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THE PEOPLE’S DAILY INTELLIGENCE BRIEFING
December 15, 2011, midday

President Obama has dropped his veto threat regarding the $662 billion Defense Authorization bill.  On December 14, the bill  passed 283-136 in the House.  A committee version of the bill passed in the Senate 93-7 last week. The Senate will probably vote finally on Thursday and President Obama will have it on his desk by the end of the week.

The President, threatened to veto it last week on the grounds that provisions which mandated military custody of terrorists restricted the President’s authority to decide what to do with terrorism suspects. The President did not object on any due process grounds. Obama just wanted to right to make the decision to detain or not himself.  He didn't want the Secretary of Defense to make the decision. The Senate revised the law and gave the Executive Branch the discretion to waive or not waive the requirement to deprive suspects of their constitutional rights. In fact, the executive branch requested that Senator John McCain and Senator Carl Levin include language authorizing due-process-free military custody for American citizens. 

The controversial provision section 1031 of the law regarding the President’s discretion to detain U.S. citizens indefinitely, is now moved to section 1021. It now states:

SEC. 1021. Affirmation of authority of the Armed Forces of the United States to detain covered persons pursuant to the Authorization for Use of Military Force.

(a) In general.—Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) Covered persons.—A covered person under this section is any person as follows:

(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

(c) Disposition under law of war.—The disposition of a person under the law of war as described in subsection (a) may include the following:

(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.

(2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111–84)).

(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.

(4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.

(d) Construction.—Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

(e) Authorities.—Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

(f) Requirement for briefings of Congress.—The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be “covered persons” for purposes of subsection (b)(2).  [Emphasis supplied.]

Going somewhat viral on the Internet is idea that the following language in section 1021(e) means that American citizens are not targeted by this law -- "Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens.”  The issue is legal interpretation.  It is true that the law does not specifically target American citizens.  However, the law does not limit the President’s authority under existing law.  Currently, under the under the post-9/11 law entitled Authorization for Use of Military Force against al Qaeda and its allies, the President as commander in chief can declare an American citizen is an “enemy combatant" and take him or her into military custody.  An American who is decreed by the President to be an enemy combatant would fall under the provisions of this new law, which explicitly authorizes possible detention by the military without charge or trial until the end of hostilities.  When will hostilities end?  When the war on terror has ended.  Thus, detention could be indefinite.

Will President Obama refrain from declaring American citizens to be "enemy combatants"?  Will he refrain from exercising his discretion to detain American citizens for terrorism under this new law? Given the targeted drone 2011 assassination of Anwar Al-Alwaki, an American citizen, in Yemen, one has to wonder.  The legal issue of whether the President can indefinitely detain American citizens remains unresolved., in that the U.S. Supreme Court has not yet been faced with a case under this new law.

 On March 13, 2009, U.S. Attorney General Eric Holder stated, the administration had abandoned the use of the term "enemy combatant", "As we work toward developing a new policy to govern detainees, it is essential that we operate in a manner that strengthens our national security, is consistent with our values, and is governed by law."  However, given the realities of life, the language "enemy combatant" is not necessarily language the President must essentially use to detain someone under the new law.

Habeas Corpus and the Fifth Amendment Right of Due Process of law, enshrined in the Constitution cannot be out-right destroyed by this law.  However, a Supreme Court fight is inevitable, if the military detains an American citizen under this law – a citizen whom the President decides should be detained.

The poem of the day about a guy the British would have called a terrorist or if such a phrase existed -- an "enemy combatant" -- it seems that all those folks who founded America are so far away from us now they seem like they must have lived on Pluto....

Paul Revere’s Ride

Henry Wadsworth Longfellow (1807-1882)

"Listen my children and you shall hear…"

Listen my children and you shall hear
Of the midnight ride of Paul Revere,
On the eighteenth of April, in Seventy-five;
Hardly a man is now alive
Who remembers that famous day and year.

He said to his friend, "If the British march
By land or sea from the town to-night,
Hang a lantern aloft in the belfry arch
Of the North Church tower as a signal light,–
One if by land, and two if by sea;
And I on the opposite shore will be,
Ready to ride and spread the alarm
Through every Middlesex village and farm,
For the country folk to be up and to arm."

Then he said "Good-night!" and with muffled oar
Silently rowed to the Charlestown shore,
Just as the moon rose over the bay,
Where swinging wide at her moorings lay
The Somerset, British man-of-war;
A phantom ship, with each mast and spar
Across the moon like a prison bar,
And a huge black hulk, that was magnified
By its own reflection in the tide.

Meanwhile, his friend through alley and street
Wanders and watches, with eager ears,
Till in the silence around him he hears
The muster of men at the barrack door,
The sound of arms, and the tramp of feet,
And the measured tread of the grenadiers,
Marching down to their boats on the shore.

Then he climbed the tower of the Old North Church,
By the wooden stairs, with stealthy tread,
To the belfry chamber overhead,
And startled the pigeons from their perch
On the sombre rafters, that round him made
Masses and moving shapes of shade,–
By the trembling ladder, steep and tall,
To the highest window in the wall,
Where he paused to listen and look down
A moment on the roofs of the town
And the moonlight flowing over all.

Beneath, in the churchyard, lay the dead,
In their night encampment on the hill,
Wrapped in silence so deep and still
That he could hear, like a sentinel’s tread,
The watchful night-wind, as it went
Creeping along from tent to tent,
And seeming to whisper, "All is well!"
A moment only he feels the spell
Of the place and the hour, and the secret dread
Of the lonely belfry and the dead;
For suddenly all his thoughts are bent
On a shadowy something far away,
Where the river widens to meet the bay,–
A line of black that bends and floats
On the rising tide like a bridge of boats.

Meanwhile, impatient to mount and ride,
Booted and spurred, with a heavy stride
On the opposite shore walked Paul Revere.
Now he patted his horse’s side,
Now he gazed at the landscape far and near,
Then, impetuous, stamped the earth,
And turned and tightened his saddle girth;
But mostly he watched with eager search
The belfry tower of the Old North Church,
As it rose above the graves on the hill,
Lonely and spectral and sombre and still.
And lo! as he looks, on the belfry’s height
A glimmer, and then a gleam of light!
He springs to the saddle, the bridle he turns,
But lingers and gazes, till full on his sight
A second lamp in the belfry burns.

A hurry of hoofs in a village street,
A shape in the moonlight, a bulk in the dark,
And beneath, from the pebbles, in passing, a spark
Struck out by a steed flying fearless and fleet;
That was all! And yet, through the gloom and the light,
The fate of a nation was riding that night;
And the spark struck out by that steed, in his flight,
Kindled the land into flame with its heat.
He has left the village and mounted the steep,
And beneath him, tranquil and broad and deep,
Is the Mystic, meeting the ocean tides;
And under the alders that skirt its edge,
Now soft on the sand, now loud on the ledge,
Is heard the tramp of his steed as he rides.

It was twelve by the village clock
When he crossed the bridge into Medford town.
He heard the crowing of the cock,
And the barking of the farmer’s dog,
And felt the damp of the river fog,
That rises after the sun goes down.

It was one by the village clock,
When he galloped into Lexington.
He saw the gilded weathercock
Swim in the moonlight as he passed,
And the meeting-house windows, black and bare,
Gaze at him with a spectral glare,
As if they already stood aghast
At the bloody work they would look upon.

It was two by the village clock,
When he came to the bridge in Concord town.
He heard the bleating of the flock,
And the twitter of birds among the trees,
And felt the breath of the morning breeze
Blowing over the meadow brown.
And one was safe and asleep in his bed
Who at the bridge would be first to fall,
Who that day would be lying dead,
Pierced by a British musket ball.

You know the rest. In the books you have read
How the British Regulars fired and fled,—
How the farmers gave them ball for ball,
From behind each fence and farmyard wall,
Chasing the redcoats down the lane,
Then crossing the fields to emerge again
Under the trees at the turn of the road,
And only pausing to fire and load.

So through the night rode Paul Revere;
And so through the night went his cry of alarm
To every Middlesex village and farm,—
A cry of defiance, and not of fear,
A voice in the darkness, a knock at the door,
And a word that shall echo for evermore!
For, borne on the night-wind of the Past,
Through all our history, to the last,
In the hour of darkness and peril and need,
The people will waken and listen to hear
The hurrying hoof-beats of that steed,
And the midnight message of Paul Revere.


People's Daily Intelligence Briefing 12/12/11

12/13/11