If you are more interested in form over function and technicality over substance please do not read this.
Hi Patriots,
Our plan to deal with the NDAA:
First, educate the public, while
Second, have a meeting with the one Kansas Congressman who voted against the NDAA to praise and support him, while
Third, meet with the federal delegation that did support the NDAA to hear their explanations (excuses), while
Four, demanding our state legislators due their duty and live up to their oath to the Constitution and condemn the NDAA and ask for the recall of the Liberty killing provisions, while
Fifth, encourage other patriots to do the same from sea to shining sea.
Support the fight, its good for Liberty!
For the sake of Liberty.
Richard D. Fry
General Counsel
Patriot Coalition
Dir. of Field Ops.
November Patriots
816 853 8718
Memorandum
Tuesday, December 27, 2011
Who is covered by the NDAA’s provisions defining Detainees?
NDAA’s “Covered Person”
The relevant section of the NDAA which identifies who is covered by the detention provision is § 1031 of Senate bill (S1867). The title of this section is AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.
Note that according to this title the NDAA only confirms (“AFFIRMATION”) the authority the President was given under an “AUTHORIZATION FOR USE OF MILITARY FORCE” (AUMF). The specific “authorization” identified within Subtitle D—Detainee Matters is the Authorization for Use of Military Force (Public Law 107–40).
This is the Authorization passed by Congress several days after the 9/11/01 terrorist attack on Washington D.C. and New York. [ii]
Targets of the 9-11 Authorization for use of military force
The AUMF identifies the entities the President is authorized to use military force against. It provides in relevant part:
SECTION 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED
FORCES
(a) That the President is authorized to use all necessary and appropriate force against
those nations, organizations, or persons he determines planned, authorized,
committed, or aided the terrorist attacks that occurred on September 11, 2001, or
harbored such organizations or persons, in order to prevent any future acts of
international terrorism against the United States by such nations, organizations or
persons.[iii]
This provision is clearly retrospective, covering “…nations, organizations, or persons…” that “…authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons…”. This act related to those noted entities that undertook actions prior to the 9/11/01 attack that facilitated such attack.
NDAA “qualifies” (Expands) the AUMF Targets
S1867 adds the following language to qualify the entities covered by the AUMF:
“[The AUMF] 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….” [iv]
Curiously this section of S1867 refers to another section within S1867 to define the persons covered by S1867 to which the AUMF “applies”. This section provides in part:
(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.
VN1PROD with BILLS
The persons defined in Section 1031 (b) (1) are clearly within the entities identified by the UAMF i.e., ““…nations, organizations, or persons…” that “…authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons…”, as it relates to those who were involved (past tense) in facilitating the 9/11/01 attack.
However, Section 1031 (b) (2) is not necessarily so circumscribed or retrospective. It covers persons who used to be “…part of or substantially supported al-Qaeda, the Taliban, or associated forces…” that “are” currently (present tense) engaged in “…hostilities against the United States or its coalition partners…”
The used to be provision is certainly not limited to those who were involved with the AUMF targeted entities prior to the 9/11/01 attack. This “used to be” can be as recent as yesterday. Nor does it appear the “associated forces”, whatever this phrase may mean, are limited to those who were involved with “al-Qaeda” or the “Taliban” prior to the 9/11/01 attack. Thus if one is considered to have been associated with an “associated force” that became associated with al-Qaeda yesterday then such a person is covered even if he stopped his “association” with the entity today.
Definitional Problems with the NDAA
There are also definitional problems as well with §1031. What is considered to be “part of” or “substantial support” for a targeted entity? Considering that the consensus is that al-Qaeda operates through secret cells whose only real connection to al-Qaeda are the cell’s members sharing of some all or of the ideological under pinning of al-Qaeda enough to make the person a “covered” (targeted) by the NDAA?
Note that this section indicates it covers persons “…including any person who has committed a belligerent act…” Does “including” suggest that a person can be “covered” even if they have not committed a “belligerent act” or if they have not “directly supported such hostilities”? What is considered to be a “belligerent act” or to have “directly supported such hostilities”?
Battle Zone: United States
What are the implications of the NDAA, as Senator Lindsey Graham said, making the United States a “battleground”? Graham used this characterization a number of times over a number of weeks. [v] Would such status have a significant or substantial impact on the way U.S. citizens could be treated in the United States? Absolutely! Most likely what Senator Graham meant was not the NDAA would turn the United States into a battleground, by definition, but rather that the rules applicable to a battlefield / war zone would be applied to the United States as if it were a battleground. This is a distinction without a difference as far as the results are concerned. But, it is a significant distinction as far as the Constitution is concerned.
A battle field or war zone is under the authority of the military (martial law) and its commander in chief. The military can sequester an individual or groups they believe might pose a threat to the military or might interfere with its operations either intentionally or unintentionally. To deal with this the military may relocate and / or confine such persons.
It is the exigencies created by the battlefield itself that allows this to occur lawfully. There are no exigencies on this make believe “battlefield” concocted by Senators Graham and McCain. They are telling us we must trade our real Liberties to deal with their “make believe exigencies”. That is not only absurd it is likely treasonous to the Constitution.
Feinstein Amendment 1146
The Feinstein Amendment (1146) which indicated the NDAA does not change the law relating to the detention of American citizens is meaningless. If there is a specific provision which does change such law (and there is), thereby putting the Feinstein provision in conflict with it, the courts will most likely give deference to the specific provision over the general provision. A court will be required to interpret this law so that, if at all possible, all of its provisions are in harmony. As to this law the court will likely interpret the Feinstein Amendment to mean that it does not change the law other than as specified in the NDAA. Neat trick if you know how to set it up.
The court must assume that the legislators knew of and understand existing law. However, in the Senate debates over the NDAA and a Feinstein Amendment in particular, it was very clear the opponents and proponents did not agree on what the current law was under Supreme Court rulings. If they cannot agree on what the law is how they can agree that it does not change the current law.
9-11 AUMF the NDAA and the John Warner Defense Appropriations Act
The John Warner National Defense Appropriations Act (JWNDAA) gave the President authority to intervene in the states (unconstitutionally) in which there exists an “emergency” if the President deems such intervention is necessary. But, the Constitution is very limiting on the federal government’s authority to use military force in the states. The situations which allow the use of military under federal control are: 1) enforcing (constitutional) federal law, 2) to repeal invasion, 3) to put down insurrection and 4) when asked by a state to deal with “domestic violence”. [vi] The Constitution does not give the federal government authority to use military force in the states in just any “emergency” but only in those emergencies specifically noted in the Constitution. The Constitution does not allow such for bird flu, hurricanes, tornados or a plague of locusts. The JWNDAA was an unconstitutional first step toward federal domination of the states via military force or the threat of such force.
Conclusion
In an Orwellian fashion the NDAA does exactly opposite what it says it does. It not only “Affirms” the scope of authority of the Executive Branch under the congressional 9-11 AUMF but it expands its application to persons not covered under the AUMF. The final reconciled bill contains a Feinstein Amendment which is intended to make some of the Senators and the citizens feel better but it is pure insubstantial fluff with no real impact on the NDAA.
Especially taken with prior changes in the law, such as the John Warner National Defense Appropriations Act, this is a very dangerous bill that authorizes unconstitutional actions by the Executive Branch.
By its plain reading and the assertions of its proponents the NDAA covers U.S. citizens, including on U.S. soil. This has not happened in the United States since the War Between the States. Get the lanterns out.
Note: Also see a companion memorandum on the authorized means of disposing with covered persons / detainees under the NDAA.
Richard D. Fry
General Counsel
Patriot Coalition
816 853 8718
--------------------------------------------------------------------------------
S 1867 §1031 (a)
[ii] Authorization of the Use of U.S. Armed Forces Against Those Responsible for the Recent Attacks Launched Against the United States, (P.L. 107-40, 115 Stat. 224, September 18, 2001 [S. J. Res. 23])
[iii] Authorization of the Use of U.S. Armed Forces Against Those Responsible for the Recent Attacks Launched Against the United States, (P.L. 107-40, 115 Stat. 224, September 18, 2001 [S. J. Res. 23])
[iv] S1867 §1031 (a)
[v] Madison Ruppert, The entire United States is now a war zone: S.1867 passes the Senate with massive support, Activist Post (12/2/2011) http://www.activistpost.com/2011/12/entire-united-states-is-now-war-zone.html
This article quotes Senator Lindsey Graham as saying the following:
“In summary here, [section] 1032, the military custody provision, which has waivers and a lot of flexibility doesn’t apply to American citizens. [Section] 1031, the statement of authority to detain does apply to American citizens, and it designates the world as the battlefield including the homeland.”
The quote I provide in the body of this memorandum was made the week of December 11th during the floor debate on the Feinstein amendment 1146 as record on C-Span II, which I watched. This was some weeks after the quote noted above. Graham’s characterizing this bill as making Untied States a “battlefield” is not the result of an impromptu poor choice of words.
[vi] U.S. Constitution Article I §8 clause 14 (Using the militias to enforce federal law, repel invasion and suppress insurrection.); Article IV §4 (Protect states against invasion and upon request of a state to protect it from “domestic Violence….”
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Topic: Montana to start recall of their federal legislators who voted for NDAA (Read 2129 times)