The War on Terror went full-throttle after the 9/11 attacks on the World Trade Center and the Pentagon. Legislation was written to give the President the authority to combat terrorists.

The Authorization for the Use of Military (AUMF) in 2001 was unveiled as a response to the terror attacks. It stated “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.”

On Nov. 13, 2001, President George Bush signed a military order to detain non-US citizen enemy combatants and try them under military tribunals.

Soon after, the AUMF was expanded in 2002, to “legalize” the preemptive war in Iraq. The propaganda basis for the preemptive strike was that Iraq harbored terrorists, had weapons of mass destruction, and was hostile to the U.S.

Detainment was determined to be constitutional and an appropriate “use of force” by the Supreme Court and Congress, including detaining those deemed enemy combatants and hostile to the U.S. and its interests. Many detainees were and are sent to U.S. Naval Base at Guantanamo Bay, Cuba.

As a way of protest, detainees at Guantanamo used a writ of habeas corpus to challeneg the legality of their detainment as a prisoner of war under the Geneva Convention.

What is habeas corpus? Amnesty International explains that habeas corpus under the Geneva Convention, “guarantees people seized and detained by the government the right to question the grounds of their detention before an impartial tribunal and request the government to provide a legal and factual basis for the detention…A petition for habeas corpus asks whether or not a person should be detained based on available legal evidence and prevents indefinite detention without charge.”

On April 28, 2004 the Supreme Court heard arguments of Hamdi et al versus Rumsfeld. Hamdi, an American citizen who was taken prisoner as an enemy combatant in Afghanistan.

“The appeals court held that, assuming that express congressional authorization of the detention was required by 18 U. S. C. 4001(a) which provides that no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an ‘Act of Congress’– the AUMF is necessary and appropriate force language provided the authorization for Hamdi’s detention”

In the case of Rasul et al vs. Bush, 14 detainees petitioned their detainment with a writ of habeas corpus. They alleged, “that they had never been combatants against the United States or engaged in terrorist acts, and that they have never been charged with wrongdoing, permitted to consult counsel, or provided access to courts or other tribunals.” The District Court said that due to Johnson v. Eisentrager, aliens detained outside United States sovereign territory might not invoke habeas relief.” However as Amnesty International reports, “The Supreme Court rules that U.S. courts have jurisdiction to hear habeas corpus petitions filed by or on behalf of foreign nationals detained at Guantanamo Bay.”

In 2005, the Detainee Treatment Act section 1005e states, “no court, justice, or judge shall have jurisdiction to hear or consider – (1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba”. It also authorized enhanced interrogation.

Later, on March 28, 2006, Hamden versus Rumsfeld filed a writ of habeas corpus to the Supreme Court after he was detained as an enemy combatant by the military. Hamden, a Yemeni, was captured in Afghanistan and was transported and held at Guantanamo Bay for detainment. He asserted to the federal court, “that the military commission lacks authority to try him. The Federal Court ruled in Hamden’s favor. The Circuit Court of Appeals for the District of Columbia reversed the decision finding that the Geneva Convention could not be enforced in federal court and that the establishment of military tribunals had been authorized by Congress and was therefore not unconstitutional.”

In 2006, the Military Commissions Act was passed to not only prosecute terrorists for terrorist activities against the U.S., but for ordinary crimes during occupation by the military or during martial law. This act stripped right to petition under a writ of habeas corpus. “No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories.”

This was later found unconstitutional in the case of Boumediene v. Bush.

On December 31, 2011, the National Defense Authorization Act (NDAA) was enacted into law to give the President authority to further “use military force” and detain enemy combatants at US Naval Station Guantanamo Bay.

In the election of 2008, then Senator Obama stood on the platform of closing down the enemy combatants’ detainment camps at Guantanamo Bay. In 2009 he halted the Military Commissions, only to reinstate them under the Military Commissions Act of 2009. He once again talked of closing down Guantanamo during his re-election campaign. Shutting down the detainment camps at Guantanamo Bay is just propaganda used for the re-election campaign. The NDAA legalizes this form of detainment specifically at the U.S. Naval Station, Guantanamo Bay. The NDAA outlines the role of the Secretary of Defense in relation to US Naval Base Guantanamo Bay, the protocols the Secretary must at a minimum implement, and what the 2012 budget will fund and not fund. The fiscal year 2013 NDAA updates the funding of the counter-terrorism section by striking out 2012 and replaces it with 2013.

In the Guantanamo sections spanning from 1021 to 1028, the Act defines enemy combatants to be detained at Guantanamo Bay in three different ways. In section 1021 defines which continues the authority of the military can detain enemy combatants under the AUMF. The act brands an enemy combatant as a “covered persons” defined as, “(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.” A covered person is only applicable to non-U.S. citizens or residents but is not prohibited to U.S. citizens or residents.

However, the President has the authority to waive the requirements of a covered person for reasons of national security. as seen in section 1022a(4). The definition for “covered person” is more of a guideline and can be changed any time the President wants.

In section 1023b of the NDAA, it describes the role of the Secretary of Defense as he periodically reviews detainees for further detention. The act states, that the review is not used to determine the legality of detainment but to determine the status of detainment. Factors used to determine status for further detainment are: “(A) the likelihood the detainee will resume terrorist activity if transferred or released; (B) the likelihood the detainee will reestablish ties with al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners if transferred or released; (C) the likelihood of family, tribal, or government rehabilitation or support for the detainee if transferred or released; (D) the likelihood the detainee may be subject to trial by military commission; and (E) any law enforcement interest in the detainee.”

The act states, “periodic review process applies to any individual who is detained as an unprivileged enemy belligerent at United States Naval Station, Guantanamo Bay, Cuba, at any time.” The act does not use “covered persons” in this section. “Unprivileged enemy belligerent” is used and is not defined. Unprivileged enemy belligerent is a vague definition that could be used for American citizens, or U.S. residents, or those not detained by the military but other entities like local and state law enforcement.

Section 1024a requires the SecDef to report on the status the detainees present in 90 days of enactment of NDAA. This section is to “provide for the following in the case of any unprivileged enemy belligerent who will be held in long-term detention under the law of war pursuant to the Authorization for Use of Military Force.” A military judge will preside over this tribunal. The detainee can elect to have a military counsel determine his/her status. This may also mean that the current detainees have no threat status assessed at Guantanamo since long-term detention is not defined.

However, the SecDef is not required to apply section 1024a in the case of a person for whom habeas corpus review is available in a Federal court. Therefore, the status of any individual detained at Guantanamo that files a writ of habeas corpus can be denied a status. The status is the grounds the government uses to determine its right to detain someone. Instead of challenging habeas corpus constitutionality, this might be used to eliminate the responsibility of the government to give enough evidence to further detain an individual. It also eliminates an impartial commission required by the Geneva Convention for prisoners of war. Some have insisted that inserting that a detainee has the right to military counsel and ability to petition a writ of habeas corpus is one of the better parts of the NDAA since previous attempts by the government have been used to eliminate an enemy combatant’s ability of petitioning the government.

In section 1025a, the SecDef shall implement protocols for communication with detainees in and out of Gitmo including legal representation. As we have seen with Bradley Manning, who has been detained far past the requirements of a speedy trial, documents and evidence delayed in the trial due to national security risks. Other forms of communication includes: meetings, mail, phone calls, and teleconferences is monitored, limited, and reviewed based on risks to national security.

In section 1026, 1027, and 1028, it states that no funds from the fiscal year 2012 from the DoD maybe used to modify or build housing to detain enemy combatants in any other place other than Guantanamo Bay on U.S. and it’s possessions. Also, no funds maybe used to transfer, release or assist in the transfer or release of “individuals detained at Guantanamo” to the US. Additionally, no funds maybe used to rendition detainees to other countries unless the SecDef submits a certification to Congress. Without funds, this Act prevents detainees from being released or transferred inside or outside of the U.S. NDAA firmly outlines that Guantanamo is and will ever be used for detainment for enemy combatants under the AUMF. However, funds are not prohibited in the construction, modifying, or transferring to Guantanamo Bay.

Section 1029 outlines how detainees will be prosecuted. The Attorney General will consult with SecDef/Director of National Intelligence (DNI) on whether to prosecute covered persons in a federal court or military tribunal, held in civilian or military custody but this makes no mention to unfortunate enemy belligerent or individual detained at Guantanamo. This might mean that only those captured by the military. and not law enforcement. or other forces. may be eligible to a federal court or military tribunal.

Congress and the Federal Courts have interpreted the President’s authority to detain individuals as a use of military force long before the NDAA. However, the NDAA sanctions the use of Guantanamo as the only detainment facility and furthers prevents the closure of this detainment camp. The 2013 NDAA will continue this prohibition of funding. This document is vaguely written so that it maybe used to detain U.S.citizens or U.S. residents. However, an American citizen has challenged the detainment from the DoD. Hamdi was not released. Will nullifying NDAA stop further Americans from being detained? Maybe not, but it at least it will eliminate local law enforcement to assist in the detainment of individuals on U.S. soil. Nullification laws like the one in Texas will further prevent military from detaining citizens.

One of the few members of Congress willing to challenge the constitutionality of the NDAA is Senator Rand Paul who stated, “A citizen of the United States who is captured or arrested in the United States and detained by the Armed Forces of the United States pursuant to the Authorization for Use of Military Force (Public Law 107–40) 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.”

‘Amending the current NDAA law would remove the military from policing citizens of the U.S., and it would return that power to the states to police its own residents. But, as always, Rand Paul was one of the few standing up to the rest of Congress, and the task at hand will ultimately be rested on the States to nullify the NDAA.

Kelli Sladick

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