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Then-candidate Obama denounced the various “imperial powers” claims of the Bush administration. However, President Obama quickly embraced and even expanded upon the imperial presidential power claims of the Bush administration. But the greatest advocate of imperial presidential power in the Obama Administration was Vice President Joe Biden.
The most dangerous claims were those ratified by Congress in Sections 1021 and 1022 of the 2012 National Defense Authorization Act (NDAA). Sections 1021 and 1022 of the 2012 NDAA authorize the President to determine a national emergency/hostilities and to establish military tribunals, even within the United States, and subject American citizens to military tribunals which do not guarantee basic constitutional protections.
Section 1021 condones the use of military tribunals on presidential authority alone in violation of the constitutional requirement of congressional approval for military tribunals. Military tribunals, just like military courts established under the Uniform Code of Military Justice, are Article 1 courts established by congressional authority only. Thus, Sections 1021 and 1022 of the 2012 NDAA represent an unlawful delegation of legislative and judicial power to the executive branch in violation of the separation of powers and the constitutional limits on presidential authority.
Section 1021 has no time or geographic limitations. The provision allows presidents to detain persons of any nationality no matter how far they are captured from any conflict or battlefield. The basic laws of war codified by the Geneva Conventions only allow indefinite detention to prisoners of war. A person captured far from a conflict who is not taking part in hostilities does not qualify as a prisoner of war under international law. Any person detained due to criminal behavior must be afforded due process protections and prosecuted in the criminal justice system.
The provisions of sections 1021 and 1022 also violate the due process rights of American citizens and the 4th, 5th, and 6th Amendments. Basic rights to habeas corpus, trial by jury, and the right to defense counsel are denied. Further, Section 1021 permits the detention to last until the end of the national emergency/hostilities. Such a limitation is meaningless as a president simply can declare a continued state of hostilities to continue the detention.
Article 1 Section 9 Clause 2 of the Constitution mandates “the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” The writ of habeas corpus ensures that American citizens have the right to challenge the authority to detain. The Supreme Court ruled in Ex parte Milligan (1866), habeas corpus can only be suspended in a time of war by Congress and military tribunals cannot have jurisdiction over citizens in states where civilian courts are still operating. The lack of habeas corpus strips a citizen of the ability to invoke their basic constitutional rights.
Section 1021 states the persons are held “pending disposition under the law of war.” The law of war recognizes that prisoners of war and only prisoners can be detained until the end of a conflict. Otherwise, those who commit crimes, including prisoners of war, must receive proper due process under prosecution for those crimes. The structure of section 1021 does not comply with the requirements of the law of war. Therefore, section 1021 violates international law as embodied in the Geneva Conventions and their Additional Protocols 1 and II in addition to the Constitution.
Protocol I of the Geneva Conventions states
“The signing Nations agreed to further restrictions on the treatment of “protected persons” according to the original Conventions, and clarification of the terms used in the Conventions was introduced. Finally, new rules regarding the treatment of the deceased, cultural artifacts, and dangerous targets (such as dams and nuclear installations) were produced.
Protocol II of the Geneva Conventions states:
In this Protocol, the fundamentals of “humane treatment” were further clarified. Additionally, the rights of interned persons were specifically enumerated, providing protections for those charged with crimes during wartime. It also identified new protections and rights of civilian populations.
Section 1021 authorizes the disposition to include detention “without trial until the end of hostilities.” Section 1021 is facially unconstitutional as it denies the right to trial and habeas corpus for persons who are not prisoners of war. The military tribunal would be created by and its members appointed by the President. Therefore, the potential for abuse would be extremely high and far-reaching.
Section 1021 does not grant the authority but rather recognizes the imperial presidential claims of the Bush and Obama administrations. Thus, the section is embracing the idea that the President can create military tribunals on presidential authority alone. Constitutional limits of Presidential power are entirely ignored. Congress abdicated its duty to defend its authority and the Constitution.
Section 1021 uses what is called “report language” and is not commonly rendered into the statutory language of the United States Federal Code. Section 1021 uses the word “affirms.” This language, versus words like “will” or “shall,” is advisory and serves as Congress stating its views on the current state of the law. Therefore, Congress embraced the claims of the Obama administration.
Section 1022 requires that all persons detained under 1021 are to be held by the United States military. American citizens only are excluded from this “requirement.” This does not nullify section 1021’s language that an American citizen can be detained without trial. It also does not exclude non-military agencies such as the Central Intelligence Agency from detaining American citizens.
The prospect of non-military agencies detaining American citizens only increases the danger to the Republic. The United States military has a long history of respecting the rule of law and has well-developed due process protections for those held subject to the UCMJ. The FBI and CIA have long histories marked by abuses of power and violating the constitutional rights of American citizens.
Defenders of section 1021 claim that it does not truly permit indefinite detention since detention would terminate at the end of the armed conflict. However, the President would get to decide when the armed conflict ends since the conflicts are fought without the constitutionally mandated Declaration of War. Therefore, the real answer is that there is no legal limit on the time of detention. Such indefinite detention violates due process requirements.
Indefinite detention likely violates the Eighth Amendment’s ban on cruel and unusual punishment. Indefinite detention is a real punishment and to do so without limit and due process protections is a cruel and unusual punishment. Those detained could be abused without public knowledge and with those abused unable to assert their legal rights. Therefore, any mistreatment while confined could not be addressed through legal challenges.
Sections 1021 and 1022 are dangerous and unconstitutional. They are potential tools for doing great harm to the Republic. However, they do not operate in isolation. They represent part of a larger trend of Presidents seeking and getting power in violation of the Constitution and the failure of Congress to uphold the Constitution. The nation needs to return to truly upholding the Constitution.
The foreign and national security policies of the United States are long overdue for a strategic reevaluation to ensure the policies are truly serving the national interest and are operating lawfully. Such a reevaluation could take under a second Trump term. No such reevaluation would be possible under a Biden administration. President Trump has never used the unlawful provisions of Section 1021 of the NDAA of 2012. Biden strongly supported Section 1021 and the other abuses of the Obama administration.
A President Biden would likely use Section 1021 along with many other abuses of Presidential authority.