Infinite Detention, Military Police and the Denial of Resident Rights

A couple of days ago, I receive a few emails regarding provisions in the newest Senate Defense Authorization Bill which would allow military to arbitrarily arrest and detain individuals anywhere over the globe. Senate Bill 1867 mostly regards boring defense budget appropriations and general administrative issues. However, sections 1031 and 1032 directly address detainee issues. I have attached the text at the end of this post.

At issue is the proposed exemption of US citizens and permanent residents from arbitrary military arrest and detainment. Senators Levin and McCain along with others on the Senate Defense Sub-Committee has proposed removing the exemptions, allowing the military to detain anyone it likes, anywhere it likes.

Unfortunately, I must confess that I did not catch this nuance at first and referred only to the original text of the document. I had to insert said foot into said mouth when I got past the poor representation of the issue which was rich on sensationalism and poor on details. For that, I stand up and willingly state that I WAS FUCKING WRONG and now have to come out against this travesty of American Justice.

Fortunately, the Obama administration has vowed to veto the Appropriations Bill if the exemptions for US Citizens and Permanent Residents is not included, according to Democratic Senator Udall of Colorado, who is fighting to keep the exemptions. This alone will likely facilitate the inclusion of exemptions that will protect at least legal US residents.

However, the fact that this measure has gotten this far in the legislative process should be troubling for everyone, particularly if one has any memory of the awful Bush years (though this memory seems to be fading as fast as the battery in my laptop). We’ve sown a path of an increasing disregard for human rights, free speech, free expression and political dissent in this country.

The Obama admin should be applauded for threatening to veto the bill in its current state, but the Obama admin itself has been lax on issues of political liberty and human rights. We still have Guantanamo, still the admin pursues a policy of assassination of enemies abroad (though truthfully, I doubt anyone misses Awlacki or Bin Laden), and the admin is notably silent on issues of violent suppression of political dissent in the recent OWS protests.

Equally troubling, though less discussed, is the exemption covering only US citizens and permanent residents. This potentially could leave the door wide open for miltary arrests and arbitrary detention of undocumented immigrants, for example, or persons the political establishment does not care for, who happen to be here on temporary work visas or holiday. However unsurprising, the measure could even make the Supreme Court’s docket (though I’m no expert on Constitutional law), as a clear affront to Constitutional protections of due process for all in the United States, citizen, legal resident or no.

To those I have mislead, please accept my apology. Below is the text of the controversial sections as they were before the removal of the exemptions:

Update: I’ve been informed that this is the new version of the text that does not include the exemption mentioned above.

Subtitle D–Detainee Matters

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).
SEC. 1032. REQUIREMENT FOR MILITARY CUSTODY.

(a) Custody Pending Disposition Under Law of War-
(1) IN GENERAL- Except as provided in paragraph (4), the Armed Forces of the United States shall hold a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107-40) in military custody pending disposition under the law of war.
(2) COVERED PERSONS- The requirement in paragraph (1) shall apply to any person whose detention is authorized under section 1031 who is determined–
(A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and
(B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.
(3) DISPOSITION UNDER LAW OF WAR- For purposes of this subsection, the disposition of a person under the law of war has the meaning given in section 1031(c), except that no transfer otherwise described in paragraph (4) of that section shall be made unless consistent with the requirements of section 1033.
(4) WAIVER FOR NATIONAL SECURITY- The Secretary of Defense may, in consultation with the Secretary of State and the Director of National Intelligence, waive the requirement of paragraph (1) if the Secretary submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.
(b) Applicability to United States Citizens and Lawful Resident Aliens-
(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.
(2) LAWFUL RESIDENT ALIENS- The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.
(c) Implementation Procedures-
(1) IN GENERAL- Not later than 60 days after the date of the enactment of this Act, the President shall issue, and submit to Congress, procedures for implementing this section.
(2) ELEMENTS- The procedures for implementing this section shall include, but not be limited to, procedures as follows:
(A) Procedures designating the persons authorized to make determinations under subsection (a)(2) and the process by which such determinations are to be made.
(B) Procedures providing that the requirement for military custody under subsection (a)(1) does not require the interruption of ongoing surveillance or intelligence gathering with regard to persons not already in the custody or control of the United States.
(C) Procedures providing that a determination under subsection (a)(2) is not required to be implemented until after the conclusion of an interrogation session which is ongoing at the time the determination is made and does not require the interruption of any such ongoing session.
(D) Procedures providing that the requirement for military custody under subsection (a)(1) does not apply when intelligence, law enforcement, or other government officials of the United States are granted access to an individual who remains in the custody of a third country.
(E) Procedures providing that a certification of national security interests under subsection (a)(4) may be granted for the purpose of transferring a covered person from a third country if such a transfer is in the interest of the United States and could not otherwise be accomplished.
(d) Effective Date- This section shall take effect on the date that is 60 days after the date of the enactment of this Act, and shall apply with respect to persons described in subsection (a)(2) who are taken into the custody or brought under the control of the United States on or after that effective date.

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About Pete Larson

Assistant Professor of Epidemiology at the Nagasaki University Institute for Tropical Medicine

One response to “Infinite Detention, Military Police and the Denial of Resident Rights”

  1. Trident Military College says :

    Sounds like it could be a slippery slope; U.S citizens are entitled to a trial and what if the government accidentally imprisons someone who isn’t a terrorist? It’s happened before.

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