Section 1031, NDAA

Let's take a moment to review one small portion of the NDAA - Subtitle D--Counterterrorism, Section 1021 of the NDAA - which broadens the application of the AUFM so that it no longer applies only to those directly responsible for 9/11 (http://news.findlaw.com/wp/docs/terrorism/sjres23.es.html), it applies to anyone who might be suspected of being a terrorist OR Al Qa'da operative (http://www.gpo.gov/fdsys/pkg/BILLS-112hr1540enr/pdf/BILLS-112hr1540enr.pdf). I am referring to the definition of a person subject to this act found in Part (b)(2):

	"A person who was a part of or substantially supported..."

What does 'substantially supported' mean? Found no definition of this phrase on file.

	"...al-Qaeda, the Taliban, or associated..." ('associated' how?) "..forces" (Who is this? Again, no definition I could find of what constitutes a 'force')

	"...that are engaged in hostilities..." (Such as name calling? Does anyone have a link to the legal definition of a 'hostility'?)

	"...against the United States or its coalition partners, including any person who has committed a belligerent act..." (Someone please direct me to the legal definition of a 'belligerent act' as I could not find one.)

	"...or has directly supported..." (Note: The phrase in common use has been 'materially supported', which we have a legal definition of in criminal case law. Could find no legal definition for 'directly supported'. How is this support given? Writing a letter, article, tweet that supports some group or person fighting against someone the State Department has decided is an 'allie', regardless of their behavior?)

	"...such hostilities in aid of such enemy forces."

This is a very definite EXPANSION of the use of this act, which was previously constrained in application to persons who met BOTH tests for "Enemy Combatant" status (see pgs. 30 & 31 - http://www.fas.org/sgp/crs/natsec/RL33180.pdf - for a simple definition).

Former federal judge; U.S. Attorney; and director of the FBI, William S. Sessions, wrote a very strong warning about Section 1021. His letter was read into the Senate record on December 14, 2011 by Senator John Conyers, a member of the Judicial Committee. Here is an exerpt from that W. Sessions letter:

	"With regard specifically to Section 1031 from the Senate bill, some have argued that Section simply reiterates current law, and by doing so maintains the status quo. That is not the case. This very dangerous provision would authorize the President to subject any suspected terrorist who is captured within the United States--including U.S. citizens and U.S. persons--to indefinite detention without charge. The provision does not limit such detention authority to people captured on the battlefield. Importantly, although subsection (e) of this provision states that the provision should not be ``construed to affect existing law or authorities'' relating to detention of ``persons who are captured or arrested in the United States,'' the reality is that current law on the scope of such executive authority is unsettled.

   In fact, on two occasions when this issue was on track to come before the U.S. Supreme Court, the executive branch changed course so as to avoid judicial review. Specifically, in both the Padilla case in 2005-06 (involving a U.S. citizen) and the al-Marri case in 2008-09 (involving a legal permanent U.S. resident), the U.S. government claimed that the President had the authority to detain a suspected terrorist captured within the United States indefinitely without charge or trial. In both instances, however, before the Supreme Court could hear the case and evaluate this claim, the Justice Department reversed course and charged the defendant with criminal offenses to be tried in civilian court. Thus, this extreme claim of executive detention authority for people captured within the United States has never been tested, and the state of the law at present is unclear. Passage of Section 1031 would explicitly provide this authority by statute for the first time, thereby clearly, and dangerously, expanding the power for indefinite detention."  (http://www.gpo.gov/fdsys/search/citation.result.CREC.action?congressionalRecord.volume=157&congressionalRecord.pagePrefix=H&congressionalRecord.pageNumber=8925&publication=CREC)

The executive branch has made it a point, twice, to avoid judicial review of current law regarding indefinite detention. More from Senator Conyers, just prior to his reading of Sessions' letter into record:
	"I would like to remind my colleagues that provisions within the conference report impact our civil liberties and should have been referred to the Judiciary Committee for review. The conference report dangerously expands existing authorizations pertaining to individuals detained by the United States government and the military.

   First, Section 1021 grants broad discretionary authority that could permit the indefinite detention of United States citizens, areas of law that should have been referred to the Judiciary Committee.

   Secondly, Section 1021 is not the current law of the land and instead is new and dangerously extensive detention authority that has its origins in case law that never involved questions of whether American citizens could be indefinitely detained."

Section 1021 would not have been written had there been no need to add to or change existing law. The Senate received letters and recommendations from members of the FBI, 23 generals and admirals, and judges saying sections 1021 and 1022 should be striken from the bill. The provision avoids judicial review while allowing this legal precedent to be entered into codified law. Very slick move, Obama. For the first time in history, a court decision can now be upheld that allows U.S. citizens to be imprisoned for terrorism - without any legal definition for acts considered terrorist in nature.