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Sunday, December 4, 2011

Detaining American Citizens? Senate Bill 1867?

New Links and Information added daily! 
Added December 9, 2011:  A Letter from Senator Ben Nelson explaining this law. (Best explanation I have read to date) 
Scroll to the bottom... 

Added December 13, 2011:  Two recent links with comments about this bill.... Scroll to the bottom...

Added December 20, 2011:  An excellent and final explanation written by two attorneys who are national security experts.

Senate Bill 1867, the Department of Defense Appropriations Bill was passed by the Senate Thursday night, December 1st.  A House version of the bill, HR 1540, was passed earlier.  These bills have become very controversial due to the "detainee" provisions in section 1031 and 1032.

The two sections have similar functions: To provide for the detention of "terrorists" under the "law of war".

This bill is not yet law; let's get that straight.  It needs to be reconciled with the House version of the same bill and sent to President Obama.  Obama has threatened to veto the bill if he feels that the detainee provisions in the final submitted bill are not clear enough and/or strong enough to clarify the role of the Department of Defense in the detention of terrorists or terrorist subjects.  Also, the Department of Defense and other federal agencies were not happy with the language of the bill without the amendments.  Get that?  The Department of Defense wanted amendments to clarify what powers and authority they did or did not have.  (Picture below from )    

I've read much back and forth about this bill, but few people seem to actually have read the controversial sections.  So here is Section 1031 as amended and passed by the Senate:

Subtitle D—Detainee Matters



20 (a) IN GENERAL.—Congress affirms that the author-
21 ity of the President to use all necessary and appropriate
22 force pursuant to the Authorization for Use of Military
23 Force (Public Law 107–40) includes the authority for the
24 Armed Forces of the United States to detain covered per-
1 sons (as defined in subsection (b)) pending disposition
2 under the law of war.
3 (b) COVERED PERSONS.—A covered person under
4 this section is any person as follows:
5 (1) A person who planned, authorized, com-
6 mitted, or aided the terrorist attacks that occurred
7 on September 11, 2001, or harbored those respon-
8 sible for those attacks.
9 (2) A person who was a part of or substantially
10 supported al-Qaeda, the Taliban, or associated forces
11 that are engaged in hostilities against the United
12 States or its coalition partners, including any person
13 who has committed a belligerent act or has directly
14 supported such hostilities in aid of such enemy
15 forces.
17 position of a person under the law of war as described
18 in subsection (a) may include the following:
19 (1) Detention under the law of war without
20 trial until the end of the hostilities authorized by the
21 Authorization for Use of Military Force.
22 (2) Trial under chapter 47A of title 10, United
23 States Code (as amended by the Military Commis-
24 sions Act of 2009 (title XVIII of Public Law 111–
25 84)).
1 (3) Transfer for trial by an alternative court or
2 competent tribunal having lawful jurisdiction.
3 (4) Transfer to the custody or control of the
4 person’s country of origin, any other foreign coun-
5 try, or any other foreign entity.
6 (d) CONSTRUCTION.—Nothing in this section is in-
7 tended to limit or expand the authority of the President
8 or the scope of the Authorization for Use of Military
9 Force.
10 (e) AUTHORITIES.—Nothing in this section shall be
11 construed to affect existing law or authorities, relating to
12 the detention of United States citizens, lawful resident
13 aliens of the United States or any other persons who are
14 captured or arrested in the United States.
16 The Secretary of Defense shall regularly brief Congress
17 regarding the application of the authority described in this
18 section, including the organizations, entities, and individ-
19 uals considered to be ‘‘covered persons’’ for purposes of
20 subsection (b)(2). 
Here's Section 1032 as passed:



23 WAR.— 

24 (1) IN GENERAL.—Except as provided in para-
25 graph (4), the Armed Forces of the United States 429
1 shall hold a person described in paragraph (2) who
2 is captured in the course of hostilities authorized by
3 the Authorization for Use of Military Force (Public
4 Law 107–40) in military custody pending disposition
5 under the law of war.
6 (2) COVERED PERSONS.—The requirement in
7 paragraph (1) shall apply to any person whose de-
8 tention is authorized under section 1031 who is de-
9 termined—
10 (A) to be a member of, or part of, al-
11 Qaeda or an associated force that acts in co-
12 ordination with or pursuant to the direction of
13 al-Qaeda; and
14 (B) to have participated in the course of
15 planning or carrying out an attack or attempted
16 attack against the United States or its coalition
17 partners.
19 purposes of this subsection, the disposition of a per-
20 son under the law of war has the meaning given in
21 section 1031(c), except that no transfer otherwise
22 described in paragraph (4) of that section shall be
23 made unless consistent with the requirements of sec-
24 tion 1033. 430
† S 1867 ES
2 Secretary of Defense may, in consultation with the
3 Secretary of State and the Director of National In-
4 telligence, waive the requirement of paragraph (1) if
5 the Secretary submits to Congress a certification in
6 writing that such a waiver is in the national security
7 interests of the United States.


10 (1) UNITED STATES CITIZENS.—The require-

11 ment to detain a person in military custody under

12 this section does not extend to citizens of the United
13 States.
14 (2) LAWFUL RESIDENT ALIENS.—The require-
15 ment to detain a person in military custody under
16 this section does not extend to a lawful resident
17 alien of the United States on the basis of conduct
18 taking place within the United States, except to the
19 extent permitted by the Constitution of the United
20 States. 

22 (1) IN GENERAL.—Not later than 60 days after
23 the date of the enactment of this Act, the President
24 shall issue, and submit to Congress, procedures for
25 implementing this section. 431
† S 1867 ES
1 (2) ELEMENTS.—The procedures for imple-
2 menting this section shall include, but not be limited
3 to, procedures as follows:
4 (A) Procedures designating the persons au-
5 thorized to make determinations under sub-
6 section (a)(2) and the process by which such
7 determinations are to be made.
8 (B) Procedures providing that the require-
9 ment for military custody under subsection
10 (a)(1) does not require the interruption of ongo-
11 ing surveillance or intelligence gathering with
12 regard to persons not already in the custody or
13 control of the United States.
14 (C) Procedures providing that a determina-
15 tion under subsection (a)(2) is not required to
16 be implemented until after the conclusion of an
17 interrogation session which is ongoing at the
18 time the determination is made and does not
19 require the interruption of any such ongoing
20 session.
21 (D) Procedures providing that the require-
22 ment for military custody under subsection
23 (a)(1) does not apply when intelligence, law en-
24 forcement, or other government officials of the
25 United States are granted access to an indi-432
† S 1867 ES
1 vidual who remains in the custody of a third
2 country.
3 (E) Procedures providing that a certifi-
4 cation of national security interests under sub-
5 section (a)(4) may be granted for the purpose
6 of transferring a covered person from a third
7 country if such a transfer is in the interest of
8 the United States and could not otherwise be
9 accomplished.
10 (d) EFFECTIVE DATE.—This section shall take effect
11 on the date that is 60 days after the date of the enactment
12 of this Act, and shall apply with respect to persons de-
13 scribed in subsection (a)(2) who are taken into the custody
14 or brought under the control of the United States on or
15 after that effective date.

Several amendments were proposed to constrain some of the possible authority of this bill, but two were voted down.  Finally, this last minute amendment to Section 1031 was introduced by Dianne Feinstein and passed by a vote of 99-1:
"(e) AUTHORITIES.—Nothing in this section shall be
11 construed to affect existing law or authorities, relating to
12 the detention of United States citizens, lawful resident
13 aliens of the United States or any other persons who are
14 captured or arrested in the United States"  
The amendment, which was a last minute compromise between Feinstein and Carl Levin, the originator of the bill, seems to indicate that there is no "expansion" of federal powers concerning American citizens, legal American residents, or people arrested in the United States, despite what the alarmists are writing about this bill.

Is that true?  Is the wording of the amendment strong enough for such a provision to not be used against Occupy Wall Street protesters.. or any protesters?  I simply don't know.  Section 1032 specifically prohibits the applicability of this bill to United States citizens and to legal residents within the United States except to the extent "permitted by the Constitution of the United States". 

A big problem as I read through these two provisions, particularly section 1031, is who determines if a person to be detained is or is not a member of Al Qaeda or had any involvement in the events of September 11th?  It would seem that the government would have the burden of proving that anyone detained under these laws was a participant in the September 11th attacks or a supporter of Al Qaeda or the Taliban.  On the other hand, if the person is detained, how does he/she get a hearing in which the government has to "prove" that he/she is a terrorist?  Now, if the government can trump up charges to hold someone under this law, then we've already lost the battle for our civil rights; and it's not because of these detainee provisions.

Again, I don't know whether or not this language (as amended) is strong enough to stop the arrest and detainment of American citizens simply exercising their right to free speech and assembly.  My sense is that it is; but I don't know for sure. 

Update 12/6/2011 5:30 p.m. CST:

One of my frustrations as I continue to research this article is that there is little discussion of the amendment that did pass.  The amendment that did pass DOES seem mitigate the effect of this law on U.S. Citizens.  If you couldn't be detained before this act becomes law, you couldn't be detained after this act becomes law.  But I'm not a Constitutional expert.

Here's a comment by Dianne Feinstein in a letter to her constituents:
I was, however, able to reach a compromise with the authors of the defense bill to state that no existing law or authorities to detain suspected terrorists are changed by this section of the bill.  While I would have preferred to have restricted the government’s ability to detain U.S. citizens without charge, this compromise at least ensures that the bill does not expand the government’s authority in this area.
 Update 12/8/2011, 10:00 a.m. CST:

I just found a copy of this letter from Senator Ben Nelson, (D, NE) to constituents about this bill.  This is the clearest explanation yet as to what exactly this bill means and doesn't mean.  (Italics mine):
Dear xxxxx:
Thank you for contacting me regarding detainee provisions within the National Defense Authorization Act (NDAA) for Fiscal Year 2012, S. 1867, which passed the Senate by a vote of 93-7 on December 1, 2011. I believe there is a great deal of misconception surrounding these detainee provisions, and I would like to take this opportunity to clear up these misunderstandings.
Sections 1031 and 1032 of S. 1867 do not create new laws regarding the holding of an American citizen without trial. In fact, to reinforce this point, the Senate passed Senate Amendment 1456, offered by Senator Dianne Feinstein, by a vote of 99-1. This amendment codifies that nothing in Section 1031 regarding the detainee issue affects existing law or authorities relating to citizens or lawful aliens of the United States or any other person who is captured or arrested in the U.S. I voted in favor of amendment 1456.
The authority to hold U.S. citizens engaging in acts of war against the U.S. in military custody has existed for many years. Consequently, Section 1031 simply codifies existing law under the Authorization for Use of Military Force (AUMF), 50 U.S.C. w 1541, and the 2004 Supreme Court case Hamdi v. Rumsfeld, which states that "[t]here is no bar to this Nation's holding one of its own citizens as an enemy combatant." Section 1031 affirms, it does not create, the authority of the President to use all necessary and appropriate force pursuant to the AUMF against any person who participated in the September 11, 2001, attacks or who is a part of al-Qaeda, the Taliban, or associated forces and who is engaged in hostilities against the United States. If an American citizen is part of al-Qaeda or the Taliban and engages in hostilities against the U.S., then that citizen, as determined by the Supreme Court and the Administration, and now codified in S. 1867, can be held without trial until the end of hostilities, similar to U.S. citizens who assisted the Nazis during World War II.
You may be interested to learn that S. 1867 actually creates new safeguards for holding individuals engaging in acts of war against the U.S. It requires that once the U.S. Department of Defense (DOD) detains a citizen who has joined al-Qaeda or the Taliban, DOD must provide that person with an attorney and bring the accused before a federal judge to make the argument that the individual is an enemy combatant. Additionally, an annual review of the accused status as an enemy combatant is required.
It also should be noted that there is nothing in the bill which undercuts the right of habeas corpus. Detainees held by the United States may seek federal court review of the legality of their detention in habeas corpus proceedings. In such proceedings, the government bears the burden of proving the legality of the detention by a preponderance of the evidence. I believe these safeguards will protect citizens and non-citizens alike from being wrongfully held.
Finally, Section 1032 of this bill provides for mandatory military custody for all non-citizens captured, who are members of al-Qaeda and are carrying out or planning to carry out an attack against the United States. We are at war with al-Qaeda, and I believe mandatory military custody is in our best national security interest in the fight against terror. This provision does not apply to American citizens, and there is a national security waiver the Administration may use in the event our national security is better protected by holding an individual in civilian custody.
Thank you again for contacting me. It is an honor to represent you and all Nebraskans in the Senate, and I encourage you to continue sharing your thoughts and ideas.
Ben Nelson U.S. Senator

If anybody has read a measured discussion of this law.. as amended..  by a respected Constitutional authority, please contact me.  

For your reading pleasure and to increase the level of your information about the bill, here are the links I have collected on the subject, in chronological order.  Again, be aware that some of these links do not discuss the act as passed by the Senate with the amendment to section 1031:

November 26, 2011:

November 30, 2011:

December 1, 2011:

December 2, 2011:

December 4, 2011:

December 4, 2011:


  1. I don't see where you take into consideration the number of people that have been considered to have stopped looking. Overall employment is down over 5% which to me says the unemployment rate should be much higher.

  2. Hi Chaser.. I think you commented on the wrong blog post. I haven't yet posted my "alternate unemployment number" which does take into consideration the number of people who "want a job" but haven't looked lately. I don't believe you can count people as unemployed unless they want a job. Do you?

  3. This bill authorizes our military, I guess ALL or ANY BRANCH, to arrest and hold indefinitely those connected with the execution of the 9/11 attacks. This is WONDERFUL. Now, a commander of a state National Guard unit may arrest any Neo-Con insider, any subverted traffic cintroller, or any Paki general who wired money to the CIA and Army trained M. Atta. This is more than we the people could hope for. Just great, really!

  4. I added many links from various sources to this blog entry over the weeks in December when it was discussed so vehemently.

    I would suggest that anybody concerned about this bill read all articles to which I have included links, particularly the last one by a couple of security lawyers.


I appreciate intelligent comments and questions, including those that are at odds with anything posted here. I have elected not to screen comments before they are published; however, any comments that are in any way insulting, caustic, or intentionally inflammatory will be deleted without notice. Spam will also be immediately deleted.