On December 1, the Senate passed S. 1867, the National Defense Authorization Act for Fiscal Year 2012. The last action taken as of this date was on December 14, when both houses adopted a modifying resolution which pretty much imports the language of the Senate bill into the House companion bill H.R. 1540, passed back in April.
Originally I had written that the legislative process gives Congress the chance to correct mistakes. Actually, it appears not; it justs gives a committee power to perpetuate mistakes. For instance, Section 551(d) of the bill repeals — not "amends", mind you, repeals — 10 USC 925, Article 125 of the Uniform Code of Military Justice; while the Senate intended to legalize homosexuality within the military, this provision if the bill is signed would also legalize bestiality within military jurisdiction.
Yeah, “oops”. I seriously doubt our congresspersons are that “progressive”; I honestly believe they were so excited to strike a blow for gay rights that they didn’t do their homework to see what all they were repealing. Nevertheless, now they’re stuck with the language, since BHO can’t do a line-item veto.
But of greater concern — one that’s spurred Mark Shea to new heights of purple anti-government invective — are Sections 1031 and 1032. Simply put, these two articles make the category of “people with Constitutional rights” subject to the say-so of the Executive Branch. Congress has drunk the Kool-Ade.
Let’s look at the relevant wording, shall we?
First, Section 1031 (Title X, Subtitle D) affirms that “the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force … includes the authority for the Armed Forces of the United States to detain covered persons … pending disposition under the law of war.” “Covered persons” include “A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks,” and “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.”
Under subsection (c)(1), this detention can last until the end of authorized hostilities — in other words, indefinitely.
While Section 1031 merely authorizes military detention, Section 1032 requires military detention for people 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.” Paragraph (3)of this authorization refers right back to §1031(c), limiting that subsection only by disallowing with exceptions transfer to other countries; again, the person accused under this section may be held in military custody indefinitely without trial or release.
It’s in this context that Subsection (b)(1) becomes relevant: “The requirement to detain a person in military custody under this section does not extend to citizens of the United States” [bold font mine].
The rationale powering the inclusion of these provisions is the contention that “We’re at war, dammit,” and that in war captured enemy soldiers are always held as prisoners to take them out of play. Except that in this “war” there’s no real opposing army, no navy, no air force — only harum-scarum, loosely-connected cells of fanatics with bombs and guns who merit neither the honorable name of “soldier” nor fit a meaningful definition of an “army”. They aren’t recognized by international law as representatives of any government; nor are they rebel claimants to any government under ius gentium.
This is what makes the difference: Over time the nations developed protocols by which soldiers could be distinguished from civilians, the distinction which governs how they’re treated under current rules of war. While governments have been known to support terrorist groups sub rosa, as proxies in undeclared wars, those governments have been free to dissociate themselves from terrorist groups precisely because they weren’t official representatives of those governments under international law.
Terrorists aren’t soldiers, except in their own fantasy worlds. Because of this, the distinctions that allow different treatment of soldiers and civilians don’t pertain; we only have our government’s word that they are terrorists. And that’s the disturbing fact.
The main principle underlying the Anglo-American common-law tradition, from Runnymede to Miranda v. Arizona, is that people ought not lose their lives, liberties, property or reputations solely on the say-so of the government. However, under this provision the military, as the legally-empowered representative of the government, is free to decide who fits the description of “covered persons” and hold them without trial or legal counsel for however long the “authorized hostilities” last. While they aren’t required to detain American citizens or lawful alien residents, neither are they forbidden from doing so; in law, semantics are everything.
Even if we could trust the good intentions and sincerity of the present Executive Branch, just the fact of passing this into law would make it a precedent, leaving it as a bomb to be set off later by a less well-intentioned executive. Indeed, people cite as justification for these provisions Abraham Lincoln’s suspension of habeas corpus in April 1861, which Congress reluctantly authorized after the fact, as well as the Alien and Sedition Acts of 1798. And it’s by no means certain SCOTUS would find it unconstitutional.
Fear is a bad position to legislate from. If the government has evidence that a person has committed or has conspired to commit a crime against us, then let them prove it to the people in a court of criminal law, with all the rights that pertain to due process.
Terrorists aren’t soldiers; they’re mass-murdering criminals. Let them be treated as such.
Update: January 9, 2012
Update: January 9, 2012
On December 31, Pres. Barack Hussein Obama, presumably of sound mind and body, signed into law HR 1540, which is now Public Law 112-81.
God help us all.
God help us all.
 US Senate. (14 Dec. 2011). 112 H.R. 1540. Retrieved 19 Dec. 2011 from Government Printing Office: http://www.gpo.gov/fdsys/pkg/BILLS-112hr1540pp/pdf/BILLS-112hr1540pp.pdf, pp. 169, 171.
 Ibid., pp. 418-423.
 Ibid., p. 418.
 Ibid., pp. 418-419.
 Ibid., p. 419.
 Ibid., pp. 420-421.
 Ibid., p. 421.