How One Piece of Paper Destroyed Your Right to a Trial

The Nation ^ | 24 July 2014 | Peter Van Buren

[OneWingedShark]

You can’t get more serious about protecting the people from their government than the Fifth Amendment to the Constitution, specifically in its most critical clause: “No person shall be…deprived of life, liberty, or property, without due process of law.” In 2011, the White House ordered the drone-killing of American citizen Anwar al-Awlaki without trial. It claimed this was a legal act it is prepared to repeat as necessary. Given the Fifth Amendment, how exactly was this justified? Thanks to a much contested, recently released but significantly redacted—about one-third of the text is missing—Justice Department white paper providing the basis for that extrajudicial killing, we finally know: the president in Post-Constitutional America is now officially judge, jury and executioner.

[Hulka]

“. . .they’ve already effectively suspended habeus corpus and have shut up the right to trial so it is pretty much dependent on their whim (see standing)… with this particular case they are setting the groundwork for legalizing the killing of citizens directed by the executive without trial or defense.”

Where is this in law?

I’d like to read the actual legislation.

[OneWingedShark]

NDAA 2014 is here; see section 1071 Enhancement of capacity of the United States Government to analyze captured records.
But the one that I was thinking of was in NDAA 2012: 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.

Subsec (b)(2) of the latter [NDAA12, Sec 1021] has a nice gem of associated forces that are engaged in hostilities against the United States or its coalition partners, which the federal gov could certainly take to mean any militia or state daring to go against the federal government (i.e. what happens when a gov sends NG forces to actually secure the border? Likely the FedGov will retaliate in some manner; possibly sending federal forces to make them stop… if the state's forces reject that, then this can come into effect — moreover, it could be applied to the likes of the militia around Bundy's place. [I'm of the opinion that they wanted to spark a civil war.])

Those two sections alone should raise alarm-bells in your head; but take the two laws together and it's not pleasant to contemplate.

[Hulka]

Thank you, but the link is obsolete because that version is a version before the House marked the Bill. The House passed a different version (the section you refer to addresses reporting gifts and such).

The updated links are: https://www.govtrack.us/congress/bills/113/hr1960/text and http://www.gpo.gov/fdsys/pkg/CPRT-113HPRT86280/pdf/CPRT-113HPRT86280.pdf

I can’t find references listed in previous defense budgets.
What I find are:

FY12 NDAA, Section Title X, General Provisions. It is in this section we find what is causing the reactions we are observing.

Subsection D-Counterterrorism, para C (1), pg 1562
(http://www.gpo.gov/fdsys/pkg/PLAW-112publ81/pdf/PLAW-112publ81.pdf.

The relevant Section reads:
Subsection 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.

. . .thus far. Sec 1021, c(1), appears to support the case. . .but not:

In the next paragraph, 1021 e, it clearly and plainly states:

“(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.”

And, very important to note,

“(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.”

So, we can plainly see that Americans can’t be snatched up off the street and held indefinitely. The law clearly says NO.

And in the FY13 NDAA (http://www.gpo.gov/fdsys/pkg/BILLS-112hr4310enr/pdf/BILLS-112hr4310enr.pdf):

SEC. 1029. RIGHTS UNAFFECTED.
Nothing in the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) or the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112–81) shall be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights in a court ordained or established by or under Article III of the Constitution to any person inside the United States who would be entitled to the availability of such writ or to such rights in the absence of such laws.”

In plain language it is clear US citizens can’t be scooped up and held indefinitely.

FY14 has not passed the Senate yet and like I said, I found no references like FY12/13. So, that means FY12/13 provisions remain in force.

I contacted Cruz’s office (my Senator) and they sent vague language expressing opposition but were unable to provide specific parts that they disagree with). Same with my Congressman’s office (Burgess).

If you find something more or with better information, please send. Thanks.