What Does NDAA REALLY Say?

  There is much discussion happening on and off the internet concerning the National Defense Authorization Act, everywhere I look people are panicking about this “new” legislation. The National Defense Authorization Act has been in use for nearly fifty years to detail budgets and expenditures for the US Department of Defense. This is not new.

   As nearly anyone with an internet connection is aware, the controversy in this particular NDAA lies in the fear of indefinite detention of US citizens accused of having terrorist ties and/or disagreeing with the government. Obviously, even the mention of indefinite detention of US citizens is more than enough to warrant a double take and rouse concern. Throughout the last decade we have all heard the stories of those accused of being “terrorists”, those denied the ability to utilize commercial flights and so on, even a case or two in which the accused citizen has been killed. We see blatant violations of numerous constitutional amendments on a daily basis, we all know the America of years past is gone. The question is, where do we stand now? Is the 2012 NDAA really a direct threat to us? The best suggestion I can make is that you read it for yourself and decide.

   Let’s look at these highly debated portions. The text below was taken from http://www.gpo.gov/fdsys/pkg/BILLS-112s1867es/html/BILLS-112s1867es.htm , it is the current wording of this legislation, sections 1031-1033, at of the time of this article’s writing.

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 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.

    (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 States.

    (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 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 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.

 

SEC. 1033. REQUIREMENTS FOR CERTIFICATIONS RELATING TO THE TRANSFER OF DETAINEES AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA, TO FOREIGN COUNTRIES AND OTHER FOREIGN ENTITIES.

 

    (a) Certification Required Prior to Transfer.–

            (1) In general.–Except as provided in paragraph (2) and subsection (d), the Secretary of Defense may not use any amounts authorized to be appropriated or otherwise available to the Department of Defense for fiscal year 2012 to transfer any  individual detained at Guantanamo to the custody or control of  the individual’s country of origin, any other foreign country,  or any other foreign entity unless the Secretary submits to Congress the certification described in subsection (b) not later than 30 days before the transfer of the individual.

            (2) Exception.–Paragraph (1) shall not apply to any action taken by the Secretary to transfer any individual detained at Guantanamo to effectuate–

                    (A) an order affecting the disposition of the individual that is issued by a court or competent  tribunal of the United States having lawful jurisdiction (which the Secretary shall notify Congress of promptly after issuance); or

                    (B) a pre-trial agreement entered in a military  commission case prior to the date of the enactment of  this Act.

    (b) Certification.–A certification described in this subsection is a written certification made by the Secretary of Defense, with the concurrence of the Secretary of State and in consultation with the Director of National Intelligence, that the government of the foreign country or the recognized leadership of the foreign entity to which the individual detained at Guantanamo is to be transferred–

            (1) is not a designated state sponsor of terrorism or a designated foreign terrorist organization;

            (2) maintains control over each detention facility in which the individual is to be detained if the individual is to be

        housed in a detention facility;

            (3) is not, as of the date of the certification, facing a threat that is likely to substantially affect its ability to

        exercise control over the individual;

            (4) has taken or agreed to take effective actions to ensure that the individual cannot take action to threaten the United

        States, its citizens, or its allies in the future;

            (5) has taken or agreed to take such actions as the Secretary of Defense determines are necessary to ensure that the individual cannot engage or reengage in any terrorist activity; and

            (6) has agreed to share with the United States any information that–

                    (A) is related to the individual or any associates of the individual; and

                    (B) could affect the security of the United States, its citizens, or its allies.

    (c) Prohibition in Cases of Prior Confirmed Recidivism.–

            (1) Prohibition.–Except as provided in paragraph (2) and subsection (d), the Secretary of Defense may not use any amounts authorized to be appropriated or otherwise made available to the Department of Defense to transfer any  individual detained at Guantanamo to the custody or control of  the individual’s country of origin, any other foreign country, or any other foreign entity if there is a confirmed case of any individual who was detained at United States Naval Station, Guantanamo Bay, Cuba, at any time after September 11, 2001, who was transferred to such foreign country or entity and  subsequently engaged in any terrorist activity.

            (2) Exception.–Paragraph (1) shall not apply to any action  taken by the Secretary to transfer any individual detained at Guantanamo to effectuate–

                    (A) an order affecting the disposition of the individual that is issued by a court or competent tribunal of the United States having lawful jurisdiction (which the Secretary shall notify Congress  of promptly after issuance); or

                    (B) a pre-trial agreement entered in a military commission case prior to the date of the enactment of this Act.

    (d) National Security Waiver.–

            (1) In general.–The Secretary of Defense may waive the applicability to a detainee transfer of a certification requirement specified in paragraph (4) or (5) of subsection (b) or the prohibition in subsection (c) if the Secretary, with the concurrence of the Secretary of State and in consultation with the Director of National Intelligence, determines that–

                    (A) alternative actions will be taken to address the underlying purpose of the requirement or  requirements to be waived;

                    (B) in the case of a waiver of paragraph (4) or (5) of subsection (b), it is not possible to certify that the risks addressed in the paragraph to be waived have been completely eliminated, but the actions to be taken  under subparagraph (A) will substantially mitigate such  risks with regard to the individual to be transferred;

                    (C) in the case of a waiver of subsection (c), the Secretary has considered any confirmed case in which an  individual who was transferred to the country subsequently engaged in terrorist activity, and the  actions to be taken under subparagraph (A) will substantially mitigate the risk of recidivism with regard to the individual to be transferred; and

                    (D) the transfer is in the national security  interests of the United States.

            (2) Reports.–Whenever the Secretary makes a determination  under paragraph (1), the Secretary shall submit to the  appropriate committees of Congress, not later than 30 days  before the transfer of the individual concerned, the following:

                    (A) A copy of the determination and the waiver concerned.

                    (B) A statement of the basis for the determination, including–

                            (i) an explanation why the transfer is in the national security interests of the United States; and

                            (ii) in the case of a waiver of paragraph  (4) or (5) of subsection (b), an explanation why it is not possible to certify that the  risks addressed in the paragraph to be waived have been completely eliminated.

                    (C) A summary of the alternative actions to be taken to address the underlying purpose of, and to mitigate the risks addressed in, the paragraph or subsection to be waived.

    (e) Definitions.–In this section:

            (1) The term “appropriate committees of Congress” means–

                    (A) the Committee on Armed Services, the Committee on Appropriations, and the Select Committee on Intelligence of the Senate; and

                    (B) the Committee on Armed Services, the Committee on Appropriations, and the Permanent Select Committee on Intelligence of the House of Representatives.

            (2) The term “individual detained at Guantanamo” means any individual located at United States Naval Station, Guantanamo Bay, Cuba, as of October 1, 2009, who–

                    (A) is not a citizen of the United States or a member of the Armed Forces of the United States; and

                    (B) is–

                            (i) in the custody or under the control of  the Department of Defense; or

                            (ii) otherwise under detention at United States Naval Station, Guantanamo Bay, Cuba.

            (3) The term “foreign terrorist organization” means any organization so designated by the Secretary of State under section 219 of the Immigration and Nationality Act (8 U.S.C. 1189).

    (f) Repeal of Superseded Authority.–Section 1033 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (Public Law 111-383; 124 Stat. 4351) is repealed.

 

   I am going to keep this short due to the length of sections 1031, 1032 and 1033. How do you feel about these pretty little additions? I feel this lays out some shaky ground, I do not feel that it is cause to build an underground fort and never again see the light of day. The common sense solution is to keep an eye on what is being written and declared legislation and keep in contact with your local government officials (even if you don’t like the government). As with every other issue, the problem here is that we all function as individual little, chaotic units shooting off in different directions rather than working as one force to remove control. Take from it what you will, but realize this will only get worse until we work together.

   I won’t tell you what to think, but I will show you the words and offer a chance for thought.

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