EPT
This year, a controversial provision has made its way into the bill.
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 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) 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).
(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 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) 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).
Opponents of this bill have claimed that this bill will allow the U.S. Executive Branch to detain citizens indefinitely. Will it? Let's take a look.
Sec 1031 (a) states that the Armed Forces can detain certain persons. These covered persons are either persons who planned or executed 9/11 or harbored those who did, or persons who have been a part of Al-Qaeda, the Taliban, or "associated forces" or a person who has assisted such groups.
Subsection c) lists the ways that such persons can be detained. This is pretty much what the military has been doing to "unlawful combatants" over the past 10 years.
Subsection e) states the the Secretary of Defense must report to Congress whenever the definition of "covered persons" under subsection b) is expanded to include more groups or individuals than had previously been listed in subsection b. In other words, if the military suddenly decides that Occupy Wall Street has been associating with Al-Qaeda, they've got to explain why they think that is to Congress.
There are two reasons why the government's power to detain U.S. citizens under this act are extremely limited.
The first is the definition of who exactly the government can detain. This definition is almost identical to the one used for the past ten years by the U.S. Armed Forces to define "enemy combatants."
The definition in the Act is the following:
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.
While the definition of an enemy combatant is the following:
‘Enemy combatant’ shall mean an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed belligerent act or has directly supported hostilities in aid of enemy combat forces.
They look pretty much identical, don't they?
The U.S. military has been detaining persons under the "Enemy Combatant" rule for the last ten years, so this law is basically business as usual.
But what about the possibility of the U.S. Army detaining a U.S. Citizen? Doesn't that violate due process?
The Supreme Court agrees with you 100%! In Hamdi v. Rumsfeld, the Court ruled that the Executive Branch of the United States doesn't have the right to hold U.S. Citizens indefinitely without following due process. This court ruling led directly to the release of a U.S. Citizen who was being labeled an enemy combatant.
So, essentially, the bill doesn't need a provision excluding U.S. citizens from the bill's scope. The Supreme Court's ruling has already excluded them.
I know this is tl;dr, and the only reason I'm posting it is so that whenever someone posts a dumb over-simplified thread saying that the U.S. Army now has the right to imprison the entirety of OWS I can just close it and link to this thread instead.
