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Subject:  At the Bar: NDAA Date:  12/30/2011  12:40 PM
Author:  WuLong Number:  53717 of 53806

I wrote a lengthy (for a posting board) essay in PA about the detention bill that Congress has passed. For those that are interested in the discussion in that venue: http://boards.fool.com/indefinite-detention-approved-2974937...

With the holiday weekend and all, it might just scoll past and not get traction. But since I actually have thought about this a lot, and since it took a while to detail out, I've decided to repost it here. With luck, there will be some reasoned discussion.

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The ability to arbitrarily suspend an individual's freedom and rights for an indefinite period is the antithesis of why this country was founded.
The ability to detain individuals without due process is the antithesis of this country's founding. The question becomes what defines "due process" in our current situation. I will attempt to define this a bit below. Note that I may fail - it happens.

Let's start with an assumption: We are engaged in a struggle against an organization which seeks to disrupt or overthrow our country thru the use of physical attack.

I'm using several word here very purposefully and it is worth hi-liting them.

First, engaged. Is this true? Are we still engaged in a struggle? It's been 10 years since the Towers fell, bin Laden is dead.
I think we are. Defeat is an event that occurs in the mind of an enemy, and I'm not convinced our enemies are prepared to stand down. Nevertheless, this is the most important word in the assumption - how will we know when we are done?

Second is struggle. I did not say "war". If this were a war we would be able to define things fairly easily. We would detain enemy soldiers as POWs and return them according to negotiated protocols. Note that we did this even during the Cold War (which while not declared by Congress was still for all other intents and purposes a war). Because it is a loosely defined struggle, we have a loosely defined set of parameters for detaining participants.

Third is organization. I did not say "country". We have no one we can approach thru diplomatic channels to attempt to create protocols for handling participants. Further, this makes it difficult to define who is and is not a participant.

Finally, physical attack. Remember the Towers. Remember Madrid. Remember the Cole. Failure to identify and detain participants has deadly consequences. As citizens, we have a responsibility to attempt to protect ourselves. An ounce of prevention....

OK then. Let's look at the specific statements in the press release ( http://armed-services.senate.gov/press/NDAA%20FY12%20Confere... ) and see how they relate to the assumption/definitions. I'll take them out of order.

Require military detention. That's what you do with POWs. The military detains them. Detention of itself should not be an issue, so presumably the issue is the use of the military. We assumed this was an ongoing struggle of physical attack. As such, the use of the military is entirely appropriate.

authorizes transfer of detainees to civilian custody for trial in civilian court
Authorizes, not requires.
Are the actions criminal? Nothing in the assumption I laid out actually says so, does it? Wars aren't criminal per se, and one holds governments rather than individuals accountable for those. Here's where the whole "struggle" thing complicates the issue. If we transfer them to civilian custody, we can only hold them so long as we expect them to be convicted of a crime. Due process and all that. If they are not tried and found guilty, they must be released. Yet, we have reason to believe that such release would result in continued physical attack.
Frankly, this is a political gesture. I suspect actual transfer would occur in very rare circumstances. That's why it also says leaves it up to the President to establish procedures for determining how and when persons determined to be subject to military custody would be transferred.

This provision specifically exempts United States citizens and lawful resident aliens
. Why? I've already said we are engaged in a struggle, this class of individuals are certainly participants, no? Yes. But if they should participate in attacks against the US in any fashion, they would be guilty of treason. That charge is very clearly defined in the Constitution. Therefore, failure to exempt them would be unconstitutional. Congress could suspend habeus corpus, but the circumstances where that is allowed would almost certainly mean a declaration of war and, as noted above, this is not a war but a struggle.

Lastly, I said I would attempt to define "due process" in this situation.
Here's what sucks about all of this - "due process" has to occur during the identification of participants and as such cannot be transparent.
Proving a negative (I'm not a participant) is notoriously difficult. Appeal? OK, I've reviewed your case. You're an enemy, it says so right here. Facing accusers? Forget about it, we need to protect our intelligence operations.
As citizens, we want to make sure we are protecting ourselves without doing too much collateral damage. We want to make sure that we have a separate Inspector General looking into the identification/detainment process regularly. We want to identify the nationality of participants and as a general rule engage that country's diplomatic corp. Ideally we would probably want to hand participants over their own government for detainment, but that won't always be possible.

And that's pretty much the way it is.
Suck much? Yeah, but it's not like we want this. And it certainly is not the antithesis of our ideals.
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