below:

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).

Source

As you can see the legislation is an affirmation of powers enacted in 2001 and refers specifically to those involved in the current conflict. It allows the military to indefinitely detain "enemy combatants" until the end of hostilities. This would be broadly (but not exactly) similar to provisions for POWs under the Geneva Convention, but unlike conflicts covered therein today's conflict is not one of uniformed militaries. It's an attempt, quite clearly, to provide the protections of being able to detain enemies as afforded in wartime under the Geneva Convention and to apply them to a war fought for ideological and not nationalistic aims.

Where I have a huge issue, and where I think Obama's broken promise about closing Camp X-Ray is problematic, is that the new definition of "enemy combatants" or "unlawful combatants" puts them in a legal vacuum that can result, and has resulted in human rights abuses. Of course there is a sense of trying to deal with the complexity of a conflict in which you train a notional ally and they use this training and their cover as a trainee to murder a bunch of your soldiers. This needs to be worked out, but denying legal protections to these enemies is not the way to go about it.

[Mannie Phresh]

The vague wording in this section and the administrations hard fighting to maintain that vague wording is what is frightening. Judge Katherine Forrest's ruling was extremely justified as that hazy wording could lead to indefinite detention of American citizens who exercised their right to protest. ''including any person who has committed a belligerent act or
has directly supported such hostilities in aid of such enemy
forces.'' Belligerent act? Like criticizing the ongoing wars in the middle east?

[arraamis]

Originally Posted by Mannie Phresh

The vague wording in this section and the administrations hard fighting to maintain that vague wording is what is frightening. Judge Katherine Forrest's ruling was extremely justified as that hazy wording could lead to indefinite detention of American citizens who exercised their right to protest. ''including any person who has committed a belligerent act or
has directly supported such hostilities in aid of such enemy
forces.'' Belligerent act? Like criticizing the ongoing wars in the middle east?

September 14, 2012: The Obama Administration is appealing the ruling.

"Within 24 hours of a historic court ruling that struck down the indefinite detention provision of the National Defense Authorization Act, the Obama administration has appealed the ruling, emphasizing once again how the White House – while claiming to be against the measure – has aggressively pushed for it at every turn."


http://www.whitehouse.gov/the-press-...sident-hr-1540
Statement by the President on H.R. 1540

Today I have signed into law H.R. 1540, the "National Defense Authorization Act for Fiscal Year 2012." I have signed the Act chiefly because it authorizes funding for the defense of the United States and its interests abroad, crucial services for service members and their families, and vital national security programs that must be renewed. In hundreds of separate sections totaling over 500 pages, the Act also contains critical Administration initiatives to control the spiraling health care costs of the Department of Defense (DoD), to develop counterterrorism initiatives abroad, to build the security capacity of key partners, to modernize the force, and to boost the efficiency and effectiveness of military operations worldwide.

The fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists. Over the last several years, my Administration has developed an effective, sustainable framework for the detention, interrogation and trial of suspected terrorists that allows us to maximize both our ability to collect intelligence and to incapacitate dangerous individuals in rapidly developing situations, and the results we have achieved are undeniable. Our success against al-Qa'ida and its affiliates and adherents has derived in significant measure from providing our counterterrorism professionals with the clarity and flexibility they need to adapt to changing circumstances and to utilize whichever authorities best protect the American people, and our accomplishments have respected the values that make our country an example for the world.

[SoggyLungs]

section 1021

(b)
(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 part is not limited to terrorists...read it carefully and how they use "OR" not "AND" but "OR" and the words "associated forces" and "substantially supported". You can read that part like this:

A person who was a part of or substantially supported "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.

so if someones supporting say wikileaks or someone that openly is against what the government is doing whether it be passing more ****ty bills or whatever and wants to organize protests, etc. can be considered hostile behavior towards the government/supporting hostile behaviour against the government, no? so then under that part alone, the government if they wanted could indefinitely detain those people involved.

also part (d) is a complete contradiction...by adding in terms like "asociated forces" and "substantially supported" it does seem to want to expand the scope of the authorization...

(d) 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.

[squealpiggy]

Originally Posted by Mannie Phresh

The vague wording in this section and the administrations hard fighting to maintain that vague wording is what is frightening. Judge Katherine Forrest's ruling was extremely justified as that hazy wording could lead to indefinite detention of American citizens who exercised their right to protest. ''including any person who has committed a belligerent act or
has directly supported such hostilities in aid of such enemy
forces.'' Belligerent act? Like criticizing the ongoing wars in the middle east?

That would be stretching the definition almost to breaking point. There's a lot of distance between "criticizing the ongoing wars in the Middle East" and "substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners". I think the key word is "substantially". You could criticize the war, you could even say you supported, in spirit, the Taliban or whomever killing US soldiers. A lot of people do say that and are subject to little more than anger. In this case "substantially" refers to committing belligerent acts, financing belligerent acts, providing material support etc. It means that if you're raising funds or sending money to the Taliban or al-Qaeda you might be detained under this ruling in the same way that someone funding the Nazi party in 1942 could find themselves detained.

I don't find anything objectionable about being able to arrest someone who is financing terrorists.

As a side note it's interesting that the US enacted this sort of legislation following them becoming victim to a major terrorist act and campaign while turning a blind eye to people funding the IRA throughout the 70s and 80s.

Originally Posted by arraamis

September 14, 2012: The Obama Administration is appealing the ruling.

"Within 24 hours of a historic court ruling that struck down the indefinite detention provision of the National Defense Authorization Act, the Obama administration has appealed the ruling, emphasizing once again how the White House – while claiming to be against the measure – has aggressively pushed for it at every turn."

The Obama administration put the measure into law, why would they claim to be opposing it?

By the way a new law is overturned, the government appeal, it goes to a higher court and eventually one side gives up or the Supreme Court makes a decision. That's what happens in a democracy.

Originally Posted by SoggyLungs

section 1021

(b)
(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 part is not limited to terrorists...read it carefully and how they use "OR" not "AND" but "OR" and the words "associated forces" and "substantially supported". You can read that part like this:

A person who was a part of or substantially supported "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.

so if someones supporting say wikileaks

It would be a stretch to suggest that wikileaks was an "associated force" to the Taliban or al-Qaeda. And of course in legal context "substantial" means "of substance". Wearing an "I <3 Osama" shirt is not the same as sending him cash or buying him fertilizer.

or someone that openly is against what the government is doing whether it be passing more ****ty bills or whatever and wants to organize protests, etc. can be considered hostile behavior towards the government/supporting hostile behaviour against the government, no?

No. The NDAA explicitly mentions al-Qaeda, the Taliban and "associated forces". It also requires "substantial support". Again it would be a strangely broad reading of the act to allow for the indefinite detention of protesters unrelated to the current terrorist threat from Islamist groups.

also part (d) is a complete contradiction...by adding in terms like "asociated forces" and "substantially supported" it does seem to want to expand the scope of the authorization...

"Associated forces" is necessary, otherwise somebody could send a hundred grand to Jamaat-ul-Mujahideen Bangladesh and claim "well it wasn't for al-Qaeda".

Again it's a section of law intending to deal with the fact that the US is in a state of war not with another nation per se but with an ideology that transcends borders. In war with uniformed members of another nation's military there is a legal framework to deal with enemy belligerents. In a war with an ideology that transcends nations there isn't. This is an attempt to deal with that lack of framework, for better or worse.

[ZeeBrah]

It's already been used, so...

[arraamis]

Originally Posted by squealpiggy

The Obama administration put the measure into law, why would they claim to be opposing it?

By the way a new law is overturned, the government appeal, it goes to a higher court and eventually one side gives up or the Supreme Court makes a decision. That's what happens in a democracy.

The White House seem to be sending mixed messages about the very law they passed. I wouldn't use the term "Opposed", as a matter of fact, I didn't -- But, they clearly have reservations about certain sections.

{Posted}:

http://www.whitehouse.gov/the-press-...sident-hr-1540
Statement by the President on H.R. 1540

"The fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists."

Concluding with the following:

" My Administration has worked tirelessly to reform or remove the provisions described above in order to facilitate the enactment of this vital legislation, but certain provisions remain concerning. My Administration will aggressively seek to mitigate those concerns through the design of implementation procedures and other authorities available to me as Chief Executive and Commander in Chief, will oppose any attempt to extend or expand them in the future, and will seek the repeal of any provisions that undermine the policies and values that have guided my Administration throughout my time in office."

BARACK OBAMA

THE WHITE HOUSE,
December 31, 2011.

[SoggyLungs]

Originally Posted by squealpiggy

It would be a stretch to suggest that wikileaks was an "associated force" to the Taliban or al-Qaeda. And of course in legal context "substantial" means "of substance". Wearing an "I <3 Osama" shirt is not the same as sending him cash or buying him fertilizer.

"associated forces" is such a vague term though. I suggest you read the section carefully again...

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.

There is a difference between "and" and "or" ... if it was "and" then the person(s) would need to have been a part of or supported al-Qaeda, the Taliban, AND "associated forces" to be deemed eligible for being indefinitely detained. with the "OR" now you only need to fall into this vague category of "associated forces" and they can have you locked up indefinitely.

So you don't even have to be al-Qaeda or the Taliban or have supported them at all...you can be or support "associated forces". what do they mean "associated forces"? associated in what way? This is the problem people have with it because it doesn't state clearly what is meant by "associated forces". we can argue all day about who would fall into this category but at the end of the day the government can skew it anyway they can to indefinitely detain whomever. That is what's troubling.

And what is meant by "coalition partners"? so even protesting or showing opposition towards what the government deems as a "coalition partner" can be another reason to detain someone indefinitely?

Also, "substantial support" can mean/encompass many things...what is considered "substantial support" to the government? so showing support by attending protests and meetings with an "associated force"? sending money donations? operating a website that supports/sympathizes with an "associated force", etc...can put you at the risk of being indefinitely detained? this is the type of vague language that has a lot of people worried including a group of lawyers, plaintiffs, and civil liberties advocates who are fighting this bill and it's new vague language.

No. The NDAA explicitly mentions al-Qaeda, the Taliban and "associated forces". It also requires "substantial support". Again it would be a strangely broad reading of the act to allow for the indefinite detention of protesters unrelated to the current terrorist threat from Islamist groups.

never says "and" in section 1021...they say "OR". big difference.

Again it's a section of law intending to deal with the fact that the US is in a state of war not with another nation per se but with an ideology that transcends borders. In war with uniformed members of another nation's military there is a legal framework to deal with enemy belligerents. In a war with an ideology that transcends nations there isn't. This is an attempt to deal with that lack of framework, for better or worse.[/B]

don't you see how idiotic that is? fighting terrorism is like fighting sadness...you're not going to win. it's an endless war. Also, wasn't the terrorists attacking the US for their freedoms? looks like the terrorists are winning, no? I wonder how free and patriotic Americans feel every time a TSA agent feels the need to grope them and their kids at the airport.

[ZeeBrah]

Originally Posted by arraamis

"The fact that I support this bill as a whole does not mean I agree with everything in it."

Yes, that is exactly what it means. As President, if you don't agree with every single thing in the bill, you veto it.

[squealpiggy]

Originally Posted by SoggyLungs

"associated forces" is such a vague term though. I suggest you read the section carefully again...

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.

There is a difference between "and" and "or" ... if it was "and" then the person(s) would need to have been a part of or supported al-Qaeda, the Taliban, AND "associated forces" to be deemed eligible for being indefinitely detained. with the "OR" now you only need to fall into this vague category of "associated forces" and they can have you locked up indefinitely.

Not very many people have been part of the Taliban and al-Qaeda. The wording of the legislation clearly indicates that the "associated forces" are "associated" to al-Qaeda and/or the Taliban. It wouldn't mean that someone could be classed as a belligerent under this legislation and locked up for being in an environmental terror group or a mental animal rights nutter.

So you don't even have to be al-Qaeda or the Taliban or have supported them at all...you can be or support "associated forces". what do they mean "associated forces"? associated in what way? This is the problem people have with it because it doesn't state clearly what is meant by "associated forces". we can argue all day about who would fall into this category but at the end of the day the government can skew it anyway they can to indefinitely detain whomever. That is what's troubling.

Associated to al-Qaeda and the Taliban. You have to be trying hard to read it any other way.

And what is meant by "coalition partners"? so even protesting or showing opposition towards what the government deems as a "coalition partner" can be another reason to detain someone indefinitely?

Coalition partners refers to allied countries such as Britain in Iraq and Canada and numerous other nations in Afghanistan. And no, not protesting against them, committing belligerent acts or providing substantial support to groups acting against America's allies.

Also, "substantial support" can mean/encompass many things...what is considered "substantial support" to the government?

Support of substance.

so showing support by attending protests and meetings with an "associated force"?

No.

sending money donations?

Yes.

operating a website that supports/sympathizes with an "associated force",

Possibly. The support has to have substance. Are you operating a website that says "Hooray for al-Qaeda"? You're a cunt. But you're fine under this law. Are you operating a website that arranges meetings or provides intelligence or raises funds or recruits newcomers? Well then you're providing substantial support and yes.

etc...can put you at the risk of being indefinitely detained? this is the type of vague language that has a lot of people worried including a group of lawyers, plaintiffs, and civil liberties advocates who are fighting this bill and it's new vague language.

Do you think that new legislation to cover the status of enemy combatants in a war between ideologies rather than nations is necessary? Or would you oppose a piece of legislation that left less room for interpretation?

never says "and" in section 1021...they say "OR". big difference.

It couldn't say "and" because to do so would basically mean that nobody would be covered under the law. How about "al-Qaeda, the Taliban OR groups associated to the Taliban or al-Qaeda"? Would that be better?

don't you see how idiotic that is? fighting terrorism is like fighting sadness...you're not going to win. it's an endless war.

I lived in a country that was under terrorist threat for most of my life. In the end hostilities scaled down to the degree that they were no longer a threat, at least on the mainland. This was achieved via a number of different strategies.

I don't know what you would suggest as an alternative to fighting terrorism. I mean a government has a duty to protect its citizens.

Also, wasn't the terrorists attacking the US for their freedoms? looks like the terrorists are winning, no?

No, the terrorists were not attacking America "for their freedoms". That piece of Bushy jingoism was nonsense. They were attacking America because of US presence on what has been declared the "holy land" and US support for Israel, coupled with an ideological conflict in which the US is considered to be an almighty whore and its citizens to be decadent and evil. Oh and the terrorists are not winning. They have been systematically destroyed as a major force. The biggest danger now is not large scale coordinated attacks, but lone wolves attacking soft targets.

I wonder how free and patriotic Americans feel every time a TSA agent feels the need to grope them and their kids at the airport.

"Oh I feel so violated being groped by those rapey TSA guys because I've never been to a ball game or a nightclub". Grow up.