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RE: Judiciary Committee Should Assert Its Jurisdiction Over Those Aspects of the Detention Authority Provisions in S. 1253, the National Defense Authorization Act for Fiscal Year 2012 (Sections 1031,1032, and 1036), That Affect Civilians Who Are Otherwise
 

RE: Judiciary Committee Should Assert Its Jurisdiction Over Those Aspects of the Detention Authority Provisions in S. 1253, the National Defense Authorization Act for Fiscal Year 2012 (Sections 1031,1032, and 1036), That Affect Civilians Who Are Otherwise

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SEC. 1031. AUTHORITY TO DETAIN UNPRIVILEGED ENEMY BELLIGERENTS CAPTURED PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE. ...

SEC. 1031. AUTHORITY TO DETAIN UNPRIVILEGED ENEMY BELLIGERENTS CAPTURED PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.

(a) In General- The Armed Forces of the United States are authorized to detain covered persons captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107-40) as unprivileged enemy belligerents pending disposition under the law of war.
(b) Covered Persons- A covered person under this section is any person, including but not limited to persons for whom detention is required under section 1032, 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) Long-term detention under the law of war without trial until the end of hostilities against the nations, organizations, and persons subject to 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) Constitutional Limitation on Applicability to United States Persons- The authority to detain a person under this section does not extend to the detention of citizens or lawful resident aliens 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.

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    RE: Judiciary Committee Should Assert Its Jurisdiction Over Those Aspects of the Detention Authority Provisions in S. 1253, the National Defense Authorization Act for Fiscal Year 2012 (Sections 1031,1032, and 1036), That Affect Civilians Who Are Otherwise RE: Judiciary Committee Should Assert Its Jurisdiction Over Those Aspects of the Detention Authority Provisions in S. 1253, the National Defense Authorization Act for Fiscal Year 2012 (Sections 1031,1032, and 1036), That Affect Civilians Who Are Otherwise Document Transcript

    • The Honorable Patrick Leahy The Honorable Charles Chairman Grassley Committee on the Judiciary Ranking Member 437 Russell Senate Office Building Committee on the Judiciary Washington, D.C. 20510 135 Hart Senate Office Building Washington, D.C. 20510AMERICAN CIVILLIBERTIES UNIONNATIONAL OFFICE125 BROAD STREET 18 T H FL July 1, 2011NEW YORK NY 10004 -2400T/212.549.2500WWW.ACLU.ORGOFFICERS AND DIRECTORS RE: Judiciary Committee Should Assert Its Jurisdiction Over Those AspectsSUSAN N. HERMAN of the Detention Authority Provisions in S. 1253, the National DefensePRESIDENT Authorization Act for Fiscal Year 2012 (Sections 1031,1032, and 1036),ANTHONY D. ROMERO That Affect Civilians Who Are Otherwise Outside of Military Control,EXECUTIVE DIRECTOR Including Civilians Within the United States ItselfROBERT REMARTREASURER Dear Chairman Leahy and Senator Grassley: The American Civil Liberties Union (“ACLU”) strongly urges the Judiciary Committee to assert its jurisdiction over those aspects of the detention authority provisions in S. 1253, the National Defense Authorization Act for Fiscal Year 2012 (“NDAA”), that may apply to civilians, including some American citizens, who are otherwise outside of military control, including civilian suspects apprehended within the United States itself. Sections 1031, 1032, and 1036 of the NDAA are clearly within the jurisdiction of the Judiciary Committee because the provisions, if enacted, would: (1) authorize the federal government to indefinitely imprison without charge or trial civilians—including American citizens—apprehended both inside and outside the United States, including individuals who had no role in the 9/11 attacks or any actual hostilities (the bill would mark the first time since 1950 that Congress explicitly authorizes the indefinite detention without charge or trial of American citizens); (2) mandate military detention of some civilians who would otherwise be outside of military control, including civilian suspects apprehended within the United States itself; and (3) transfer to the Department of Defense core prosecutorial, investigative, law enforcement, penal, and custodial authority and
    • responsibility now held by the Department of Justice, including by the Criminal Division, the National Security Division, the various United States Attorneys, the Federal Bureau of Investigation, the Bureau of Prisons, and the Marshals Service, as well as by the state attorneys general of the fifty states.These provisions in the NDAA are inconsistent with fundamental American values embodied inthe Constitution and in the country’s adherence to the rule of law. Moreover, these provisionssignificantly cut back on the historic protections provided to American citizens by the Non-Detention Act of 1971 and to everyone living in the United States by the Posse Comitatus Actof 1878. The ACLU urges the Judiciary Committee to schedule hearings on these detentionsections of the NDAA, and assert its jurisdiction over these sections for purposes of markup. Section 1031 Would Be the First Time in More than 60 Years that CongressExplicitly Authorizes Indefinite Imprisonment of Civilians Within the United States, andWould Be the First Exception to a 40-Year Old Statute Prohibiting the Detention ofAmerican Citizens Unless Authorized by Congress. Section 1031 would be a sharp andextraordinarily harmful break from decades of Congress refraining from enacting laws for theindefinite imprisonment without charge or trial of American citizens, of persons apprehendedwithin the United States, and of civilians who had no role in actual hostilities. The last time that Congress authorized the indefinite imprisonment of American citizensand legal residents without charge or trial within the United States itself was during theMcCarthy era. In 1950, Congress overrode the veto of President Harry Truman and enacted theInternal Security Act, which included the Emergency Detention Act that authorized the federalgovernment to imprison without charge or trial Americans and non-citizens in the United Statesconsidered likely to commit espionage or sabotage. The Emergency Detention Act was neverused, but after concerns that it could be used to imprison civil rights activists during the 1960’sand as the result of a campaign by the Japanese American Citizens League for its repeal, SenatorDaniel Inouye led the Senate effort for repeal—with the strong support of President RichardNixon. In 1971, Congress repealed the Emergency Detention Act and, in its place, enacted theNon-Detention Act of 1971. For 40 years, the statute has provided, “No citizen shall beimprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” Although Subsection 1031(c) of the NDAA states that it does not apply to Americancitizens or lawful residents “on the basis of conduct taking place within the United States exceptto the extent permitted by the Constitution,” important loopholes remain for citizens who aremere suspects to be imprisoned without charge or trial. In particular, American citizens andlawful residents suspected of wrongdoing outside the United States could be indefinitelyimprisoned, even if apprehended within the United States itself. The “determination” thatsomeone can be indefinitely imprisoned would not require proof of guilt, but instead would bedecided entirely by Executive Branch officials following some future agency regulations. These American citizens and other civilians picked up in the United States, but nevercharged or tried, could be imprisoned “until the end of hostilities” authorized by the 2001
    • Authorization for Use of Military Force. These American citizens could be imprisoned alongwith non-citizen civilians who had no role in the 9/11 attacks or any actual hostilities, and whowould not be detainable under the laws of war. The Judiciary Committee surely has jurisdiction--which it should assert--over the Non-Detention Act and other laws and legislation affecting theimprisonment of American citizens and other civilians picked up without charge in the UnitedStates itself, or picked up overseas for conduct that was not connected to the 9/11 attacks oractual hostilities. Section 1032 Would Put Civilians Who Are Otherwise Outside of Military ControlInto Military Detention, Without Charge or Trial, and Would Curtail the ProtectionsProvided by the Posse Comitatus Act of 1878. Section 1032 requires the mandatory militarydetention of a subset of persons covered by the indefinite detention authority provided in Section1031. Mandatory military detention would extend to civilians who otherwise would not besubject to military control, and would include military detention without charge or trial ofcivilians picked up in the United States itself. Military detention certainly has a place, albeit limited, in federal and international law.However, the military should not be authorized to--or even worse, mandated to--imprisonwithout charge or trial civilians picked up on U.S. soil or who otherwise would be outsidemilitary authority. Not only does Section 1032 mandate the military detention without charge ortrial of civilians who otherwise would not be subject to military control, but it mandates militarydetention even of some civilian suspects picked up in the United States itself. Section 1032 curtails the long-standing protections against domestic use of the military.The Posse Comitatus Act of 1878 generally prohibits the military from carrying out lawenforcement activities within the United States (the statute applies to the Army and Air Force;the Navy and Marine Corps have regulations that have the same effect). The Act was passed toend the military occupation of the former Confederate states, and has subsequently served as amore general safeguard against martial law and against any president using the military toreplace the authority of state and federal civilian law enforcement. A central function of domestic state and federal civilian law enforcement is to arrest anddetain suspects pending criminal charges. Under both Sections 1031 and 1032, the militarywould be given law enforcement authority for detention of certain persons picked up within theUnited States--and for the detention of persons covered by Section 1032, all state and federal lawenforcement would be preempted by the military. The Judiciary Committee has jurisdiction over whether domestic state and federal civilianlaw enforcement will continue to have authority over civilian suspects who are not otherwiseunder military control, and over whether the military may carry out the domestic lawenforcement function of detaining civilian suspects picked up within the United States. The onlyexception to the mandatory military detention of civilians without charge or trial under Section1032 is that the Secretary of Defense may waive his or her authority or a civilian detainee mayeventually be transferred back to civilian authorities. But absent a waiver or transfer decision,state and federal civilian law enforcement will be denied all authority to detain any suspectscovered by Section 1032.
    • Sections 1031, 1032, and 1036 transfer to the Department of Defense coreprosecutorial, investigative, law enforcement, penal, and custodial authority andresponsibility now held by the Department of Justice, including by the Criminal Division,the National Security Division, the various United States Attorneys, the Federal Bureau ofInvestigation, the Bureau of Prisons, and the Marshals Service, as well as by the stateattorneys general of the fifty states. The Justice Department, along with state and local lawenforcement, has generally had the primary responsibility for enforcing the anti-terrorism laws ofthe United States.. The core powers of criminal prosecution, investigation, law enforcement,imprisonment, arrest, and detention are generally carried out by federal, state, and local lawenforcement officials. However, the NDAA would, with respect to many civilian suspects,replace federal, state and local law enforcement with military detention. The provisions wouldsignificantly limit the role of the Justice Department, including its prosecutors, investigators, andprison officials. The Judiciary Committee should assert its jurisdiction over these provisions toensure no infringements on civilian law enforcement against civilians who otherwise would beoutside the control of the military. The ACLU strongly urges the Judiciary Committee to hold hearings on these sections ofthe bill, and to assert the Committee’s jurisdiction to markup sections 1031, 1032, and 1036before the NDAA goes to the Senate floor. Please do not hesitate to contact us if you have anyquestions regarding this matter.Sincerely,Laura W. Murphy Christopher E. AndersDirector Senior Legislative Counselcc: All members of the Senate