S.1867: Can the Military Detain You Without Trial?

There has been a lot of buzz on the internet and at conservative meetings about Senate bill 1867. This bill, entitled The National Defense Authorization Act, contains section authorizing military detention without trial or charges under certain circumstances. Ominously, the Senate invoked cloture on the bill, which ends further discussion, by a vote of 88-12 on November 30th.

Are we in for a reign of secret police coming in the dead of night or are we being protected from international terrorists? Read on to find out.

I was asked by a well-established Tea Party group to review S.1867 for them. As background, I worked for the Federal government for 34 years and I have experience in reviewing and commenting on pending legislation. Here is my take of the bill.

This is an omnibus defense appropriations bill that covers many topics. The concerns raised at Tuesday’s Tea Party meeting are the provisions of Subtitle D – Detainee Matters, Section 1031 and 1032. The following is a synopsis of the provisions of the bill:

Sec. 1031 (a) authorizes the president to use all appropriate force, including the military to detain covered persons. The key phrase here is “covered persons”.

Sec. 1031 (b) defines a covered person as “A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.” (1031 (b) (1)


“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.” (1031 (b) (2)

So, a covered person is someone who has actively supported al-Qaeda or the Taliban. Under those criteria, the person would have to be a terrorist in order for the bill’s provisions to apply.

The disturbing part for the general public, if the provisions were misapplied, is section 1031(c) (1) that allows indefinite military detention without trial.

Sec. 1032 defines the requirements for military detention. The people subject to military detention are defined as:

(A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and

(B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.

Sec. 1032 (b) specifically excludes U.S. citizens or aliens who are lawfully admitted for permanent residency. The following is the bill’s language, with the exclusions in bold.

(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 States.

(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 States.

So, in summary, the bill authorizes indefinite military detention without trial for non-citizens or for aliens who are not admitted for permanent residency, if they were either directly involved in the 9/11 attacks or are active members of al-Qaeda, the Taliban or known terrorist organizations. The bill does not apply to ordinary Americans. The military would not have the authority under this bill to detain you or me (unless you are a terrorist).

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