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Today's Show » Section 1031

marnesdad
2 years, 8 months ago
Caught David and his guest discussing the unConstitutionality of S.1867 and specifically the intent to authorize the military to detain United States citizens without trial, thus depriving them of their Constitutional rights. Let me first say that I agree with David and his guest -- that is a horrible affront to the Rights guaranteed by our Constitution. The good thing here is that S.1867 DOESN'T AUTHORIZE any of the things that David and his guest were discussing... Doesn't ANYONE read this stuff any more?? Section 1031 explains the authority for the United States military to detain "covered persons" pursuant to the authorization for military force (the war on terror). Covered persons are described in 1031's subsection (b)... which essentially says anyone involved in 9/11, al Qeada, the Taliban, or anyone attacking the US or our partners... 1031's subsection (c) says what we can do with 'covered persons' -- including detention. Section 1032 Explains the requirements for military custody, and explains that "covered persons", as described in section 1031, DOES NOT include United States citizens.
nav68
2 years, 8 months ago
Generally, I agree with you. However, as with all law promulagated by Congress, they leave an out. Sec. 1032(a)(1) states the requirement for the military to detain, then lists the covered persons. Section 1032(b) excludes U.S. citizens and legal resident aliens from the covered persons list. The catch is in 1031(a)(1), the requirement for the military to detain. It starts, "Except as provided in paragraph (4)...." Paragraph (4) states, "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." That exception can be stretched to include U.S. citizens/resident aliens. That doesn't mean that it will happen, but it is a door that is a little bit ajar.
nav68
2 years, 8 months ago
Paragraph (4) would cover the entire section, including the USC/RA part. That part relates to the covered persons who can be detained (or not), and that part falls under the waiver.
marnesdad
2 years, 8 months ago
No. That's not correct..... Paragraph (4) specifically says that the waiver is only applicable to the requirement detailed in paragraph (1). Paragraph (1) also makes reference to the exception in paragraph (4) -- the waiver. The waiver means that the Secretary of Defense and the DNI may waive the requirement for MILITARY jursidiction over detainees... meaning that they can turn over the detainee to civil authorities if it better serves national interests. The waiver does nothing to affect the applicability to US citizens in 1032(b)(1)
nav68
2 years, 8 months ago
The waiver refers to para 1, requiring the military to act in re covered persons under certain circumstances. The waiver is for para 1. Paragraph 1 states that the military shall "hold a person described in paragraph 2..." Paragraph 2 lists the covered persons and the circumstances in which the military can detain them. Paragraph 1 also states, "Except as provided in Paragraph (4)...." Paragraph (4) is the waiver. It means that the waiver applies to the military's obligation to detain the covered persons in the covered circumstances. Inasmuch as the U.S citizen/resident aliens are not considered covered persons, the waiver on covered persons could, at some point, throw USC's/RA's into the mix. The waiver thus bootstraps USC's/RA's. I know that it sounds odd, but laws are written that way in case someone needs to circumvent the intent at some time. Look at the law creating the CIA, the strict admonition that it not be involved in certain activities, especially domestically, then look at the loop hole that was left and how it was exploited out of all proportion to the law's intent. This crap happens all the time. If they'd wanted USC's/RA's completely protected, they'd have stated that any and all waivers on actions permitted under the law will not include USC's/RA's.
marnesdad
2 years, 8 months ago
"If they'd wanted USC's/RA's completely protected, they'd have stated that any and all waivers on actions permitted under the law will not include USC's/RA's" They don't have to... Section 1032(b)(1) "The requirement to detain a person in military custody UNDER THIS SECTION does not extend to citizens of the United States" The waiver itself is specific "may...waive the requirement of PARAGRAPH (1)" and, paragraph (1) reads "the (MILITARY) shall hold a person described in paragraph (2) (covered persons)...in MILITARY CUSTODY pending disposition..." The waiver doesn't 'waive' anything to do with application to American citizens... it only may waive the MILITARY jurisdiction in the interest of national security.
nav68
2 years, 8 months ago
The opening words of 1032(a), which is paragraph 1, states,"Except as provided in paragraph (4)...." It then states the requirement to detain the covered persons and circumstances. The waiver is a waiver of the requirement to detain. It can also be argued that it is a waiver of the requirement to detain ONLY covered persons. That could jeopardize USC/RA's. Again, I'm not saying it'll happen. But it's a potential loop hole.
marnesdad
2 years, 8 months ago
I'm sorry, Nav.... I just don't see it. Section 1032(b)(1) makes it clear that EVERYTHING in the section doesn't apply to US citizens.
nav68
2 years, 8 months ago
I sincerely hope you're right, and that I'm being paranoid. I don't like waivers unless they're real specific.

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