Indefinite detention without trial for U.S citizens?

@Cyracuz,

No, not anyone can be arrested and detained indefinitely without a trial or justification.

Quote:

(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;
50 U.S.C. 1541 note) 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
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.
(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.

This law does not authorize the indefinite detention of mere U.S. citizens by the military or government authorities. If, however, you are a "covered person", and are caught or captured by the U.S. military or other government authorities, then they can detain you until hostilities have ceased. The statute defines "covered person" as, "(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 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."

The law is silent about the detention of a U.S. citizen caught, captured, or detained on U.S. soil other than to state this legislation does not affect existing law or authorities on the subject matter of detaining U.S. citizens or law resident aliens on U.S. soil.

2 Replies

@NotreDame05,

But who decides that the person was actually a member of or working for Al Qaeda? What court can review that decision?

1 Reply

@Cyracuz,

I'm not sure, but I wouldn't necessarily take the alarmists at their word.

The law is reported to extend for 500 pages and the pdf file to which the HuffPo article was linked, exceed 1,800 pages.

This is absurd.

Unless a friend or loved one is detained or you get paid to, who is going to read this entire law?

If we choose not to try and plow through it, we must rely upon the analysis of different parties with differing perspectives and agendas...and we can't be sure that they have read the entire law.

Add to this the fact that it got signed by the president on New Year's Eve when no one was paying attention to the news, and then with a weasely signing statement, and you get a good picture of how poorly we are often served by our government.

From what I can tell, without having read the entire law, there are certain qualifying circumstances required before a US citizen can be indefinitely detained without trial. None of them are particularly comforting though.

First, you must be suspected of terrorist activities which, it seems, must be in some way connected to al Qaeda or the Taliban.

Secondly, only the president can order your indefinite detention without trial.

Thirdly, the detention can actually only last as long as "hostilities" last.

I've yet to find a reference to your right to have the government's suspicions validated by a commission or court and if that's the case then it would appear that an American citizen can be indefinitely detained without trial for any reason. Obviously, our lawmakers and president don't think this would ever happen unless there was at least some reason to connect the citizen to terrorism, but confidence in institutions has proven to be unfounded many times throughout history.

President Obama added a signing statement that his administration would never invoke the law to detain American citizens, but that's a political cop-out designed to try to disassociate himself from the inevitable criticism of the law.

If he believes the law presents a threat to our rights and can't be reasonably certain that it will never be abused by a president (and he cannot), then he never should have signed it.

It may well be more than one lifetime before it can be said that "hostilities" in the War on Terror have ended, so that's essentially a meaningless limitation.

Even if one assumes the Republican members of Congress are all fascists who care nothing about individual rights, the Senate is controlled by the Democrats, and last time I checked, Obama was one too. If the Democrats, including the head of their party, really thought this law was a major threat to individual rights, they could have easily defeated or (in the case of Obama) vetoed it.

Why didn't they then?

Either they are just about all convinced that it isn't a real threat or it contains enough pork to have satisfied their political needs.

I'm not prepared to draw conclusions on the scope of the law without learning a lot more about it, but I feel reasonable in concluding the politics involved stink, and I don't exempt Republicans as a source of the stench.

2 Replies

@NotreDame05,

But if there's no trial involved, can't they just accuse anyone of being a "covered person"? They would not have to defend their claim.

1 Reply

@Finn dAbuzz,

Quote:

First, you must be suspected of terrorist activities which, it seems, must be in some way connected to al Qaeda or the Taliban.

"Terrorist activities" is a pretty vague term, and it is continuously defined by whatever acts "terrorists" commit. If the Taliban start distributing flyers, will that make distributing flyers a "terrorist activity"?

Quote:

Secondly, only the president can order your indefinite detention without trial.

Yes, apparently that was changed when he threatened to use his veto. But I would not be surprised if there was something in there that gives the president the ability to delegate this to others.

Quote:

Thirdly, the detention can actually only last as long as "hostilities" last.

Judging by history, that would be always, since the USA has been involved in one war or another for almost the entirety of the nation's existence. And now, from what I read, the entire nation is defined as part of the war zone.

0 Replies

@parados,

parados wrote:

But who decides that the person was actually a member of or working for Al Qaeda? What court can review that decision?

This issue was decided by Hamdi v. Rumsfeld. A U.S. citizen challenging his detention has a right to the government's factual basis for the classification and a "fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker."

There is always the writ of Habeas Corpus, which is available in certain circumstances.

0 Replies

@Cyracuz,

Cyracuz wrote:

But if there's no trial involved, can't they just accuse anyone of being a "covered person"? They would not have to defend their claim.

According to the Hamdi v. Rumsfeld decision, if a U.S. citizen detainee is challenging his designation, which he has a right to do under this decision, then the government does have to defend classification of the detained citizen.

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Personally, I do not like the law, because it does not go far enough in terms of explicitly asserting what is to be done with U.S. citizens on U.S. soil. Furthermore, I think Scalia's dissent in Hamdi v. Rumsfeld is a very compelling rebuke of the government's power and authority to detain people until hostilities have ceased absent compliance with those provisions in the U.S. Constitution.

However, I also know there is a lot of misinformation about this bill amongst Americans, and indefinite detention of mere U.S. citizens without trial is not entirely accurate.

0 Replies

@Cyracuz,

If there are protections under this law, I can't see them. It does look like a continuation of existing procedure, though. It's been going on since 2002, at least.

http://topics.nytimes.com/top/reference/timestopics/people/p/jose_padilla/index.html

Jose Padilla.

Quote:

Alan Diaz/Associated Press

Updated: Sept. 19, 2011

On June 10, 2002, Attorney General John Ashcroft interrupted a visit to Moscow to announce a sensational arrest: an American citizen named Jose Padilla had been detained at O'Hare Airport and charged with taking part in an Al Qaeda plot to detonate a radioactive "dirty bomb" within the United States.

1 Reply

@roger,

roger wrote:

If there are protections under this law, I can't see them. It does look like a continuation of existing procedure, though. It's been going on since 2002, at least.

http://topics.nytimes.com/top/reference/timestopics/people/p/jose_padilla/index.html

Jose Padilla.

Quote:
Alan Diaz/Associated Press

Updated: Sept. 19, 2011

On June 10, 2002, Attorney General John Ashcroft interrupted a visit to Moscow to announce a sensational arrest: an American citizen named Jose Padilla had been detained at O'Hare Airport and charged with taking part in an Al Qaeda plot to detonate a radioactive "dirty bomb" within the United States.

It is true this law is practically a reaffirmation of the president's power to detain people under AUMF, although the AUMF does not explicitly grant the president this power. However, the Court in Hamdi v. Rumsfeld stated this authority is implied by the languge in the statute and the international law of war recognizes such authority and is an inherent power of the government's war powers.

The protections can be found in various U.S. Supreme Court decisions, such as Hamdi v. Rumsfeld, and the use of the Writ of Habeas Corpus in certain circumstances.

1 Reply

@NotreDame05,

A writ of habeas corpus requires that someone with access to the courts has knowledge the person was detained and an admission by the government that the person was detained. The US decided they could secretly detain people in the war on terror. Whether they would do so with US citizens may be a question but is it one we really want to have to ask?

0 Replies

@Finn dAbuzz,

Quote:

First, you must be suspected of terrorist activities which, it seems, must be in some way connected to al Qaeda or the Taliban.

Secondly, only the president can order your indefinite detention without trial.

Thirdly, the detention can actually only last as long as "hostilities" last.

Quote:

For the past 55 years it [the USA] has been running a terrorist training camp, whose victims massively outnumber the people killed by the attack on New York, the embassy bombings and the other atrocities laid, rightly or wrongly, at al-Qaida's door. The camp is called the Western Hemisphere Institute for Security Cooperation, or Whisc. It is based in Fort Benning, Georgia, and it is funded by Mr Bush's government.

http://www.guardian.co.uk/world/2001/oct/30/afghanistan.terrorism19

1 Reply

Another open ended law that can mean what the government or the military wants it to mean.

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@JTT,

Your point?

0 Replies

Heard to today, but cannot confirm, that both Lindsay Graham and Carl Levin have told reporters that, despite his apparently deceptive signing statement, it was Obama who insisted on the president having the ability to indefinately detain US citizens.

Researching, but I'm sure it comes as no surprise that I find this totally in keeping with one of the most mendacious presidents this country has ever had.

1 Reply

@Finn dAbuzz,

The way I understand it, the alternative was a lot more people having that ability, and he signed when they changed it to restrict the number of people allowed to make that judgment.

1 Reply

@Cyracuz,

The way you understand it may be accurate but the report I heard indicated that Obama wanted the ability over no one having the ability...as far as American citizens go.

Indefinite detention without trial for U.S citizens?

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