The Issue is Not the NDAA, it’s the AUMF

A group of Rhode Island State Representatives (Dan Gordon, R-Portsmouth/Tiverton/Little Compton; Jack Savage R-East Providence; Raymond Hull, D-Providence; John Carnevale, D-Providence/Johnston and Donald Lally, D-Narragansett/North Kingstown/South Kingstown) has introduced a resolution into the RI House (H7916) condemning the section of the Federal Government’s 2012 National Defense Authorization Act (NDAA) pertaining to the detention of persons operationally connected to “al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners” by the Armed Forces of the United States.
The primary focus of the proposed House resolution is NDAA section 1021 which “affirms” that Presidential authority under the 2001 Authorization to Use Military Force (AUMF) “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”. The 2001 AUMF was passed for the purpose of allowing sustained military action in response to the September 11 attacks of that year.
The “covered persons” of subsection 1021(b), according to the text of the NDAA, are…

(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.
…though subsection 1021(e) adds this qualifier…
(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.
This is clearly less than a complete prohibition on the President or the Armed Forces which he commands using their war-powers to detain someone within the borders of the US.
The proposed resolution in the RI House contrasts the language of section 1021 with that of the next section (1022), which addresses persons “captured in the course of hostilities authorized by the Authorization for Use of Military Force”. Subsections (b)(1) and (b)(2) of section 1022 exclude US citizens and lawful residents from its jurisdiction in no uncertain terms…
(1) 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.
The RI House resolution takes exception to the difference between the strong language of 1022(b) versus the weaker qualification embodied 1021(e), averring that it implies an intent to give the executive branch the power to deal with section 1021’s “covered persons” who are also US citizens, at home, outside of normal civilian policing rules and court procedures. I can agree that this is probably true.
Thinking through this issue takes us into a yuck-area of government and the law that people living in a peaceful society don’t like to contemplate, but that does need to be considered and prepared for. What is or isn’t allowed, during a shooting war, if an American citizen decides to collaborate with the enemy, be it inside or outside of the borders of the United States?
In the case of a full-on declared war, in the way that declared wars were thought about up until at least World War II, there was a straightforward principle that could be applied: Whatever response would be allowed against enemy soldiers who crossed the border would also be justified against a citizen pursuing the same goals as that enemy. There would not be one set of rules for a non-citizens organized to violently impose their will on the people of the United States, but a lighter set of rules for US citizens who joined in their efforts. And in at least one case from World War II, this principle was directly applied, when a US citizen (Hans Haupt) who had trained with German saboteurs was deployed into the United States, then captured, tried by a military tribunal and executed. The use of a military tribunal to impose a death sentence in Haupt’s circumstance was upheld by the United States Supreme Court in its ruling in Ex Parte Quirin.
But reasonably erasing the boundary between a hostile foreign army and its domestic collaborators necessitates taking another boundary very seriously, the one between war and peace. The idea of giving the American President increased powers during wars has always assumed an unambiguous line between peace and a declared state of war, and a declared wars are not supposed to be permanent states of affairs; they are supposed to be the exceptions, with beginnings and endings that can easily be identified. Staying with the World War II example, when war was declared against Japan and Germany, it was implicitly understood that at some time in the future, something would happen to bring the state of war to an end, something that was more than just a paper declaration. Either leaders from one side who possessed real authority to command the forces doing the fighting would say “we surrender” and issue orders, that would be followed, for their troops to lay down their arms, or parties on both sides would agree to some form of truce. At that point (maybe with an assist from the ratification of a peace treaty or a similar formality), extra powers granted to the executive branch associated with a declaration of war would vanish.
In the case of the present AUMF, what the events are that will signal to everyone that a state of war has ended is far from clear. In part, that is because of how the enemy is defined in the AUMF…
(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
With potential future attacks from “organizations” or even individuals part of the justification for the AUMF, an act from a leader or a group of leaders (for example, Osama Bin Laden catching a hailstorm of bullets with his head) that would make it clear that the conditions necessitating the AUMF have passed is difficult to define. Indeed, it is not even certain whether some of the “organizations” associated with Islamist terrorism have a command and control structure that would allow for any set of leaders to offer an efficacious surrender.
For people concerned about how aggressively pursuing enemies foreign potentially increases Presidential power at the expense of domestic liberty, in the end, the issue of importance isn’t what the 2012 NDAA affirms, building on the grant of authority in the AUMF. The issue is the AUMF itself. The NDAA’s reaffirmation of the AUMF doesn’t impact much of anything, and a legislative victory that changed the NDAA but ignored the AUMF wouldn’t diminish the increased war-powers that have been granted to the President by Congress. At some point, Congress is going to have to grapple with the issue of whether conditions that justify the AUMF remaining in force still exist, or whether it needs to be repealed or superseded by new legislation.

0 0 votes
Article Rating
Subscribe
Notify of
guest
22 Comments
Oldest
Newest Most Voted
Inline Feedbacks
View all comments
Rep. Dan Gordon
Rep. Dan Gordon
10 years ago

As I am short on time today to explain the true impact of NDAA in this forum, I offer this astute explanation by Mr Trautman. Also of note is the key word in the NDAA, “belligerent”. There is no definition of the word, nor does it say who will make that determination. There are currently 11 states, including Rhode Island who was the first to recognize the problem and draft legislation, that have similar bills in play. Virgina passed theirs in a veto proof super majority and awaiting the governor’s signature. It has also passed the two chambers in Utah. Additionally, a number of municipalities have have passed anti-NDAA legislation. US Congressman Dennis Ross (R-FL) confirmed to me that congress recognized there was a problem with the bill language and that an amendment had been submitted to make the intent clear. However, the amendment with 51 co-sponsors, stalled in committee and the original bill went forward. Even Senator Whitehouse acknowledged that were language problems but declined to file legislation to make the corrections. I have 43 cosponsors on my resolution. This NDAA is recognized as constitutionally problematic across the political spectrum, from Republicans to Democrats to Progressives. We’re not ALL wrong. January 18, 2012 When Power is Unaccountable Why the NDAA is Unconstitutional by BRIAN J. TRAUTMANEach year, Congress authorizes the budget of the Department of Defense through a National Defense Authorization Act (NDAA). The NDAA of 2012, however, is unlike any previous ones. This year’s legislation contains highly controversial provisions that empower the Armed Forces to engage in civilian law enforcement and to selectively suspend due process and habeas corpus, as well as other rights guaranteed by the 5th and 6th Amendments to the U.S. Constitution, for terror suspects apprehended on U.S. soil. The final version of the bill… Read more »

Warrington Faust
Warrington Faust
10 years ago

We have had sad experience with this sort of thing before, notably the trial of the 7 Nazi agents landed on Long Island during WWII.
I no longer have all of the facts at my fingertips, but it was truly appalling. The FBI concealed evidence, the Supreme Court turned it’s back until they were executed, the President (FDR) exerted political force on the Supreme Court, (do not place your faith in Princes, they will claim expediency while others die at a distance) etc., etc.
I guess the short was that they should have been tried in civil courts. Instead, the entire east coast was declared a “War Zone” so that they could be tried by a military tribunal. It was a sad day for American justice. I think 3 were American citizens.
I am not usually impressed by Dr. Zinn, but I suppose even a stopped clock is right twice a day.

watchman tiverton
watchman tiverton
10 years ago

Why should we believe anything from the lips of Dan Gordon. a man who claimed to have been in combat when he never was, a man who had his facebook and twitter pages allegedly hacked. Dan Gordon is a failure as a rep and a disgrace as a man.

Sammy in Arizona
Sammy in Arizona
10 years ago

The alleged felon, Rep Dan Gordon, crossed over the border from borderline psychotic to full-fledged “Looney Tune” a long time ago
Mr Gordon, what did Anchor Rising do, to deserve your presence? ?

Rep. Dan Gordon
Rep. Dan Gordon
10 years ago

Andrew, Thank you for the thoughtful response, and the points in your article are well taken. Indeed the root of the problem DOES lie in the AUMF, further propagated by the Patriot Act, and now NDAA. One reason to strike at this branch rather than the root, is time. The passage of which makes repeal exceedingly difficult. An example would be Roe v. Wade. Clearly unconstitutional and agenda based legislation, but as the clock ticked, the Overton Window incrementally opened to the point where a plethora of case law and public opinion has probably rendered it incapable of being closed. Therefore, a campaign to beat back fresh legislation attempting to solidify the afore mentioned precedents, is the most politically expedient way to raise awareness and halt the encroachment on civil liberties, in this case. Now, the particulars in relation to your points on true enemy combatants in a declared war to access civilian courts for redress is another matter. And that is why we must turn to the Constitution where clear-cut delineations are made. Thus the necessity of Congress to make a Declaration of War after careful consideration and meaningful debate. An executive decision to ‘declare war’ on an ideology (terror) rather than a uniformed force is where we we stumble into the murkiness, opening the door to politically motivated interpretation. No good. I do have an excellent, and superior to mine, resolution that was crafted specifically for Rhode Island by friends of mine; a coalition of constitutional scholars and attorneys that I can post here for reference, if you like. Unfortunately, I received the draft after I had shopped my version, gaining the 43 co-sponsors. It wouldn’t be practical, or probable, to sell a new version after the fact. Thank you Andrew for being a catalyst in discussion on… Read more »

watchman
watchman
10 years ago

Andrew, I am a libertarian and a Marine who is disgusted by the actions and lies that Mr. Gordon has told about his service, not to mention the fact that he has little to no contact with anyone in his district, has no job and no honor or moral compass to speak of. He is a twitter warrior who seems to think that people will believe his lies and conspiracies about his twitter and facebook being hacked by someone who writes and thinks just like him. Enjoy him now because his political career will be very short lived.

joe bernstein
joe bernstein
10 years ago

Rep.Ray Hull is my state rep.I’ve known him about 24 years or so.He’s been a Providence police officer(Sergeant presently)for about 26 years.
Ray is about as level-headed a person as I’ve met.He,like I,knows the dangers of excessive authority being exercised by the government,particularly against US citizens.
I never thought the Patriot Act should have applied to US citizens except in rare circumstances after review by a FISA court.
I’m not a lawyer,but I have little faith in attempts to rein in personal liberty in the name of security.
Am I a hypocrite because I ask for enforcing existing immigration laws?No-because such laws are contemplated in the Constitution(naturalization of aliens”)and are directed at persons who have no right to enter or remain here(or,of course those who do)and are not the result of a nayional panic attack in the wake of 9/11.
That could have been prevented by utilizing the laws which existed at the time.

Warrinton Faust
Warrinton Faust
10 years ago

In my example of the WWII Nazi’s, I left out the politics. Declassified documents, and contemporary journals indicate that FDR wanted them dead, to please the American people. Since they had only been in the country 2 days, had not proceeded with any plan and were almost immediately turned into the FBI by one of their number, it was feared that a civilian court would not execute them. So, the Constitution was stood on its head to obtain the death sentences FDR demanded.
The jurisprudential point to be overcome was that “war zone”, or not, the civil courts were still functioning. It was a usurpation of powers to try criminals in military tribunals.
BTW, if anyone has seen the old B&W movie of their capture by the FBI, it is pure propaganda. “Facts” are not allowed to get in the way of a good story. One of the spies went immediately to the FBI, who initially tossed him out. After repeated attempts, they believed him. This info was suppressed at trial, although a deal was struck where he got 20 years at hard labor rather than execution.
Could history repeat itself?

Warrington Faust
Warrington Faust
10 years ago

Posted by Andrew
“The President wanted enemy combatants dead during a war? Shocking. ”
Well, they were in custody. Following the logic you present, we should have shot all the POW’s.
My point is that there was a legal system in place, and the President decided to subvert it. The court he had “packed” agreed to delay hearing an appeal until they were dead, the FBI agreed to conceal evidence.

joe bernstein
joe bernstein
10 years ago

Warrington-Andrew is correct-we summarily executed German infiltrators during the Battle of the Bulge if they were out of uniform.It was permissible under the rules of war.
The famous photo of General Loan executing an NVA Major in plainclothes during the Battle of Tet in 1968 is another example of a perfectly legal action.That officer had massacred a South Vietnamese officer’s family while in mufti.
Executing uniformed enemy combatants captured in battle is a war crime.Executing plainclothes operatives is not.

Monique
Editor
10 years ago

“The famous photo of General Loan executing an NVA Major in plainclothes during the Battle of Tet in 1968 is another example of a perfectly legal action.That officer had massacred a South Vietnamese officer’s family while in mufti.”
Funny, those details never seem to make it into that photo’s caption. After seeing it for decades, it was only recently that I learned that it was not the photo of a North Vietnamese officer shooting an innocent South Vietnamese civilian.

Warrington Faust
Warrington Faust
10 years ago

“No, ununiformed saboteurs are not entitled to the POW treatment that uniformed soldiers are. And even uniformed soldiers don’t have a right to have civilian courts decide their fate.” Joe and Andrew, I am not suggesting that they should have walked. My whole point is caution in who you give powers to. You are overlooking that it did not occur in a war zone. The East Coast (all of it) was declared a “war zone” for the purposes of their trial. Following their trial, it was no longer a war zone.(“War Zone” is not a descriptor, it is a legal term. Civilians are supppressed, many constitutional rights disappear. It is martial law) The FBI wanted some good press, so it convinced the public that they had “found” the Germans. They would not permit evidence in the trial that one of the Germans was an American citizen who went directly to an FBI office, turned himself in and named all of the other Germans and their locations. He got 20 years hard labor. The examples that you guys give all take place in a “War Zone”. This did not. That was inconvenient to the politcal powers,so they created one, then did away with it when it no longer suited them. Clearly unconstitutional, Article I, Section 9; Clause 3 is “No Bill of Attainder or ex post facto Law shall be passed”. That is why the Supreme Court agreed not to touch it. If it had been handled correctly, there would have been precedent on what to do with the “American Taliban”. Instead we had “agony columns” in the paper over what to do. Joe posts: Executing uniformed enemy combatants captured in battle is a war crime. And who was tried for the summary executions of the “guards” at Dachau and Treblinka?… Read more »

joe bernstein
joe bernstein
10 years ago

Warrington-it was “Band of Brothers”.
FWIW we had the Korean White Horse Division on our perimeter in Vietnam.
I won’t tell you what they did,but it sure cut down on infiltrator attacks.

Warrington Faust
Warrington Faust
10 years ago

Posted by joe bernstein “Warrington-it was “Band of Brothers”. FWIW we had the Korean White Horse Division on our perimeter in Vietnam. I won’t tell you what they did,but it sure cut down on infiltrator attacks.” Joe, the Turkish troops in Korea gained the same reputation. Their claim to fame was that they amputated thieves. But all we are saying is “might makes right”. Or maybe, in certain circumstances, we all choose not to notice because it is effective. The Germans captured were not in a war zone, they posed no immediate threat. When we captured communist spies during the cold war, did we shoot them out of hand? Were the Rosenbergs shot out of hand? As Bush said “Peace is not the absence of war, it is the presence of justice.” In this country, we have a justice system. Every time we agree to wink at it (i.e. castrate child molesters, lynch blacks) we weaken it. If we wink often enough, pretty soon we don’t see it at all. I am not saying saboteurs, spys, etc should get off easily. What I am saying is that we had a system of justice that didn’t suit the political desires of the President and the FBI. So, they decided to ignore it. It is probably better to say they subverted it. I think this poses a greater threat to America than any damage done by saboteurs. I think the concerns expressed by others here about this statute means they agree with me. “First they came for the communists, and I didn’t speak out because I wasn’t a communist. Then they came for the trade unionists, and I didn’t speak out because I wasn’t a trade unionist. Then they came for the Jews, and I didn’t speak out because I wasn’t a… Read more »

Warrington Faust
Warrington Faust
10 years ago

Poated by Andrew:
“Frankly, your assertion that saboteurs dropped off in the United States by the German navy by U-boat, and who brought their own explosives with them, weren’t intent on committing acts of war and posed no immediate threat is bizarre.”
Andrew, I have never made any such assertion. Read a little more slowly, or try the decaf.
Remember that our Civil War was a war between two separate countries. We settled a lot of issues. So, even in time of war, if the Civil Courts are still operating and a crime occurs within their jurisdiction, that crime is to be handled by the civil courts. That is the law. To toss it aside for political convenience is not what we are about.
This article concerns powers granted to the President under NDAA and the AUMF. My point is that when the established law didn’t suit Mr. Roosevelt, he had no problem with subverting it. Worse, many members of the government assisted him.
I have no where suggested that the German saboteurs should have walked. If they were tried in civil courts, they would have been charged with a capitol offense. Rather than a fictional account created by the FBI, the truth would have been readily available to the Americans.

Warrington Faust
Warrington Faust
10 years ago

Posted by Andrew:
“First of all, at you wrote at 9:49 yesterday “they posed no immediate threat”. If that doesn’t refer the German saboteurs, then to whom does it refer?”
JC, Andrew, read a little more slowly. They were captured almost immediately, they were disarmed, they were under arrest in jail cells, “they posed no immediate threat”.

Warrington Faust
Warrington Faust
10 years ago

Posted by Andrew:
“First of all, at you wrote at 9:49 yesterday “they posed no immediate threat”. If that doesn’t refer the German saboteurs, then to whom does it refer?”
JC, Andrew, read a little more slowly. They were captured almost immediately, they were disarmed, they were under arrest in jail cells, “they posed no immediate threat”.

Show your support for Anchor Rising with a 25-cent-per-day subscription.