February 8th, 2012

Rob Natelson: NDAA Sections 1021 and 1022: Scary Potential




Please read article at the Tenth Amendment Center:


NDAA Sections 1021 and 1022: Scary Potential

by Rob Natelson


Are the detainment provisions of the 2012 National Defense Authorization Act serious?

Yes they are.

This is a complicated area, and there has been a lot of word-fudging in spinning this subject. So bear with me as we take things step by step.

*    The U.S. Constitution generally guarantees the “Privilege of the Writ of Habeas Corpus.” The writ of habeas corpus is a court order a prisoner can obtain requiring the jailer to come into court and justify his detention of the prisoner. It is a traditional way in which those held can demand a fair trial by jury in a civilian court. The writ of habeas corpus is a treasured part of our traditional liberty. Belief that the British were infringing it was one cause of the American Revolution.  (The writ is called a “privilege” rather than a “right” because it is a creation of the legal system rather than a natural right, like the right to free speech.)

*    By the Constitution’s original meaning, the privilege of habeas corpus is guaranteed to all those in “allegiance” to the United States. “Allegiance” is an old technical legal term that includes both citizens and aliens legally in the country.

*    By successfully convincing a judge to issue a writ of habeas corpus, citizens, foreign visitors, and legal residents may obtain a hearing that may induce the judge to order a civilian trial. It matters not how heinous the crimes they are accused of. For example, a person charged with trying to blow up a building on behalf of a foreign power can be charged with treason. But while still merely accused, he is entitled to all the protections of due process, including a fair, public trial before a jury of his peers.

*    By the Constitution’s original meaning, habeas corpus does NOT apply if the Congress, as an incident to its war power, “suspends” the writ for a particular time and place. However, the Constitution says that Congress may “suspend” the writ only “when in cases of rebellion or invasion the public safety may require it.” Congress has not suspended the writ, and it is doubtful that occasional acts of terrorism constitute a sufficient “rebellion or invasion” to justify doing so. Even if Congress could suspend the writ, a Bill of Suspension would be a serious, much-debated measure for which Congress would have to assume direct political accountability. Political accountability is not a big priority with Congress right now.

*    Members of all belligerent armed forces (both sides) are subject to military, not civilian, law.

*    Thus, by the law of war, the executive (and the military officers under him) may incarcerate for the duration of the conflict any enemy combatants captured in the theater of war.

*    By the Constitution’s original meaning the executive has no constitutional power (without formal congressional suspension of the writ) to lock up citizens or lawful aliens apprehended outside the war theater. If accused of crime, the accused has the privilege of a jury trial in a civilian court. By the Constitution’s original meaning, this constitutional right does not apply to enemy aliens, wherever apprehended.

*    In 2008, the U.S. Supreme Court (erroneously, in my view) held that alien Guantanamo detainees have the right to habeas corpus to determine if they are really enemy combatants. Still, under this case if they are found to be enemy combatants they can go back to prison indefinitely.

Now, with that background, let’s look at the critical language of the Act, again step by step:

§1021: (a) Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force . . . includes the authority for the Armed Forces of the United States to detain covered persons . . . pending disposition under the law of war.

Comment: The Authorization for the Use of Military Force (AUMF) is the resolution passed in the wake of 9/11 authorizing the President to fight terrorism. The National Defense Authorization Act is sometimes justified as mere clarification of the AUMF.

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

Comment: This provision includes people accused of certain terror-related crimes. Fine— but it does not exempt U.S. citizens or legal aliens with U.S. territory. Thus, far, it appears they can be “detain[ed] . . . pending disposition under the law of war.” But what does that mean?

c) . .  The disposition of a person under the law of war . .  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. . .

Comment: This clarifies that the government may detain anyone so charged “without trial until the end of the hostilities.” Apologists for the law point out that it permits other dispositions “under the law of war,” including civilian trial. But the point is that the law does not require those other dispositions. The administration can simply decide to detain you “without trial until the end of hostilities.”

(d) . . . 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.

Comment: This is a basis for the argument that all Congress is really doing is clarifying the AUMF. But this is cold comfort, because the position of the Obama administration is that the AUMF always authorized rounding up citizen-suspects and holding them without trial!

(e) . . . 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.

Comment: This provision is sometimes touted as protecting citizens because it preserves existing Supreme Court decisions. The problem is that, as yet, there are no Supreme Court decisions that squarely provide the full measure of habeas corpus protection to citizens or legal aliens accused within our borders. This is true because neither the Bush nor the Obama administration has had the audacity to round up U.S. citizens without our borders and hold them indefinitely without trial.

Here are the principal Supreme Court decisions the law preserves:

(1) A post-Civil War case (Ex Parte Milligan) saying a citizen non-combatant  incarcerated outside the theater of war is entitled to habeas corpus. (This holding doesn’t help those accused of being combatants.)

(2) The World War II-era Quirin decision that permitted President Roosevelt to detain, try in a secret military hearing, and execute a U.S. citizen captured on U.S. territory and accused of being a German spy. Obviously, this decision—which is widely acknowledged to be egregious—offers no protection against the National Defense Authorization Act.

(3) The 2004 Hamdi case, which says that a U.S. citizen captured bearing arms in the war theater is NOT entitled to habeas corpus. He is entitled only to a minimal military hearing without a jury and without many of the traditional due process protections.. (Some apologists for the National Defense Authorization Act are claiming the Hamdi case granted a right of habeas corpus; this claim is flatly wrong.)

(4) The 2008 Boumedienne decision, which held that alien Guantanamo detainees are entitled to habeas corpus and a civilian hearing to show that they were non-combatants.

Obviously, none of these prior holdings addresses the habeas corpus rights of a U.S. citizen or legal alien apprehended within the U.S. and charged with being an enemy combatant. So there is no Supreme Court case providing the necessary protection preserved by the law’s provision that “existing law or authorities” are preserved.

§ 1022: (b) (1) . . . The requirement to detain a person in military custody under this section does not extend to citizens of the United States.
(2) . . . The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.

Comment: This section says that the administration is not REQUIRED to keep a U.S. citizen or legal resident alien in indefinite military custody. But it does not prevent the administration from doing so.

* * * *

When you look at sections 1021 and 1022 of the National Defense Authorization Act objectively, they become scary in their potential. If the administration does try to use it to lock up American citizens without habeas corpus, the Supreme Court probably will void the incarceration and require a civilian trial. But in the normal course of events, vindicating one’s rights could take years.

Of course, in America, we traditionally don’t lock up citizens on mere suspicion. . . .

Or is that is now changing?


In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been published or cited by many top law journals. (See: www.umt.edu/law/faculty/natelson.htm.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado’s Independence Institute.

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4 Responses to “Rob Natelson: NDAA Sections 1021 and 1022: Scary Potential”

  1. 1
    Dr. Clara Says:

    Stop Government sanctioned terrorism against medical marijuana patients:

    The active ingredient in marijuana cuts tumor growth in common lung cancer in half and significantly reduces the ability of the cancer to spread, say researchers at Harvard University who tested the chemical in both lab and mouse studies.

    source: http://www.sciencedaily.com/releases/2007/04/070417193338.htm

    The new findings “were against our expectations,” said Donald Tashkin of the University of California at Los Angeles, a pulmonologist who has studied marijuana for 30 years.

    “We hypothesized that there would be a positive association between marijuana use and lung cancer, and that the association would be more positive with heavier use,” he said. “What we found instead was no association at all, and even a suggestion of some protective effect.”

    source: http://www.washingtonpost.com/wp-dyn/content/article/2006/05/25/AR2006052501729.html

  2. 2
    Knine Says:

    “By the Constitution’s original meaning …”

    We have had domestic enemies since our country was founded, since the Constitution was written. We have even had good men, in a moment of trying for forge our nation on a vision, route they saw as good for it; broke their Oath, did a thing that made them qualify as a domestic enemy of the USA. But the fact that overall they were good and learned men within different positions within our government did not make that a legal decision or a binding contract within/on our US Constitution.
    Why not? You might ask. Because they took an Oath to either: “Preserve, Protect, and Defend”, or to “Support and Defend” the US Constitution; there was no other choice given. They could strengthen the protections of our Rights; of the way our Constitution provided a system of checks and balances within our government to stop corruption; but they could NOT weaken them. So when you say “”By the Constitution’s original meaning …”, there is no other meaning to consider, not if you took an Oath to “Support and defend, or to Preserve, Protect, and Defend the US Constitution. As James Madison said: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
    This Constitution defines the extent of the powers of the general government. If the general legislature, if Congress should at any time overleap their limits the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void.
    What part of “preserve, protect, and defend” or “support and defend” part of the oath(s)taken is not understood? There is NO other choice given, so they can support it (to bear or hold up; serve as a foundation for;, to sustain under trial or affliction;, to maintain), defend it (from those who want to weaken it, take powers that were never given to them), preserve it (to keep alive or in existence; make lasting, to keep safe from harm or injury; protect or spare; to keep up; maintain; to keep possession of; retain) in the interest of curbing corruption. (”Perjury” is usually defined today as “lying under oath about a material matter”. But it also means “VIOLATION OF AN OATH”. The Founding Fathers agreed upon the importance of ensuring that officials promised their allegiance; indeed, very little debate occurred before the first Congress passed this statute.

    Those Oath’s mean that they cannot change the Constitution to weaken it, that to do so makes that amendment, law, bill, executive order “void”, illegal not valid; even if given the appearance of validity by illegal enforcement using legal entities/agencies. They are BOUND by their Oath to support the Constitution, and should they abrogate their Oath by their acts or inaction, are subject to charges of impeachment and censure. Hence the need for Statue 1 to define the administration of the Oath.
    The three branches of our government, the military, all law enforcement, the heads of the States, all federal employees are required to take an Oath to support and defend the Constitution and not an individual leader, ruler, office, or entity. Once given, the Oath is binding for life, unless renounced, refused, and abjured. It does not cease upon the occasions of leaving office or of discharge. “Bound – Being under legal or moral obligation; To constitute the boundary or limit of; To set a limit to; confine”.
    The first law statute of the United States of America, enacted in the first session of the First Congress on 1 June 1789, was Statute 1, Chapter 1: an act to regulate the time and manner of administering certain oaths, which established the Oath required by civil and military officials to support the Constitution.
    The wording of the Presidential Oath was already established in the Constitution in Article II, Section 1, Clause 10. The requirement for all other Federal and State Civil officers to give their solemn and binding Oath is established in Article VI, Section 1, Clause 4. They are BOUND by their Oath to support the Constitution, and should they abrogate their Oath by their acts or inaction, are subject to charges of impeachment and censure. That is why the need for Statue 1 to define the administration of the Oath.

    If it was not listed in the US Constitution as a power granted to our federal government, then it doesn’t have that power, nor can it give itself that power. That when those who are serving in our federal government go against the duties assigned to them by the States, the People thru the US Constitution; those people are Attacking America, Americans, and the Constitution.
    Thomas Jefferson expressed the importance of binding the hands of the central government directly: “The two enemies of the people are criminals and government, so let us tie the second down with the chains of the Constitution so they will not become the legalized version of the first.”

    The structure of the US Constitution itself emphasizes the principle of separation of powers. Article I established the legislative branch with the power to make laws; Article II, the executive branch with the authority to enforce the laws; and Article III, the judicial branch with jurisdiction over legal disputes. (Important: the Constitution in no way granted the federal courts the power of judicial review, or an ultimate interpretive power over the constitutional issues”; that “power” was taken on themselves thanks to a long series of precedents beginning with the 1803 case of Marbury v. Madison. But it does not make it legal or correct. Like congress in 1913 illegally delegating its Constitutional duty to provide a sound currency to a federally chartered, but private, central bank; Bush with the Patriot Act, etc; Obama with the NDAA, etc; it was “taken” not given to them by the US Constitution.

    That an executive official, including the President of the US, is ultimately responsible for any failures of his subordinates and for their violations of the oath he and they took, which means violations of the Constitution and the rights of persons. It isn’t necessary to prove that such failures or violations occurred at his instigation or with his knowledge. It’s sufficient to show, on the preponderance of evidence, that the president was aware of misconduct on the part of his subordinates, or should have been, and failed to do all he could to remedy the misconduct, including termination and prosecution of the subordinates and compensation for the victims or their heirs.

    America is a constitutional republic where elected representatives swear to uphold the Constitution as they serve at the will and by the consent of the people (A Constitutional Republic is where the officials are elected as representatives of the people, and must govern according to existing constitutional law that limits the government’s power over citizens.)

    Yet we not only have NDAA, Patriot Act, warrantless searches, many things stilling the freedom of speech, freedom of the press silenced, etc; we also have a POTUS who has committed treason, murder (Operation Gunrunner), said that the judicial branch has no power over him. Who ordered his attorneys to stay away from the hearing. Who didn’t petition a higher court in a legitimate attempt to stay the hearing. Instead he showed complete contempt for the entire judicial branch and for the rule of law. Rather than respecting the legal process Obama went around the courts and tried to put political pressure directly on the Georgia Secretary of State. When that failed, he simply ignored the judicial branch completely.
    We have a congress that supported all those unconstitutional actions and a (mostly) unconstitutional judicial branch breaking the TWO Oaths they were required to take.

    Yet not one person who took an Oath has started filing charges, not one.

    Ron Paul’s son, Rand Paul, was openly accosted by the TSA at an airport. Ron Paul used to be for getting rid of the Federal Reserve, yet he has now changed his stance to a full audit of them. Was this an open threat to Ron Paul? Why do I feel it was? Because the TSA has done what it can to minimize the public filming them in their unconstitutional actions, even to confiscating cameras, phones, etc. Yet, this was blatant, and openly filmed, written about. None of you find that to be “funny” and not in a “ha, ha” sort of way?
    Obama told the Supreme Court judges that if they did not find his way on tracking, he could see to it that they were tracked 24/7.

    I am fighting this, I have written every federal agency, all congress/senate/etc until my arms hurt trying to stop this destruction of America. I thought there was hope here on this site, but what I read, see, is “pretty words” but no real actions to “support and defend the US Constitution”. What happened to arrests and being held until prosecution? I inform everyone, everywhere I can about the meaning of the US Constitution, laws broken, etc. Remember, studying law, anything you only learn what they want you taught.

  3. 3
    Freedom Warrior Says:

    If you want to hear from someone who unmistakably understands the profound impact of America’s founding and believes there is still time for its citizens to take hold of its bureaucratic laden government and return it back to the will of it’s founding, then you must hear this speech from Daniel Hannan. You’ll appreciate America all the more afterwards, I assure you.

    Full Speech Daniel Hannan at CPAC 2012

  4. 4
    prarierat1369 Says:

    I am not a lawyer, but I do not understand why I have never seen an oath breaker charged at any level. In the Supreme Decision of Walker vs Congress decision, that its very easy to do. Why no has charged anyone with such clear instructions contained in that decision. If I were an attorney, I would start with at town level oath breakers holding office and work my way up. Does anyone know if this has been done?

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