struggle4progress
struggle4progress's JournalFifty Thousand Lumber Jacks
The Conference Report on the Bill was over 1000 pages long, reflecting the length of the bill and
the many disputes involved in crafting it through its six versions. The current 1021 language reflects the 1031 language of the Senate version, which was the subject of a substantial political struggle in the Senate. Feinstein, for example, proposed an amendment to the 1031 language that would have provided a blanket prohibition but lost this fight, in part because the Republicans wanted to insist on indefinite detention language. A similar conflict appeared between the House and Senate versions
The 1031 language in the version of HR 1540 referred to the Senate Committee on Armed Services does nothing except to define "individual detained at Guantanamo" as a person under DoD control at Guantanamo who is neither a US citizen nor a member of the US military; the version that passed the Senate contains in 1031(e) the language that later appeared in 1021(e) of the bill from the Conference Committee
See: http://www.gpo.gov/fdsys/pkg/BILLS-112hr1540rfs/pdf/BILLS-112hr1540rfs.pdf at 567 - 568
See: http://www.gpo.gov/fdsys/pkg/BILLS-112hr1540eas/pdf/BILLS-112hr1540eas.pdf at 419
... Senator Feinstein and others feared that Section 1021 would greatly expand the power of the government with particular reference to the authority to detain American citizens captured domestically. Senator Feinstein explained that she did not believe the government had such authority while Senators Graham and Levin, perhaps among others, believed that the government already did. Thus, Section 1021(e) was introduced specifically to effect a “truce” that ensured that—as to those covered by Section 1021(e)—courts would decide detention authority based not on Section 1021(b), but on what the law previously had provided in the absence of that enactment. This is not to say that Section 1021(e) specifically “exempts” these individuals from the President’s AUMF detention authority, in the sense that Section 1022 expressly exempts United States citizens from its requirements. Rather, Section 1021(e) provides that Section 1021 just does not speak—one way or the other—to the government’s authority to detain citizens, lawful resident aliens, or any other persons captured or arrested in the United States ...
US Court of Appeals for the Second Circuit
Hedges v Obama (Decided: July 17, 2013)
http://legaltimes.typepad.com/files/hedges.pdf at 37 - 38
The reconciliation between the House and Senate versions of the detention provisions is discussed in the Conference Report:
... The Senate amendment contained a provision (sec. 1031) that would affirm the authority of the Armed Forces of the United States to detain certain covered persons pursuant to the Authorization for Use of Military Force (Public Law 107–40). The provision would not 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.
The House recedes ...
See http://www.gpo.gov/fdsys/pkg/CRPT-112hrpt329/pdf/CRPT-112hrpt329-pt1.pdf at 695 - 696
Here is Levin's statement on the bill, as signed:
The Detainee Provisions in the National Defense Authorization Act for FY 2012
Tuesday, January 10, 2012
... Unfortunately, much of what has been said and written about the detainee provisions is simply wrong. If this bill did what some people claim it does, I would have opposed it myself ... First, it affirms the Obama administration’s military detention policy for individuals captured in our fight against al Qaeda, a position upheld by the federal courts. This provision will prevent future administrations from adopting more expansive and problematic interpretations of military detention authority. Second, it establishes a presumption of military detention in the case of one narrow category of individuals – foreign al Qaeda terrorists who are captured in the course of planning or conducting attacks against the United States. The executive branch can waive that presumption, and its ability to try detainees in civilian courts is protected. Third, it establishes new procedural rights, including access to a military judge and a military lawyer, for any individual who is to be held in long-term military detention ... Now, let’s turn to some common inaccurate statements about the legislation:
-- It prohibits civilian trials of terror suspects. False ...
-- It strips the FBI and other federal law enforcement agencies of their anti-terrorism duties and hands those authorities to the military. False ...
-- It allows military troops to make arrests on U.S. soil. False ...
-- It gives presidents new authority to indefinitely hold U.S. citizens without charge or trial. False. The legislation does not change current law regarding U.S. citizens ...
-- It allows indefinite detention of U.S. citizens without access to civilian courts. False ...
http://www.levin.senate.gov/newsroom/press/release/the-detainee-provisions-in-the-national-defense-authorization-act-for-fy-2012/
You're waving around snippets of long conversations without understanding what was actually under discussion
La complainte du partisan
Anna Marly
... Personne ne m´a demandé
D´où je viens et où je vais
Vous qui le savez
Effacez mon passage
J´ai changé cent fois de nom
J´ai perdu femme et enfants
Mais j´ai tant d´amis
Et j´ai la France entière ...
Hier encore, nous étions trois
Il ne reste plus que moi
Et je tourne en rond
Dans la prison des frontières
Le vent souffle sur les tombes
La liberté reviendra
On nous oubliera
Nous rentrerons dans l´ombre
http://en.lyrics-copy.com/anna-marly/la-complainte-du-partisan.htm
Jim Crow Blues
Gone, Sold and Gone
Green fields of France
Tom Paine's bones
It isn't nice
it isn't nice to block the doorway
it isn't nice to go to jail
there are nicer ways to do it
but the nice ways always fail
it isn't nice
it isn't nice
you told us once
you told us twice,
but if that's freedom's price
we don't mind ...
Let's remember what Mr Obama said about NDAA 2012 on signing it:
... Section 1021 affirms the executive branch's authority to detain persons covered by the 2001 Authorization for Use of Military Force (AUMF) (Public Law 107-40; 50 U.S.C. 1541 note). This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then. Two critical limitations in section 1021 confirm that it solely codifies established authorities. First, under section 1021(d), the bill does not "limit or expand the authority of the President or the scope of the Authorization for Use of Military Force." Second, under section 1021(e), the bill may not be construed to affect any "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." My Administration strongly supported the inclusion of these limitations in order to make clear beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF. Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.Section 1022 seeks to require military custody for a narrow category of non-citizen detainees who are "captured in the course of hostilities authorized by the Authorization for Use of Military Force." This section is ill-conceived and will do nothing to improve the security of the United States. The executive branch already has the authority to detain in military custody those members of al-Qa'ida who are captured in the course of hostilities authorized by the AUMF, and as Commander in Chief I have directed the military to do so where appropriate. I reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat. While section 1022 is unnecessary and has the potential to create uncertainty, I have signed the bill because I believe that this section can be interpreted and applied in a manner that avoids undue harm to our current operations.
I have concluded that section 1022 provides the minimally acceptable amount of flexibility to protect national security. Specifically, I have signed this bill on the understanding that section 1022 provides the executive branch with broad authority to determine how best to implement it, and with the full and unencumbered ability to waive any military custody requirement, including the option of waiving appropriate categories of cases when doing so is in the national security interests of the United States. As my Administration has made clear, the only responsible way to combat the threat al-Qa'ida poses is to remain relentlessly practical, guided by the factual and legal complexities of each case and the relative strengths and weaknesses of each system. Otherwise, investigations could be compromised, our authorities to hold dangerous individuals could be jeopardized, and intelligence could be lost. I will not tolerate that result, and under no circumstances will my Administration accept or adhere to a rigid across-the-board requirement for military detention. I will therefore interpret and implement section 1022 in the manner that best preserves the same flexible approach that has served us so well for the past 3 years and that protects the ability of law enforcement professionals to obtain the evidence and cooperation they need to protect the Nation ...
http://www.whitehouse.gov/the-press-office/2011/12/31/statement-president-hr-1540
Babies in the mill
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