Red Flag In 2012 Defense Bill –The National Defense Authorization Act of 2012 is raising concerns across the political spectrum for language that would give the Office of the Presidency the ability to detain people indefinitely without trial.
The Senate version of the act — S. 1867 — was passed 93-7 on Dec. 1 with both Pennsylvania senators, Republican Pat Toomey and Democrat Bob Casey Jr. voting aye.
It is now being reconciled with H. R. 1540. which did not include the rather disconcerting language now found in sections 1031 and 1032 when it was passed 322-96 on May 26.
The senators who dissented on S. 1867 were very conservative Republicans Rand Paul of Kentucky, Tom Coburn of Oklahoma and Mike Lee of Utah; very liberal Democrats Tom Harkin of Iowa, and Oregonians Ron Wyden and Jeff Merkeley; and outright Socialist Bernie Sanders of Vermont.
Paul is the man leading the charge against the new language and explains his reasoning on this YouTube video.
The actual language passed Dec. 1 of the sections which are part of Subtitle D — Detainee Matters is:
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
(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
(1) Detention under the law of war without trial until
the end of the hostilities authorized by the Authorization for Use of
(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
(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) 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.
(f) 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
(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
(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
(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.