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The Threat of Indefinite Military Detention Bad for Public Health - Chilling Effect

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  • #16
    Re: The Threat of Indefinite Military Detention Bad for Public Health - Chilling Effect

    The President has many powers in an emergency but those emergencies can have a more defined time frame, like a pandemic. 6 weeks? A year maybe? A 2 year maximum:

    The National Emergencies Act (50 U.S.C. 1601-1651) is a United States federal law passed in 1976 to stop open-ended states of national emergency and formalize the power of Congress to provide certain checks and balances on the emergency powers of the President. The act sets a limit of two years on states of national emergency. It also imposes certain "procedural formalities" on the President when invoking such powers.
    The perceived need for the law arose from the scope and number of laws granting special powers to the executive in times of national emergency (or public danger).
    At least two constitutional rights are subject to revocation during a state of emergency:
    The right of habeas corpus, under Article 1, Section 9;
    The right to a grand jury for members of the National Guard when in actual service, under Fifth Amendment.

    In addition, many provisions of statutory law are contingent on a state of national emergency, as many as 500 by one count.[1]
    It was due in part to concern that a declaration of "emergency" for one purpose should not invoke every possible executive emergency power that Congress in 1976 passed the National Emergencies Act. Among other provisions, this act requires the President to declare formally a national emergency and to specify the statutory authorities to be used under such a declaration.
    There were 32 declared national emergencies between 1976 and 2001. [2] Most of these were for the purpose of restricting trade with certain foreign entities under the International Emergency Economic Powers Act (IEEPA) (50 U.S.C. 1701-1707).




    The war on terror will be endless.....

    The Senate has passed the bill and now it goes to the President:


    "...Final action came when the Senate approved the bill in an 86-13 vote, a day after Obama retreated from a veto threat on the legislation. The administration was unhappy with the intrusion into its authority over counterterrorism matters but relented when some of its flexibility was restored."





    The AUMF is too broad, but it does specify broad Presidential powers only in regards to the September 11, 2011 event.

    Authorization for Use of Military Force
    September 18, 2001
    Public Law 107-40 [S. J. RES. 23]
    107th CONGRESS


    JOINT RESOLUTION
    To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

    Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and

    Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and

    Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and

    Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and

    Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it

    Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,
    SECTION 1. SHORT TITLE.

    This joint resolution may be cited as the `Authorization for Use of Military Force'.
    SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

    (a) IN GENERAL- That the President is authorized to 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, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
    (b) War Powers Resolution Requirements-
    (1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
    (2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.

    Approved September 18, 2001.


    Emily - When I click on the Library of Congress - Thomas link I get this version which is different than yours...jeez....no wonder people can not keep up with this issue....

    S.1867

    National Defense Authorization Act for Fiscal Year 2012 (Engrossed in Senate [Passed Senate] - ES)
    Subtitle D--Detainee Matters

    SEC. 1031. 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) 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 ********, 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, entities, and individuals considered to be `covered persons' for purposes of subsection (b)(2).


    Comment


    • #17
      Re: The Threat of Indefinite Military Detention Bad for Public Health - Chilling Effect

      This is the conference bill which describes how the House and Senate bills are reconciled:

      page 158 of http://www.rules.house.gov/Media/fil...HR1540conf.pdf

      Subtitle D?Counterterrorism

      Affirmation of authority of the Armed Forces of the United
      States to detain covered persons pursuant to the Authorization
      for Use of Military Force (sec. 1021)
      The House bill contained a provision (sec. 1034) that would
      affirm that the United States is engaged in an armed conflict
      with ********, the Taliban, and associated forces.
      The Senate amendment contained a provision (sec. 1031) that
      would affirm the authority of the Armed Forces of the United
      States to detain certain covered persons pursuant to the
      Authorization for Use of Military Force (Public Law 107-40).
      The provision would not 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.
      The House recedes.


      Military custody for foreign ******** terrorists (sec. 1022)

      The Senate amendment contained a provision (sec. 1032) that
      would require military custody for foreign ******** terrorists
      who are captured in the course of hostilities authorized by the
      Authorization for Use of Military Force (Public Law 107-40),
      subject to a national security waiver. Under the provision, the
      President would have broad authority to issue implementation
      procedures, including but not limited to deciding who makes a
      determination of coverage, how the determination is made, and
      when it is made.
      The House bill contained no similar provision.
      The House recedes with an amendment providing that nothing 159
      in this provision 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. The
      law enforcement and national security tools that would not be
      affected in any way by this provision include, but would not be
      limited to, Grand Jury subpoenas, national security letters, and
      actions pursuant to the Foreign Intelligence Surveillance Act
      (Public Law 95-511). The amendment would also authorize the
      President, rather than the Secretary of Defense, to waive the
      requirements of the provision

      Comment


      • #18
        Re: The Threat of Indefinite Military Detention Bad for Public Health - Chilling Effect

        Sharon, I agree that your version of sec. 1031 is the latest one. (Don't ask me why I thought in my last post that it was not. The version I have there is certainly the first listed here, and seemingly not the one passed by the Senate today.

        http://thomas.loc.gov/cgi-bin/query/z?c112:S.1867:
        There are 2 versions of Bill Number S.1867 for the 112th Congress. Usually, the last item is the most recent.
        1 . National Defense Authorization Act for Fiscal Year 2012 (Placed on Calendar Senate - PCS)[S.1867.PCS][PDF]
        2 . National Defense Authorization Act for Fiscal Year 2012 (Engrossed in Senate [Passed Senate] - ES)[S.1867.ES][PDF]
        Sorry to add to the confusion on that. But I still think that the President has the authority under sec. 1031 to have the military take custody of US citizens.

        (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.
        I think there is no exemption for citizens there as there is in sec. 1032. I think that just affirms and codifies "Authorization for Use of Military Force (Public Law 107-40)" which gave the office the authority after 9/11.

        I could be wrong, but I think the exemption in 1032 is specific to 1032. I was listening to Norman Goldman on the radio and he disagrees and thinks the exemption in 1032 applies to 1031. I believe he was a lawyer before he became a talk show host. He also thinks that even if he is wrong and US citizens are subject to sec 1031, that would be unconstitutional and you defend them that way.

        If it ever comes to that, it will take years and lots of money to get citizens out of military detention. Peaceful dissidents could be silenced (or worse) for years because of precedents set during legal proceedings against less sympathetic prisoners.

        http://en.wikipedia.org/wiki/Jos%C3%...%28prisoner%29
        _____________________________________________

        Ask Congress to Investigate COVID Origins and Government Response to Pandemic.

        i love myself. the quietest. simplest. most powerful. revolution ever. ---- nayyirah waheed

        "...there’s an obvious contest that’s happening between different sectors of the colonial ruling class in this country. And they would, if they could, lump us into their beef, their struggle." ---- Omali Yeshitela, African People’s Socialist Party

        (My posts are not intended as advice or professional assessments of any kind.)
        Never forget Excalibur.

        Comment


        • #19
          Re: The Threat of Indefinite Military Detention Bad for Public Health - Chilling Effect

          I agree with you. I think 1031 and 1032 are separate. I also think the US Constitution is one of the "existing laws" that 1031 is referring to so everyone on US soil is protected de facto. Of course, trying to fight this out in court would be onerous as you say.

          I think there must have been some last minute change to include this:

          "..or any other persons who are captured or arrested in the United States."

          Comment


          • #20
            Re: The Threat of Indefinite Military Detention Bad for Public Health - Chilling Effect

            "..or any other persons who are captured or arrested in the United States."
            That should reassure residents and tourists that they have the same right to a transparent justice system as citizens have here. I've read a couple of comments here and there by people avoiding passing through our airports due to fear of the TSA, etc, so we have to stop that trend for the sake of tourism and commerce.

            That is a great video of Edward R. Murrow in the post above, by the way.
            _____________________________________________

            Ask Congress to Investigate COVID Origins and Government Response to Pandemic.

            i love myself. the quietest. simplest. most powerful. revolution ever. ---- nayyirah waheed

            "...there’s an obvious contest that’s happening between different sectors of the colonial ruling class in this country. And they would, if they could, lump us into their beef, their struggle." ---- Omali Yeshitela, African People’s Socialist Party

            (My posts are not intended as advice or professional assessments of any kind.)
            Never forget Excalibur.

            Comment


            • #21
              Re: The Threat of Indefinite Military Detention Bad for Public Health - Chilling Effect

              "Those who deny freedom to others, deserve it not for themselves"
              Abraham Lincoln

              Universal Declaration of Human Rights - All Languages




              <iframe width="560" height="315" src="http://www.youtube.com/embed/elyZ9kaX1Xo" frameborder="0" allowfullscreen></iframe>

              Comment


              • #22
                Re: The Threat of Indefinite Military Detention Bad for Public Health - Chilling Effect

                I was probably wrong about US visitors being excluded from detention per my latest readings. As far as detaining citizens, here's a law blog that I think holds the opinion that the latest version of NDAA has deliberately left that determination up to the courts, pretty much the same status as with AUMF.

                http://www.lawfareblog.com/2011/12/n...the-perplexed/

                Some other opinions and news about allegations of censorship:

                http://www.ibtimes.com/articles/2697...ous-limits.htm
                Are NDAA, SOPA, Occupy Wall Street and Anonymous Off-Limits on Twitter?
                Op/Ed
                By Connor Adams Sheets: Subscribe to Connor's RSS feed
                December 19, 2011 4:07 PM EST


                http://www.businessinsider.com/welco...witter-2011-12
                Welcome To The United Police States of America, Sponsored By Twitter
                David Seaman, Credit Card Outlaw Dec. 19, 2011, 4:51 PM
                Read more: http://www.businessinsider.com/welco...#ixzz1h1OTGS50


                http://www.noquarterusa.net/blog/636...-conservatism/
                RSS Feed for This PostCurrent Article
                The Death of Conservatism
                By Larry Johnson on December 16, 2011 at 2:05 PM in Current Affairs
                _____________________________________________

                Ask Congress to Investigate COVID Origins and Government Response to Pandemic.

                i love myself. the quietest. simplest. most powerful. revolution ever. ---- nayyirah waheed

                "...there’s an obvious contest that’s happening between different sectors of the colonial ruling class in this country. And they would, if they could, lump us into their beef, their struggle." ---- Omali Yeshitela, African People’s Socialist Party

                (My posts are not intended as advice or professional assessments of any kind.)
                Never forget Excalibur.

                Comment

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