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Daily Archives: December 1, 2011

S.1253 is a Despicable Piece of Legislation

Update 12.02.2011:

The Senate passed the “National Defense Authorization Act for Fiscal Year 2012” {S.1867} by a 93-7 majority on Thursday 12/1/2011. The House is considering house resolution H.R.1540 a related bill at this time; his bill has text inserted from S.1867.

The voting record for the (Feinstein Amdt. No. 1126) the purpose was as follows:

To limit the authority of the Armed Forces to detain citizens of the United States under section 1031

The text of section 1031 also appears in S.1253. However, the text of S.1867 says nothing of so-called “unprivileged enemy belligerent(s).” It does describe, in the exact same place as the belligerent text was, the “covered person.”

The House Resolution H.R.1540 will be this weekends homework, if the House does not work very hard on Saturday December 3, 2011 to pass it. Do not wait for the next post, contact your House Representatives and tell them what you think about the Armed Services being deployed on American soil in the role of military police with the authority to detain American citizens. They can be reached via The House of Representatives Directory.

Original Post December 1, 2011:

Just what exactly is an “unprivileged enemy belligerent?”

. . . one of the first things that should be explained is the new term unprivileged enemy belligerent. It is defined in the Military Commissions Act of 2009 (FY10 Defense Authorization Bill Section 1031) as:

Definition of Unprivileged Enemy Belligerents (Those Subject to a Military Commission)

  • The main purpose of the MCA was to create a forum in which to try “alien unlawful enemy combatants” for violations of the law of war.
  • This bill changes that label to “unprivileged enemy belligerent,” defining this as an individual who:
  1. has engaged in hostilities against the United States or its coalition partners; or
  2. has purposefully and materially supported hostilities against the United States or its coalition partners.Barnett, Gary D.

Alright then, that is a broad brush with which to paint a suspect. The definition has not changed or been modified. What does it mean for a citizen, born in the United States, to be re-classified as an unprivileged enemy belligerent? What process would deprived a citizen of his/her rights prior to a trial by jury of her/his peers?

Even when incarcerated pending trial, an American citizen has rights and some restricted freedoms to go about life’s business. If by the mere act reclassifying an American citizen upon arrest, they loose  their rights and privileges they become ineligible to have “standing” in the courts. In other words, no judge or jury is obligated to hear their complaint or defense. But the military still can and according to S.1253, will.

The justification {translate: excuse} for these types of legislative propositions has been to protect American citizens from further attacks on our country.  Is a paradox beginning to appear?

It is entirely possible proposals like this will circumvent constitutional rights spelled out in the first amendment, especially;

  1. Freedom of Speech, Press, Religion and PetitionCongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
  1. Right to keep and bear arms A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.
  1. Right of search and seizure regulated The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
  1. Provisons concerning prosecution No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.
  1. Right to a speedy trial, witnesses, etc. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
  1. Right to a trial by jury In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
  1. Excessive bail, cruel punishment Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
  1. Rule of construction of Constitution The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The following is an excerpt from S.1253 which spells out the detainment issues debated in the Senate.


National Defense Authorization Act for Fiscal Year 2012 (Reported in Senate – RS)

Subtitle D–Detainee Matters


    (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 on the basis of conduct taking place within the United States except to the extent permitted by the Constitution of the United States.

What are they thinking? Perhaps keeping people out of trees in Los Angeles would be more efficient if after they were removed, they could be prevented from re-occupying by indefinite detention?

Call to Action: Urge President Obama to veto this bill and prevent us from sliding further down a very slippery slope.

Contact the White House

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