The National Defense Authorization Act (Sections 1021 and 1022)–Time To Read Between The Lines!

Posted by Steve Baysinger

The following are Sections 1021 and 1022 of the National Defense Authorization Act (NDAA) of 2012. Tenth Amendment Center-Texas (TAC-T) comments are in bold italics. Readers are highly encouraged to provide comments.  –SMB

Subtitle D—Counterterrorism

 

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.

 

(Tenth Amendment Center-Texas (TAC-T): “Covered persons”?? No SPECIFIC exclusion of US citizens mentioned anywhere in Section 1021 (or 1022 for that matter!))

 

(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. (TAC-T: “any person,” “belligerent act,” “hostilities”: all terms are (1) NOT DEFINED anywhere and; (2) extremely vague and ambiguous)

(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. (TAC-T: trying “covered persons “indefinitely and with the potential of trail, outside the continental United States (CONUS)??!!!!  This paragraph infers “covered persons” are to be detained “under the law of war.” Lest we forget, war was NEVER DECLARED BY THE CONGRESS OF THE UNITED STATES!’; “without trial”—clearly in violation of the Fifth and Sixth Amendments to the US Constitution.)

(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. (TAC-T: might this mean UN international court? If not, why not simply say “US Federal Court”??)

(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. (TAC-T: this is simply NOT TRUE! The President of the United States (POTUS) authority has already been greatly expanded via The Patriot Act (which, by the way, is currently superseding the Bill of Rights!))

(e) AUTHORITIES.—Nothing in this section shall be construed to affect existing law or authorities relating to the detention of UnitedvStates 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  (TAC-T: if the definition of “covered
persons” was fixed and definitive, why is the Secretary of Defense (SECDEF) charged with regularly briefing the Congress on, what appears to be, an arbitrary definition of “covered persons”? The inference is the definition of “covered persons” is a variable than can be changed by POTUS (as evidenced in Section 1022, paragraph 4 (below)).

 

 

SEC. 1022. MILITARY CUSTODY FOR FOREIGN AL-QAEDA TERRORISTS. (TAC-T: NOWHERE in Sections 1021 or 1022 of the National Defense Authorization Act of 2012 does it state something like “Sections 1021 and 1022 ARE NOT APPLICABLE TO UNITED STATES CITIZENS.” NO WHERE!!)

 

(a) CUSTODY PENDING DISPOSITION UNDER LAW OF WAR.—

(1) IN GENERAL.—Except as provided in paragraph (4), (TAC-T: Paragraph 4 of Section 1022 gives POTUS the sole authority to waive, alter or expand the definition of “covered persons”! See below.) 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. (TAC-T: war was NEVER DECLARED by the Congress of the United States.)

(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 sectionshall 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. (TAC-T: all power has been placed into the hands of the POTUS and is NOT SHARED with anyone to include the Congress, Secretary of State, Secretary of Defense, etc. NO POWER IS SHARED here in the decision making process. The POTUS must only submit a note on a paper napkin to Congress saying he (or she) is changing the rules of engagement and it’s done—PERIOD!)

(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. (TAC-T: why does this not read: “The requirement to detain a person in military custody…DOES NOT NOR SHALL NOT APPLY OR EXTEND TO ANY UNITED STATES CITIZEN…”??!!! A requirement to detain implies a choice—to detain or not to detain.)

(c) IMPLEMENTATION PROCEDURES.—

(1) IN GENERAL.—Not later than 60 days after thedate 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 whoremains 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.

 

Steve Baysinger is the State Chapter Coordinator for the Texas Tenth Amendment Center.

This entry was posted on Monday, April 2nd, 2012 at 1:33 am. It is filed under Uncategorized and tagged with National Defense Authorization Act, NDAA, Section 1021, Section 1022. You can follow any responses to this entry through the RSS 2.0 feed.