by Sarah Tarver
News editor
On Dec. 31, 2011, President Barack Obama signed the National Defense Authorization Act for the fiscal year 2012. This act has been around since 1987, outlining the distribution of funds for the military. This year, however, two specific sections have sparked debate.
In the Counterterrorism section of the bill, there are two areas, section 1021 and section 1022, dealing with the detainment or military custody of enemy combatants, which is defined by the Pentagon as: “Any person that U.S. or allied forces could properly detain under the laws and customs of war. For purposes of the war on terror an enemy combatant includes, but is not necessarily limited to, a member or agent of Al Qaeda, Taliban, or another international terrorist organization against which United States is engaged in an armed conflict.”
Many, including Brian J. Trautman, who published an article in counterpunch, an online political newsletter, http://www.counterpuch.org, “Why the NDAA is Unconstitutional,” have looked at this as a violation of the rights of United States citizens, as it is possible for a citizen to be detained “until the end of hostilities” under this act. However, there are very specific requirements in order for this to occur.
Oklahoma Sen. James Inhofe (R), one of 86 senators who voted in favor of this bill, co-sponsored amendments to the bill before its final signing that verify compliance with the Constitution and safeguard American citizens, according to Brandon Andrews, a representative of Inhofe’s office.
The version of the bill that passed was the seventh. One amendment, added after the June version of the bill, was the addition of subsection e to section 1021 which states “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.”
Andrews explained what this amendment means. In order for a United States citizen, lawful resident alien of the United States or any other person who is captured or arrested in the United States to be detained until the end of hostilities as stated within section 1021, they must go through a certain process.
The process, as described by Andrews, starts with a person being arrested with charges by civilian law enforcement or a federal agency and go through the civilian criminal proceedings as normal. If, during the course of the trial, it is proven that the person on trial falls under the category of enemy combatant, then he or she is taken into military custody.
The Authorization For Use Of Military Force in Response to the 9/11 Attacks which was passed by Congress on Sep. 14, 2001, and signed by President George W. Bush on September 18, 2001, states that the president can “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”
This has given the military an inferred authority to detain enemy combatants, said Andrews. The NDAA specifies just how much authority the military has.
During American combat operations in late 2001 in Afghanistan, an American citizen Yaser Edam Hamdi was captured and detained as an “enemy combatant.” He was sent to the Naval Station at Guantanamo Bay and then to a naval brig in Columbia, South Carolina. Hamdi’s father filed for a hearing to contest this detainment and classification as an “enemy combatant.”
The Supreme Courts ruling on the case Hamdi v. Rumsfeld states “Decision (5-4): Ruled that the president has the power to declare U.S. citizens enemy combatants and detain them as such. However, in a 6-3 decision, the court also ruled that Yaser Esam Hamdi is entitled to contest that determination before a ‘neutral decisionmaker.’”
This has set the precedent, allowing any United States citizen or lawful resident alien of the United States who has been classified as an enemy combatant to contest that decision.
If the decision is overturned and their classification is changed, then they will be returned to the civilian court and the trial will continue as usual.
By specifically laying out the restrictions on the military and other agencies within the NDAA it provides guidelines and makes it more difficult for the boundaries to be crossed, explained Andrews.
Oklahoma Sen. Tom Coburn (R) was one of 13 senators who voted against this bill.
Becky Bernhardt, a representative of Coburn’s office, said that the senator’s objection to the bill is that it does not provide sufficient oversight. Bernhardt clarified that Coburn supports the armed forces, but believes that the allocation of funds outlined in the NDAA does not adequately cover what he considers to be the important things, and he does not have a problem with subsection e as he does believe that it provides sufficient safeguarding for citizens.
Texas Rep. Ron Paul (R) gave a speech in the U.S. House on Wednesday, Jan. 18, asking for a repeal of section 1021 from the NDAA. The repeal, or HR 3785, was referred to two committees on Jan 18, the House Foreign Affairs Committee and the House Armed Services Committee.
From a transcript of that speech available on his website Paul said “Some have argued that nothing in Section 1021 explicitly mandates holding Americans without trial, but it employs vague language radically expanding the detention authority to include anyone who has ‘substantially supported’ certain terrorist groups or ‘associated forces.’ No one has defined what those two terms mean.”
In addition to the repeal, another act was presented in both the House and the Senate titled the Due Process Guarantee Act of 2011, S 2003 and HR 3702. California Sen. Dianne Feinstein (D) introduced S 2003 on Dec. 14, 2011, and California Rep. John Garamendi (D) introduced HR 3702 on Dec. 16, 2011. These acts are identical, known as companion legislation, and were both proposed so that if one gets held up the other might be passed and put pressure for the other house to pass one or the other.
These are “bill[s] to clarify that an authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States and for other purposes,” according to the bill text on GovTrack.us, a website that is dedicated to keeping track of everything going on in Congress.
If passed, these acts will be amendments to the Non-Detention Act of 1971, which stated, “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” An act of Congress is either an act or bill that makes it through both houses of Congress and is enacted into a law.
According to a Congressional Research Service report from April 28, 2005, when Yaser Esam Hamdi and Jose Padilla were designated enemy combatants by the Bush administration in 2001, “the Administration argued that the Non-Detention Act restricts only imprisonments and detentions by the Attorney General, not by the President or military authorities.”
Marcus Woodson, a representative of Garamendi’s office, explained that the idea is to make sure that the detainee policy is clearly defined and understood.
In a press release on her site, Feinstein said, “We must clarify U.S. law to state unequivocally that the government cannot indefinitely detain American citizens inside this country without trial or charge. I strongly believe that Constitutional due process requires U.S. citizens apprehended in the U.S. should never be held in indefinite detention. And that is what this new legislation would accomplish.”
GovTrack.us has the history and actions for each of the bills and acts. So far S 2003 has been read through twice and then referred to the Committee on the Judiciary, and HR 3702 was introduced and referred first to the House Committee of the Judiciary and then to the Subcommittee on Crime, Terrorism and Homeland Security. Both have gained co-sponsors, but no further activity has occurred at this time.