reply to post by Xcathdra
I've gone over the Senate bill and have a different interpretation than the OP:
The text of the bill: thomas.loc.gov...
Section.1031 clearly spells out who the Military Force can DETAIN:
"(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
(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."
This section makes no carve out for citizens or legal resident aliens.
Thus under Section 1031 the military can DETAIN and hold under the law of war until the end of hostilities (which is very open ended), or some form of
trial, or transfer to any other country or foreign entity.
Section 1032 Specifically discussed CUSTODY PENDING DISPOSITION and applies the citizen and legal resident exemption in section (b).
"(b) Applicability to United States Citizens and Lawful Resident Aliens-
(1) UNITED STATES CITIZENS- The requirement to detain a person in military custody under this section does not extend to citizens of the United
(2) LAWFUL RESIDENT ALIENS- 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
Note the exemption is for this section (1032) only.
There is however this additional contingent definition in 1032, which refers back to section 1031. Note it says nothing about being consistent with
section b. but rather section 1033.
"(3) DISPOSITION UNDER LAW OF WAR- For purposes of this subsection, the disposition of a person under the law of war has the meaning given in section
1031(c), except that no transfer otherwise described in paragraph (4) of that section shall be made unless consistent with the requirements of section
Section 1033 deals directly with Guantanamo Bay or other foreign countries, entities. And though it sounds like there are safeguards in place to keep
the power fairly restricted and documented, there is the following exception:
"(1) IN GENERAL- Except as provided in paragraph (2) and subsection (d)....."
Subsection (d) sub (D) reads:
"(D) the transfer is in the national security interests of the United States."
Which again seems to grant exceedingly broad powers.
I certainly might be wrong, but in the least it beings up an important point as to why was it worded in such a manner (by a Senate filled Senators
that are attorneys and a staff of attorneys), as to be ambiguous. It appears to be open to interpretation to cover a variety of people and
circumstances while also providing a carve out that provides a nice sound bite point of defense concerning its applicability to US citizens.
Thanks in advance for any input.