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The general consensus is that the law allows for US citizens who assisted in the attacks on Sep 11 or supported al Qaeda or its allies in any attack on the US may be detained. This is the part of section 1031 that is the most debatable. The law is vague and says it is a reaffirmation of the law passed in the authorization to use force after the 9-11 attacks.

As such, this is not a change from the current law in the US. If you felt that US citizens could be detained under the previous law, then you would say they could be under this law. If you felt it did not apply, then it would not apply now. Of course, Padilla was a US citizen who was arrested in the Chicago airport and then transported to Guantanamo for detention. I do not fully remember the court cases on it, but I think he was allowed to have a lawyer and fight the detention under habeas corpus rules. If I do remember correctly, the case was made moot before SCOTUS could rule on the actual detention.

The requirement in section 1032 for all detainees to be held by the military does not apply to US citizens. The lack of the requirement does not forbid military detention.

Overall, I think the law does allow for the military to detain US citizens, but they are allowed to fight it under habeas corpus laws. I don't know if anyone has challenged the law based on Fourth or Fifth Amendment rules and had a ruling make it all the way to SCOTUS. I do not see how this could be upheld that far, but the previous detentions made it further than I thought they would also.

VMI77 wrote:Doesn't look like that's true to me --there are two categories of "covered persons." One applies to people covered under the authorization to use the military in response to the 9/11 attacks. The other, paragraph 2, applies to people who have supported associated forces or committed a "belligerent" act against the US or it's coalition partners. Supported could mean giving money to a charity, that unbeknownst to the contributor, funnels money to one of those "associated" forces, something it is entirely possible to do without the knowledge or intent of aiding such forces. Posting inflammatory comments on the internet could be construed as a "belligerent" act.

You need to read the whole section as it reads. The first paragraph says it applies to covered persons as defined by the next paragraph if they are authorized under the mentioned law. The second paragraph then defines who a covered person is. This means that the person must meet one of the requirements in paragraph b to be a covered person and the requirement in paragraph a of being covered by the law.

Also, where does it say the law doesn't "apply" to US citizens? It says the "requirement" to detain doesn't extend to US citizens, which merely seems to make such detention discretionary. Nowhere does it say such detention is prohibited. If the intention is really to exclude US citizens, why doesn't the language say so in no uncertain terms?

Again, you need to read the whole section. In this case, you also need to understand some legal wording. Paragraph A says the military shall hold a person. This makes it a requirement, not just an authority. So, in paragraph b when it removes the requirement, it also means all other laws become applicable. This includes posse comitatus that denies the military the authority unless otherwise specifically authorized.

So, the way I read the law, there is a lot of smoke and mirrors being thrown around about it. I do not find the law to allow detention of US citizens based on this law. I could be wrong of course, as I disagreed with some of the other legal rulings to come out of the Attorney General's office in the past few years (both the current and previous AGs).

The other significant element here is that detention comes without any presentation of evidence, since there is no trial; nor is there any limit on the length of detention, since we all know that the WOT is never going to end. So essentially, the law allows people to be placed in prison, indefinitely, on nothing more than an allegation (and no doubt, the claim will be made that there is evidence, but it's secret and can't be disclosed). Finally, I will point out that the Constitution doesn't grant the right to trial only to "citizens" --it says "persons."

This is a point I wholeheartedly agree with. The Constitution applies to the US government and limits it no matter who it is dealing with. One of the rulings I disagreed with that I referred to is the concept that the Constitution does not apply to the US government when it has its agents operating outside the US. The best way to protect my rights is to protect everyone else's rights also.

Anyone who wants to argue against this law on this basis has my full support. I don't like this law or the authority to use military force to begin with. But I strongly dislike the partisan debate that is full of untruths, half-truths, and misdirection. We need to debate on the basis of actual facts.

I have to apologize. I did finally find section 1031 and it is still there. But it is truly a false scare as HP posted. In addition to not applying to citizen's, sec. 1031 makes it clear that it only applies to people covered under the authorization to use the military in response to the 9/11/01 attacks.

The article refers to section 1031 as the bad section. That section has been removed already.