Moral Low Ground

Civil Liberties

Final Senate Vote on Indefinite Military Detention of U.S. Citizens Without Trial Looms; Obama Threatens Veto

UPDATE: On December 1, 2011, the Senate voted 93-7 to approve the indefinite military detention of U.S. citizens without trial or charge.

The U.S. Senate has cleared the way for a final vote on a $662 billion defense spending bill that includes a provision that would radically expand indefinite military detention of American citizens without charge or trial. This shocking measure has received little attention from the U.S. mainstream media even though it could result in the rounding up and indefinite detention of everyday Americans who express support for causes the U.S. government doesn’t like.

This could be you…

Buried deep inside the 2012 National Defense Authorization Act are Sections 1031 and 1032, authored by Sens. Carl Levin (D-MI) and John McCain (R-AZ). If enacted, they would:

  •  Explicitly authorize the federal government to indefinitely imprison without charge or trial civilians apprehended both inside and outside the United States.
  •  Mandate military detention of some civilians who would otherwise be outside of military control, including suspects apprehended within the United States itself.
  •  Transfer to the Department of Defense core prosecutorial, investigative, law enforcement, penal, and custodial authority and responsibility now held by the Department of Justice.

These provisions would permit the U.S. government to imprison anyone, including American citizens, indefinitely in military prisons such as the Guantanamo Bay concentration camp without charge or trial. The Defense Department– not the applicable civilian law enforcement agencies– would be in charge of prisoner’s destinies. The mandatory detention of certain civilians is also particularly troubling.

Disturbingly, the decision regarding who can be imprisoned indefinitely does not depend on evidence or proof of guilt, but rather on executive branch officials such as the President.

“It could be for things you’ve done here in this country,” warned Democracy Now!’s Amy Goodman. “If you communicate with Al Qaeda, you’re suspected of being even a supporter of Al Qaeda in some way or of Al Qaeda’s associated forces. And the U.S. gets to decide who they think is associated with Al Qaeda, and that list grows longer almost every day.”

Indeed, support or expression of support for individuals or groups the U.S. government considers terrorists could land American citizens in Guantanamo-like concentration camps forever. That would have a staggering chilling effect on free speech. Moral Low Ground, for example, is a vocal supporter of Palestine’s liberation struggle against Israeli ethnic cleansing, occupation and apartheid. This support may be interpreted by some U.S. officials as endorsing terrorism, placing me, and many others who espouse unorthodox political views, in possible danger.

Section 1032 also eviscerates safeguards under the Posse Comitatus Act, which protects Americans against the government employing the armed forces for domestic law enforcement activities. “All state and federal law enforcement would be preempted by the military,” warns the American Civil Liberties Union (ACLU):

Although Subsection 1031(c) of the NDAA states that it does not apply to American citizens or lawful residents “on the basis of conduct taking place within the United States except to the extent permitted by the Constitution,” important loopholes remain for citizens who are mere suspects to be imprisoned without charge or trial. In particular, American citizens and lawful residents suspected of wrongdoing outside the United States could be indefinitely imprisoned, even if apprehended within the United States itself. The “determination” that someone can be indefinitely imprisoned would not require proof of guilt, but instead would be decided entirely by Executive Branch officials following some future agency regulations.

These American citizens and other civilians picked up in the United States, but never charged 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 along with non-citizen civilians who had no role in the 9/11 attacks or any actual hostilities, and who would not be detainable under the laws of war.

As history has taught us, the government is an eager exploiter of loopholes. Just look at the  USA PATRIOT Act’s provision allowing for delayed-notice, or “sneak-and peek,” warrants, used in 1,618 drug cases– and only 15 terrorism cases, the only ones supposedly covered by the PATRIOT Act.

Sen. Mark Udall (D-CO) introduced an amendment that would have killed the objectionable provisions in the NDAA, but it was defeated by a vote of 61-37. Then, by a tally of 88-12, the Senate voted Wednesday to limit debate on the measure and proceed to a final vote, which could take place as early as tomorrow.  And while the bill has strong bipartisan support, it also has strong opponents in both parties– and President Obama has threatened to veto it if it reaches his desk. It’s not every day that you see Rand Paul, one of the most conservative members of the Senate, agreeing with President Obama, but here the Tea Party favorite is expressing his vehement disapproval of the bill:

“It’s not enough just to be alleged a terrorist,” Paul said in complete harmony with the President, the American Civil Liberties Union and Moral Low Ground. “That’s part of what due process is– deciding, are you a terrorist? I think it’s important that we not allow U.S. citizens to be taken.”

Sen. Dianne Feinstein (D-CA) compared the measures to the rounding up and internment of Japanese-Americans in concentration camps for much of World War II. “Congress is essentially authorizing the indefinite imprisonment of American citizens, without charge,” she said. “We are not a nation that locks up its citizens without charge.”

Prominent U.S. officials, including Defense Secretary Leon Panetta, Director of National Intelligence James Clapper and FBI Director Robert Mueller have joined President Obama in denouncing the controversial provisions of the bill.

There is, of course, the question of whether such measures are even constitutional. The answer would seem to be no, but as Daphne Eviatar of Human Rights First told Democracy Now!, “It could be challenged constitutionally, but by the time something like this gets to the Supreme Court and we get a decision, it could be years.”

Here is the actual text of Sections 1031 and 1032 of Senate Bill S.1867:



To authorize appropriations for fiscal year 2012 for military activities of the Department of Defense, for military construction, and for defense activities of the Department of Energy, to prescribe military personnel strengths for such fiscal year, and for other purposes.


NOVEMBER 15, 2011

Mr. LEVIN, from the Committee on Armed Services, reported the following original bill; which was read twice and placed on the calendar.


To authorize appropriations for fiscal year 2012 for military activities of the Department of Defense, for military construction, and for defense activities of the Department of Energy, to prescribe military personnel strengths for such fiscal year, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,


This Act may be cited as the ‘‘National Defense Authorization Act for Fiscal Year 2012’’.

Subtitle D—Detainee Matters


(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 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.


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).



(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 co ordination 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 States.


(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.


(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 States.

(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 ongoing session.

(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 sub section (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.


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One Comment

  1. Brandt HardinDecember 1, 2011 at 12:17 pmReply

    Under the guise of fighting terrorism, the Patriot Act was adopted WITHOUT public approval or vote just weeks after the events of 9/11. Such an unconstitutional set of laws should be abolished seeing as they violate human rights and due process. A mere 3 criminal charges of terrorism a year attributed to this act, which is mainly used for no-knock raids leading to drug-related arrests without proper cause for search and seizure. The laws are simply a means to spy on our own citizens and to detain and torture dissidents without trial or a right to council. You can read much more about living in this Orwellian society of fear and see my visual response to these measures on my artist’s blog at

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