[net-gold] Secrecy News -- 02/06/12
- From: "David P. Dillard" <jwne@xxxxxxxxxx>
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- Date: Mon, 6 Feb 2012 16:23:30 -0500 (EST)
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Date: Mon, 6 Feb 2012 11:06:16 -0500
From: Steven Aftergood <saftergood@xxxxxxx>
To: saftergood@xxxxxxx
Subject: Secrecy News -- 02/06/12
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SECRECY NEWS
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from the FAS Project on Government Secrecy
Volume 2012, Issue No. 10
February 6, 2012
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Secrecy News Blog:
http://www.fas.org/blog/secrecy/
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** DETENTION OF U.S. PERSONS: WHAT IS THE EXISTING LAW?
** MILITARY INTELLIGENCE PROFESSIONAL BULLETIN ONLINE
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DETENTION OF U.S. PERSONS: WHAT IS THE EXISTING LAW?
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When Congress passed the 2012 National Defense Authorization Act, it
included provisions that authorized U.S. armed forces to detain persons who
are captured in the conflict with al-Qaeda, the Taliban, or associated
forces. However, Congress also said that those provisions did not provide
any new authority to detain U.S. citizens or others who may be captured in
the United States.
"Nothing in this section shall be construed to affect existing law or
authority relating to the detention of United States citizens...," section
1021(e) of the Act states. "We are simply codifying existing law," said
Sen. Carl Levin, chair of the Senate Armed Services Committee, at the time.
But this was an evasion, since existing law regarding the detention of U.S.
persons is indeterminate in important respects.
A new report from the Congressional Research Service fleshes out the law of
detention, identifying what is known to be true as well as what is unsettled
and unresolved.
It is perfectly clear, for example, that a U.S. citizen who fought alongside
enemy forces against the United States on a foreign battlefield could be
lawfully detained. This was affirmed by the U.S. Supreme Court in the case
Hamdi v. Rumsfeld.
On the other hand, the CRS report explains, "the President's legal authority
to militarily detain terrorist suspects apprehended in the United States has
not been definitively settled."
Nor has Congress helped to settle it. "This bill does not endorse either
side's interpretation," said Sen. Dianne Feinstein on December 1 about the
defense authorization act, "but leaves it to the courts to decide."
So if a detention of a U.S. person does occur, the CRS said, "it will be up
to a court to determine Congress's intent when it enacted the AUMF [the 2001
Authorization to Use Military Force], or alternatively, to decide whether
the law as it was subsequently developed by the courts and executive branch
sufficiently established that authority for such detention already exists."
Up to now, "Lower courts that have addressed questions the Supreme Court
left unanswered have not achieved a consensus on the extent to which
Congress has authorized the detention without trial of U.S. persons as
'enemy combatants,' and Congress has not so far clarified its intent."
The new CRS report traces the development of U.S. detention policy from the
Alien and Sedition Acts of 1798 through the Civil War, the two World Wars,
and the Cold War up to the present day. See "Detention of U.S. Persons as
Enemy Belligerents" by CRS legislative attorney Jennifer K. Elsea, February
1, 2012:
http://www.fas.org/sgp/crs/natsec/R42337.pdf
Some other new (or newly updated) CRS reports obtained by Secrecy News that
have not been made readily available to the public include the following.
"Terrorist Watch List Screening and Brady Background Checks for Firearms,"
February 1, 2012:
http://www.fas.org/sgp/crs/terror/R42336.pdf
"War Powers Resolution: Presidential Compliance," February 1, 2012:
http://www.fas.org/sgp/crs/natsec/RL33532.pdf
"The U.S. Postal Service's Financial Condition: Overview and Issues for
Congress," January 27, 2012:
http://www.fas.org/sgp/crs/misc/R41024.pdf
MILITARY INTELLIGENCE PROFESSIONAL BULLETIN ONLINE
The Military Intelligence Professional Bulletin is a quarterly journal
published by the U.S. Army to promote awareness and discussion of current
topics in military intelligence. Although unclassified, the Bulletin is not
made available online by the Army. Recent volumes can be found, however, on
the Federation of American Scientists website.
http://www.fas.org/irp/agency/army/mipb/index.html
The two latest issues are devoted to "Intelligence in the Current
Environment" (April-June 2011) and "Enabling Intelligence Analysis"
(July-September 2011).
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_______________________________________________
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Secrecy News is written by Steven Aftergood and published by the Federation
of American Scientists.
The Secrecy News Blog is at:
http://www.fas.org/blog/secrecy/
To SUBSCRIBE to Secrecy News, go to:
http://www.fas.org/sgp/news/secrecy/subscribe.html
To UNSUBSCRIBE, go to
http://www.fas.org/sgp/news/secrecy/unsubscribe.html
OR email your request to saftergood@xxxxxxx
Secrecy News is archived at:
http://www.fas.org/sgp/news/secrecy/index.html
Support the FAS Project on Government Secrecy with a donation:
http://www.fas.org/member/donate_today.html
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_______________________
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Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web: www.fas.org/sgp/index.html
email: saftergood@xxxxxxx
voice: (202) 454-4691
twitter: @saftergood
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Other related posts:
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