NP: Alienation and Sedition Act?

[Robert Mahnke]

Henry,


This is not an area of the law I know much about, and so it is quite likely
that I am missing something important.  With that important caveat, this is
what I think this the proposed language would do:



As a general matter, the Posse Comitatus Act  of 1878 (
http://en.wikipedia.org/wiki/Posse_Comitatus_Act) bars the military from
engaging in law enforcement within the United States.  It sounds like the
proposed language in Section 1031 would loosen this restriction in
connection with the “war on terror,” and would permit suspected terrorists
within the United States (including U.S. citizens) to be held in military
custody instead of the criminal justice system.



Section 1031(a) “affirms” (which is a lawyerly way of saying ‘changes the
law to now say (while pretending that the law has always been)’) that the
President’s authority under the AUMF (Public Law 107-40, a post 9/11 which
gives the Executive Branch broad authority to combat terrorism) “includes
the authority for the Armed Forces of the United States to detain *covered
persons … pending disposition under the law of war*.”  (This language would
trump anything contrary in the Posse Comitatus Act.)  This prompts further
questions: Who are “covered persons”?  What does “pending disposition under
the law of war”?



Section 1031(b) defines “covered persons.”  They include anyone who
“substantially supported” Al Qaeda, the Taliban, or “associated forces,”
“including any person who has … directly supported [] hostilities in aid of
such enemy forces.”  In this context, I don’t see a reason that the
“support” requisite here could not be construed very broadly.



Section 1031(c) explains what “pending disposition under the law of war”
means.  It means a person can be “detained without trial” until the war on
terror is over (“the end of the hostilities authorized by the AUMF”).  Section
1031(c)(1).  It also means that a person can be turned over to the
government of “another other foreign country, or any other foreign entity.”
Section 1031(c)(4).



Section 1032 not only permits but requires that some of the “covered
persons” be detained without trial, with some exceptions.  U.S. citizens
are exempted from this requirement, Section 1032(b)(1), but not – as far as
I can tell – from the provisions of Section 1031.


Which is to say that Section 1031 permits U.S. citizens who “directly
support[]” Al Qaeda, etc., can be locked up by the military without a trial
until the war on terror is over, but it at least lets the military to use
the ordinary courts.  On a quick reading, I believe Section 1032 would mean
that the President and DOJ could not use the federal courts to try
terrorism suspects who are not U.S. citizens or legal permanent residents,
even if they wanted to.



Is that different from what you understood?


On Wed, Nov 30, 2011 at 7:58 AM, Henry M <scuffling at gmail.com> wrote:

> S. 1867, the National Defense Authorization Act for Fiscal Year 2012,
> is being attacked by people who, for the most part, haven't read it at
> all, and also and by firebaggers who are up to their "Dem's are
> hardly, if at all, better than Repubs so don't vote for them either"
> tricks.
>
> The ACLU, which I practically always agree with, has said “The Senate
> is going to vote on whether Congress will give this president—and
> every future president — the power to order the military to pick up
> and imprison without charge or trial civilians anywhere in the world.
> The power is so broad that even U.S. citizens could be swept up by the
> military and the military could be used far from any battlefield, even
> within the United States itself.” They, and Sen. Mark Udall cite
> sections are 1031 and 1032 of the bill.
>
> Would someone please actually read the sections in question and then
> explain to me how these they represent a new threat to Americans, or
> even to "lawful resident aliens." I'd really appreciate it, 'cause I
> don't see it!  I really would like to understand.  I mean it!
>
> http://www.gpo.gov/fdsys/pkg/BILLS-112s1867pcs/pdf/BILLS-112s1867pcs.pdf
>
> AsB4,
> ٩(●̮̮̃•̃)۶
> Henry Mu
> http://astore.amazon.com/tdcoccamsaxe-20
>
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