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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,
en******, 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.
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,
en******, 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.
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