By Brian Walker
Here is the full-text of a presidential order to indefinitely detain a US citizen under military conditions as an enemy combatant:
TO THE SECRETARY OF DEFENSE:
Based on the information available to me from all sources,
In accordance with the Constitution and consistent with the laws of the United States, including the Authorization for Use of Military Force Joint Resolution (Public Law 107-40);
I, GEORGE W. BUSH, as President of the United States and Commander in Chief of the U.S. armed forces, hereby DETERMINE for the United States of America that:
(1) Jose Padilla, who is under the control of the Department of Justice and who is a U.S. citizen, is, and at the time he entered the United States in May 2002 was, an enemy combatant;
(2) Mr. Padilla is closely associated with al Qaeda, an international terrorist organization with which the United States is at war;
(3) Mr. Padilla engaged in conduct that constituted hostile and warlike acts, including conduct in preparation for acts of international terrorism that had the aim to cause injury to or adverse effects on the United States;
(4) Mr. Padilla possesses intelligence, including intelligence about personnel and activities of al Qaeda, that, if communicated to the U.S., would aid U.S. efforts to prevent attacks by al Qaeda on the United States or its armed forces, other governmental personnel, or citizens;
(5) Mr. Padilla represents a continuing, present and grave danger to the national security of the United States, and detention of Mr. Padilla is necessary to prevent him from aiding al Qaeda in its efforts to attack the United States or its armed forces, other governmental personnel, or citizens;
(6) it is in the interest of the United States that the Secretary of Defense detain Mr. Padilla as an enemy combatant; and
(7) it is REDACTED consistent with U.S. law and the laws of war for the Secretary of Defense to detain Mr. Padilla as enemy combatant. Accordingly, you are directed to receive Mr. Padilla from the Department of Justice and to detain him as an enemy combatant.
DATE: June 9, 2002 Signature
In September of 2005 the Fourth Circuit of Appeals ruled on whether or not the president had the authority to declare a US citizen (as above) an enemy combatant and then indefinitely detain him. The court ruled in the president's favor.
The National Defense Authorization Act that originally passed through the Armed Services Committee was approved with provisions that explicitly exempted US citizens from the indefinite detention language of section 1031 (which was re-numbered to 1021 immediately before it was passed) of the bill. This would have meant the legislation would have reduced the president’s powers to detain US citizens.
President Obama's administration intervened behind the scenes and requested that the specific exemptions for US citizens from section 1031 (now 1021) be removed.
The reasons for the President's veto threat were reported in such a way to suggest that the President was trying to protect US citizens from questionable detention laws, the ACLU reported that Obama was threatening to veto the bill over the indefinite detention provisions, but new evidence shows this was not the case.
Answering a question from Senator Udall about why the ASC did not exempt US citizens before bringing the bill to the full congress, Senator Levin (and chairman of the Armed Services Committee) explained, “I wonder whether the senator is familiar with the fact that the language which precluded the application of section 1031 to American citizens was in the bill that we originally approved in the Armed Services Committee, and the administration asked us to remove the language which says that US citizens and Lawful residents would not be subject to this section?” and continuing, “Is the senator familiar with the fact it was the administration that asked us to remove the very language which we had in the bill which passed the Committee and that we removed it at the request of the administration, that would have said the act - that this determination - would not apply to US citizens and lawful residents. I'm just wondering, was the senator familiar with the fact it was the administration which asked us to remove the very language, the absence of which is now objected to by the senator from Illinois?”
The Obama administration specifically requested the removal of language which protected US citizens from indefinite detention by the military. After multiple attempts at amending the bill before final passage, the new language promises - instead of an explicit exemption - that it will not alter “existing law” in relation to the President’s authority to detain American citizens without trial.
“Existing law” appears to already give the president the authority to detain US citizens as enemy combatants without trial. Jose Padilla vs the 4th Circuit of Appeals ruled that the President did have the authority to indefinitely detain enemy combatants, regardless of if they are a US citizen or not. Even before this, and even less well known, is that the United States of America has been in a presidentially declared state of emergency since September 14, 2001. While the state of emergency has a two year limitation rule under the National Emergencies Act, President Obama renewed it in 2009 and 2010, and again in September of 2011 so it is still in effect today.
At least two constitutional rights are subject to revocation during a national state of emergency:
1. The right of habeas corpus, under Article 1, Section 9;
2. The right to a grand jury for members of the National Guard when in actual service, under Fifth Amendment.
In the Fourth Circuit of Appeals ruling on whether or not the president had the authority to declare US citizens enemy combatants and indefinitely detain them, the court ruled that the Authorization for Use of Military Force passed by Congress after the terrorist attacks on 9/11/2001 granted him the authority to do so.
We understand the plurality’s reasoning in Hamdi to be that the AUMF authorizes the President to detain all those who qualify as "enemy combatants" within the meaning of the laws of war, such power being universally accepted under the laws of war as necessary in order to prevent the return of combatants to the battlefield during 10 PADILLA v. HANFT conflict. Id. at 2640-41. Given that Padilla qualifies as an enemy combatant under both the definition adopted by the Court in Quirin and the definition accepted by the controlling opinion in Hamdi, his military detention as an enemy combatant by the President is unquestionably authorized by the AUMF as a fundamental incident to the President’s prosecution of the war against al Qaeda in Afghanistan.
The Bush administration did give Padilla his day in court and eventually successfully convicted and sentenced him, but this does not change the ruling which determined he did not have to.
Press Secretary Jay Carney released a written statement about Obama’s decision, “We have concluded that the [NDAA’s] language does not challenge or constrain the President’s ability to collect intelligence, incapacitate dangerous terrorists, and protect the American people,” and stated “The President’s senior advisers will not recommend a veto.”
This article was published at NationofChange at: http://www.nationofchange.org/president-obama-requested-removal-indefinite-military-detention-exemptions-us-citizens-1324653317. All rights are reserved.