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Explaining to a 5-Year Old Why the Indefinite Detention Bill DOES Apply to U.S. Citizens on U.S. Soil


Washington’s Blog
Thursday, December 15, 2011

In response to my essay documenting that the indefinite detention bill does apply to American citizens on U.S. soil, a commentator posted:

Can somebody explain to me like I am 5, why [one of the bill’s provisions – which discusses U.S. citizens] does not protect citizens?

Yes, let me explain it in words that even a 5-year-old can understand …

The bill says that the military must indefinitely detain anyone SUSPECTED of helping bad guys.

One provision says that the mandatory (“must”) indefinite detention doesn’t apply to U.S. citizens … but the government CAN indefinitely detain any U.S. citizen it feels like without trial, without presenting evidence, without letting the citizen consult with a lawyer, and without even charging the citizen.

This would destroy our Constitutional rights to trial, to face our accuser and to consult with an attorney.

Indeed, it would destroy rights created in England in 1215.

In other words, it’s like saying “you don’t HAVE to lock up Joey for the rest of his life because he called you a mean name, but you CAN lock him away and throw away the key and then falsely accuse him of being a suspected terrorist if it would make you happy”.

Get it?

That is why Congressman Justin Amash wrote:

Senators McCain and Levin have teamed up to promote one of the most anti-liberty pieces of legislation of our lifetime, S 1867, the National Defense Authorization Act. This bill would permit the federal government to indefinitely detain American citizens on American soil, without charge or trial, at the discretion of the President. It is destructive of our Constitution.

… A few commenters have suggested that the dangerous provisions in S 1867 (discussed in my previous post) do not apply to American citizens because of this language in Sec. 1032: “The requirement to detain a person in military custody under this section does not extend to citizens of the United States.” This language appears carefully crafted to mislead the public. Note that it does not preclude U.S. citizens from being detained indefinitely, without charge or trial, it simply makes such detention discretionary.

Amash subsequently wrote:

Pres. Obama and many Members of Congress believe the President ALREADY has the authority the bill grants him. Legally, of course, he does not. This language was inserted to keep proponents and opponents of the bill appeased, while permitting the President to assert that the improper power he has claimed all along is now in statute.

***

They will say that American citizens are specifically exempted under the following language in Sec. 1032: “The requirement to detain a person in military custody under this section does not extend to citizens of the United States.” Don’t be fooled. All this says is that the President is not REQUIRED to indefinitely detain American citizens without charge or trial. It still PERMITS him to do so.

The ACLU notes:

Don’t be confused by anyone claiming that the indefinite detention legislation does not apply to American citizens. It does. There is an exemption for American citizens from the mandatory detention requirement (section 1032 of the bill), but no exemption for American citizens from the authorization to use the military to indefinitely detain people without charge or trial (section 1031 of the bill). So, the result is that, under the bill, the military has the power to indefinitely imprison American citizens, but it does not have to use its power unless ordered to do so.

See this.

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