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NDAA Section 1021: the new indefinite detention law

by Peter A. Belmont / 2012-01-01
© 2012 Peter Belmont


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Section 1021 of the NDAA 2012 (NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2012) has been much discussed and bemoaned by the civil rights and human rights communities.[1]
[1]  See for example “Are We All Terror Suspects Now?” by Patricia J. Williams, The Nation, January 2, 2012.
It provides as follows:

Subtitle D—Counterterrorism

SEC. 1021. 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; 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.

(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).

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Here’s what seems dangerous about it to me.

First off, the list of “Covered Persons” reads like the definition of a crime in a criminal statute. A “person” is “covered” if that person is, for example, a “person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001”. But the statute is silent on the question of how the fact that a person (a suspect, let us say) is, indeed, a “Covered Person” is established juridically. In criminal law, such a fact is established by a court. We are not told how this fact is determined here.

Since this statute does not wear the verbal dress of a criminal statute, one presumes that the “legislative intent” was that a “covered person” is not a person determined by a court to be a covered person but, rather, is a person merely accused of being a “covered person”. The question then arises of who is qualified to do the accusing. Must the president do the accusing? May any army private do the accusing? This question is addressed in point Fourth, below. At all events, I would not trust the Supreme Court to decide that the meaning of the legislative language is clear and that, by its terms, no-one could possibly be a “covered person”.

Second of course, the duration of the “detention” described (as penalty, if we view this as a criminal statute) is indefinite, or, to use the precise wording, “pending disposition”. Disposition of what? Of a particular war? Of the entire “war on terrorism”? Disposition of a particular prisoner’s case by a court or military tribunal—in the event, not called for here, that the prisoner’s case is ever brought before a court or tribunal?

Third, what are the conditions of that “detention”? May the prisoner make one (immediate) telephone call to notify friends or family that he/she has been detained? Call a lawyer? It does not say so. Will the International Committee of the Red Cross be notified of the arrest and detention? It does not say so.

Will the prisoner be protected from torture, etc.? It doesn’t say so, and those arguing for this provision have said it was intended in part to allow the acquisition of information, suggesting that torture would indeed be considered—and used.

Fourth, who may be arrested and detained hereunder? Anyone. Or, more specifically, anyone merely accused by some person (not described) as being responsible for the events of September 11, 2001, or who participated with or supported Al-Qaeda or Taliban.

Of course, Section 1021 doesn’t say “merely accused (by someone)”. It says
(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.


What it says is that a person may be arrested and detained indefinitely if he ACTUALLY DID certain things. But who determines the truth of such a fact? Normally it is a court of law in a criminal proceeding, but that is no-where suggested here.

Therefore, what this means must be that a person may be detained upon unproved suspicion.

OK, whose suspicion? High quality or low quality suspicion?

If my neighbor hates me or covets my wife or owes me money and hopes I will be detained indefinitely so that he will never have to pay me, he may denounce me to the army, saying that he suspects that I supported the Taliban. He tells this to Army Person “A”, but does not give his name, address, or telephone number.

Army Person “A” relays the accusation to an appropriate Army Person “B”, who, noting the existence of “suspicion”, and taking “suspicion” alone as a sufficient indication of the fact, and being unconcerned about the lack of identification of the person first announcing “suspicion” and also unconcerned with the lack of corroboration, orders that I be arrested and held incommunicado “pending disposition”, that is, indefinitely.

No-one acquainted with the way that the USA has killed, captured, extraordinarily rendered, etc., etc., suspects can imagine that anything more than the merest unsupported, uncorroborated assertion of “suspicion” was ever required, or ever would be required, to justify detention under Section 1021.[2]
[2]  If you have any doubt, read up on the case of Maher Arar in wikipedia, (more here).



How about detention of persons captured within the USA?

(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.

It appears from subsection (e) that no-one captured within the USA is subject to this act if such person is a citizen or lawful resident alien. If no “existing law or authorities” has already allowed indefinite detention in these cases, then Section 1021 does not do so either.

The reality might be rather different!

How would a prisoner go about proving that he/she is a citizen or lawful resident alien? There is no more opportunity to go before a court for this purpose than for the purpose of testing the correctness of the “suspicion” that led to the arrest.

People who possess the power of making arbitrary arrests (and especially those who enjoy using that power, as secret police have been known to do ever since there were such things as secret police) are not likely to work too hard to protect the asserted/possible rights of their victims.

A person arrested without “papers” (or whose papers were removed by the arresting officer and unavailable when the prisoner first attempted to assert citizenship or lawful alien status) is in bad shape within a regime whose operating principle is to assume guilt and deny rights.

How would such a citizen, etc., get to a court for a “habeas corpus” hearing if he/she were not allowed a single telephone call? If the Army removed that person to a distant, but undisclosed, prison, possibly not within the USA?

Do I exaggerate the worries? I think not. We in the USA are sliding down the slippery slope toward a totalitarian state (a “security state” or “police state”) wherein the governmentally-endorsed (alleged) “fear” of “terrorism” justifies about anything in the way of denial of rights, and the “1%” who deliberately generate, promote, and augment this fear thus suppress and subjugate the “99%” of those who might oppose the enormous military/intelligence budget and apparatus which nowadays drains the money out of all “safety-net” programs a less nominally fearful government might provide.

Regarding the USA’s use of torture, we read in salon: the_jose_rodriguez_lesson (5/1/2012):
As many commenters correctly noted, the torture-defending Rodriguez is clearly a crazed sociopath (of the distinctly banal type identified by Hannah Arendt). At Esquire, Charles Pierce has a perfect post about all of this, writing: “I’m pretty convinced that Rodriguez is both a sociopath and a maniac” (his first paragraph, on the Obama administration’s serial protection of these war criminals, is a must-read). The New Yorker’s Amy Davidson notes that Rodriguez did not even bother to defend torture as a necessary evil but rather “bragged about its use in proving the manhood of the torturer” (indeed, Rodriguez’ claim that authorizing torturing meant people in government were willing to “put their big boy pants on” exposed a whole new level of psychosexual creepiness). Andrew Sullivan says Rodriguez is “a war criminal” who “has no shame about any of this, and intends to make money off it.”

The attack on 9-11 and other attacks on USA troops and embassies, etc., abroad, were responses to USA intervention around the world, responses to the enormous and oppressive USA military empire. The “1%” justify the military empire as protecting the USA against those who would destroy the USA, but, in fact, the military is what produces the enemies. Terrorism is not an attempt to demolish the USA (as is so often suggested) but an attempt to get the USA off the backs of people world-wide.

The world would be a far safer place for most people if the USA’s military empire were rolled back. The people of the USA would be a lot richer if the military/intelligence budget (deliberately hidden from the public so that although we know it is enormous, we do not know how big it really is) were reduced to, say, 10% of its present size, and, thereafter, to no more than 10% of the world-wide total of all other military/intelligence budgets—instead of the near 100% as it is today.

At a minimum, detention should never be allowed to be secret.

And the people of the world—including very much those within the USA itself—would be very much safer if every arrest (by or on behalf of the USA) of any person, anywhere in the world, for any purpose (including suspicion of terrorism) were required to be conducted with the usual formalities required in USA’s typical criminal procedure laws.

Failure by an arresting officer to comply would be a felony, with mandatory 10-years jail term for the arresting officer who failed to follow the procedures. (In the case of Section 1021, the arresting officer at the lowest level is Army Person “B” in my story, or some such person—but, depending on the orders given, it might be the President of the USA (if, for instance, the President of the USA authorized secret detention).

Something to think about, anyway. Happy January 1, 2012!




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