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Read it before you believe it: misinformation on detainment authority in Defense Bill
Posted by Mac on December 15, 2011 | comments
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There has been a fair amount of inaccurate information and misunderstanding about the final version of the Defense Authorization Bill (NDAA), which passed the House yesterday.  The bill provides pay and benefits for our troops, buys the weapons and equipment they need, and funds research to help meet future threats.  It is an important bill to pass because it helps carry out the first job of the federal government – our national defense.

There are some misunderstandings related to two provisions involving the detention of Al Qaeda terrorists.  Over the past decade, the United States has detained members of Al Qaeda, the Taliban, and associated groups when they have been captured on the battlefield.  In fact, some were released and had to be recaptured or killed because they went back to killing American soldiers.   Both the Bush and Obama Administrations have detained those individuals who are members of Al Qaeda, the Taliban, and associated groups, and the courts have affirmed the ability to do so under the U.S. Constitution.  But, the specific authorization for detention was inferred from the Authorization to Use Military Force; it was not explicitly stated in statute.

The NDAA explicitly states that authority in statute, on the exact same terms as the courts have recognized it with one exception.  The bill adds explicit protections for American citizens – even American citizens who have joined Al Qaeda to take up arms against the United States.

Some people have argued that these provisions allow a President to detain American citizens within the United States indefinitely if he brands them a terrorist.  That is not true.

Here are two specific provisions from the bill.  Read them yourself.

 SUBTITLE D. SEC. 1021. (p. 655)

  • (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


SUBTITLE D. SEC. 1022. (p. 657)




    (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.

If words have meaning, that is about as clear as English can get.

Some of the misunderstanding arose because there have been several versions of the bill language and previous versions did not have all of the protections that were in the final bill.  Other misunderstanding came because some groups do not agree with current law.  Some of them believe that all Al Qaeda terrorists should have the full constitutional rights of an American citizen, including the right to consult a lawyer, even on the battlefield.

Those debates will continue.  But the purpose of this bill was to put into statute the current legal standard agreed upon by two administrations and the courts.

I’m afraid that some well-intentioned people have been agitated for reasons that just don’t exist.

That does not mean that Congress should not continue to examine this issue.  There may be legislative improvements that need to be made.  We must protect Americans from Al Qaeda and other terrorists and at the same time protect our individual rights and liberties under the Constitution.  We can do both.

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