Legal Analysis of NDAA Detention Provision

[Bartholomew Roberts]

The Volokh Conspiracy has two leading scholars on terrorism law discuss the House and Senate versions of the NDAA detention provision. It is a very good concise summary of some of the civil rights issues raised by military detention during the war on terror and how this bill might affect that:
http://volokh.com/2011/12/07/us-citi...ntion-in-ndaa/

[MTT TL]

I am curious.

How is Chesney differentiating between the Americans captured in Afghanistan attacking US forces and the ones captured attacking the Military recruiting station in Arkansas?

If they are both done at the behest of their masters in Yemen what is the difference?

[ThorInc]

The NDAA was signed into law by President Obama yesterday. It is now in effect......Happy New Year to all.

[Aguila Blanca]

Originally Posted by MTT TL

How is Chesney differentiating between the Americans captured in Afghanistan attacking US forces and the ones captured attacking the Military recruiting station in Arkansas?

First, WHAT Americans were captured in Afghanistan attacking U.S. forces? If you are thinking of that "American Taliban" kid (whose name I don't remember), he was NOT attacking Americans when he was captured. He was captured by one of the "Northern Alliance" warlords, and subsequently turned over to the Americans. The fact is, the kid never fired a shot at any Americans.

[Crazy88Fingers]

Fun Fact: the NDAA passed the Senate 93-7.

U.S. Constitution, Amendment VI:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

It seems to me that terrorists aren't much different from gang members (actually I'd be willing to wager that more Americans have been killed from gang violence than terrorism in the last ten years). They aren't affiliated with any nation, nor do they belong to any standing army. They are criminals, perpetrating heinous crimes, and should be dealt with as such.

[MTT TL]

First, WHAT Americans were captured in Afghanistan attacking U.S. forces?

You mean who?

Yassar Hamadi among others. Quite a few have been captured in Pakistan and turned over to USFs.

[ThorInc]

Not sure how that limits the NDAA on American soil? How are the distinctions made ?

[Aguila Blanca]

Originally Posted by MTT TL

Yassar Hamadi among others. Quite a few have been captured in Pakistan and turned over to USFs.

???

In response to a question of what Americans have been captured in Afghanistan attacking American forces (which is what you originally asked about), you use as an example someone captured in Pakistan, where there are NO American forces operating?

And how does someone captured and turned over to American forces equated to someone captured in the act of attacking American forces? I think you're confusing/conflating multiple scenarios.

As to Yassar Hamdi, (not Hamadi), he was not fighting American forces when he was captured. Like the "American Taliban" kid, Hamdi was fighting against forces of one of the Northern Alliance warlords. In other words, he was with one Afghani faction, fighting another Afghani faction. The fact that the U.S. happened to favor the faction he was fighting against does not equate to his attacking American forces.

[MTT TL]

You do understand that US Special Operation Forces were working directly and openly imbedded with the Northern Alliance? This is not exactly a big secret.

Pakistan, where there are NO American forces operating?

You do understand that until just recently nearly all NATO logistics flowed through Pakistan? There have been multiple attacks against convoys there.

You seem not to understand these things.

[Aguila Blanca]

You seem not to understand these things.

What I understand is the United States of America is based on a Constitution, and I worry greatly about anything that runs contrary to said Constitution.

NATO does not automatically equate to "US forces." We're doing a lot more today with "contractors" than we did during Vietnam, when I served. This is not the time or place to discuss whether or not that's good or bad, but mercenaries are not "US forces."

And if some zealot headed off to Afghanistan while the Taliban were in power and allied himself with them, and he's fighting with them against Afghani warlords in a civil war -- how is it fair to expect him to know there might be American "advisors" embedded with the Northern Alliance warlords?

We are rushing headlong into situations that do not bode well for our Constitutional republic. The truth is, we have not been at WAR (legally, with a declaration of war by the Congress -- which is the ONLY way our Constitution allows for us to go to war) since WW2. Since then we have had so-called "peacekeeping actions" in Vietnam and Korea, but both of those involved uniformed soldiers of the other side as opponents (plus, of course, the NVA).

Now we have this nebulous "war on terror," and it has the politicians so spooked that they want to play we're at war against a concept. There is no country currently at war with the United States. Terrorists are not "unlawful combatants," they are terrorists. Why was the unibomber treated as a "criminal" but some other dude playing with bombs gets labeled an "unlawful combatant" and whisked away to perpetual military detention with no charges ever filed -- just because he's a Moslem?

Either we are a nation of laws -- or the United States of America was a noble experiment that has run its course, and failed. If we are a nation of laws, then we should not be playing around with the kinds of detentions that we castigate other countries for engaging in.

[MTT TL]

NATO does not automatically equate to "US forces."

An attack on one is an attack on all according to the treaty. Certainly when participating in a united mission. Besides there are forces operating in Pakistan. Who killed UBL? The Green Bay Packers?

but mercenaries are not "US forces."

Even if I buy your argument (it runs contrary to the international conventions and the historical laws of warfare so I do not) The supplies they are blowing up are US military property. So yes attacks in Pakistan are attack on USFs.

how is it fair to expect him to know there might be American "advisers" embedded with the Northern Alliance warlords?

He did know. At least he said he was told. Well before he ran into them on the battlefield.

Either we are a nation of laws -- our the United States of America was a noble experiment that has run its course, and failed.

If that is true it failed a long time ago. Like right after it was created. Civil rights violations were built into the constitution and it has taken a long time to get to where we are today, which is much better.


Personally I don't agree with the detentions. My expectation is that they will be used under the most dire of circumstances if at all. Then gotten rid of as a bad idea. I think mass detentions would lead to civil unrest.

[Tom Servo]

[Controversial comments about the Packers removed. Go Packers!]

What strikes me as grimly ironic is that Carolyn McCarthy did much of the footwork to ameliorate the damage this would have done to the 4th Amendment, while most "conservatives" voted for it.

[Glenn E. Meyer]

Attend me! This turned into a disgrace. There are consequences.

Cease and desist singling out a group that because of beliefs - you think X,Y or Z.

[MTT TL]

.. indeed.

That would have served the argument better remaining up.

[thallub]

Just read the Counter-terrorism portion of the enrolled NDAA passed by the US house and senate. Don't see what all the fuss is about. Section 1021 on US citizens and legal aliens:

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.

Its in subtitle D sections 1021-1034.

http://www.gpo.gov/fdsys/pkg/BILLS-1...2hr1540enr.pdf

[ThorInc]

What does any of this to do with limiting and removing the rights of taxpaying American citizens?

[MTT TL]

Don't see what all the fuss is about.

Didn't read the link did you?

[thallub]

Didn't read the link did you?

IMO: Read part of it. It's hardly a rational legal authority.

[TXAZ]

Whether or not the president / 'the government' can constitutionally imprison US citizens without trial, assassinate foreign heads of states and leaders (even though there is a Presidential Directive to the contrary), start a war without Congressional approval, or engage in other highly questionable practices, seems to make many of the constitutional scholars nervous about the legal precedents being set. As one scholarly debater summed it up, "If the government isn't going to follow the law, why should I".

Seems like the first step to anarchy if societies start ignoring laws in specific, then in general...

[MTT TL]

How about a college Law Professor?

http://verdict.justia.com/2012/01/02/the-ndaa-explained

Excerpt:

Words have meaning, but they can also be taken out of context. The provision that Thornberry cites only exempts American citizens from being covered by section 1022 of the new law, which creates a new presumption of military detention for certain terrorist suspects. Notably, section 1022(b)(1) does not exempt American citizens from the more important provisions in section 1021, which allow the military detention of broad categories of terrorist suspects. It does not, therefore, improve on the status quo by extending any new protections to Americans.

Moreover, the specific exemption for American citizens in section 1022 could be understood as suggesting, by negative implication, that American citizens are covered by section 1021. Potentially reinforcing this view is the fact that an effort to amend section 1021 to exempt citizens failed in the Senate. If, in the future, judges decide to refer to the statute’s legislative history to help ascertain its scope, the lack of such an exemption may be determinative.

Another provision that Thornberry cites is equally unhelpful to his claim. Subsection 1021(e) says that section 1021 does not change existing law “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.”

On its face, it should be obvious that this provision does not specifically protect citizens; in fact, the reference to citizens is entirely superfluous. (The provision might just as well have specified “redheads, AARP members, and any other persons who are captured or arrested in the United States.” If it had not been written with future political maneuvering in mind, it would simply have referred to “the detention of persons who are captured or arrested in the United States.”)

[thallub]

Joanne Mariner is a professor at Hunter college.

http://verdict.justia.com/author/mariner

Joanne Mariner is the director of Hunter College’s Human Rights Program. Before joining Hunter in 2011, she worked at Human Rights Watch, most recently as the director of the organization’s Terrorism and Counterterrorism Program. She has investigated human rights abuses around the globe, focusing in recent years on counterterrorism laws and policies, indefinite detention, the criminal prosecution of suspected terrorists, and the nexus between counterterrorism and the law of armed conflict.

..........................................................................................................

Mariner is a member of the Council on Foreign Relations and belongs to the board of advisors of the International Justice Resource Center and the International Centre for Counter-Terrorism - The Hague. She has taught as an adjunct professor at Georgetown Law Center and American University’s Washington College of Law. In 2005, she received the American Society of International Law's Distinguished Women in International Law award.

In a word Mariner is your average blissninnie.

[MTT TL]

In a word Mariner is your average ultra-liberal blissninnie.

[Glenn E. Meyer]

This is not worth refereeing anymore. Since it keeps diverting to invective and responses to such.

CLOSED.