NDAA Passes Senate After Modification

The Los Angeles Times has made the following assertion that the National Defense Authorization Act of 2012 has been modified to address the suspension of Habeas Corpus which Left Coast Rebel explained.

The final compromise mandates that terrorism suspects thought to have ties to Al Qaeda and planning attacks against the United States be taken into military custody, even those captured in the U.S. In response to some complaints, though, the bill carves out an exemption for U.S. citizens and legal permanent residents.  

The bill also allows the military to indefinitely detain terrorism suspects accused of having ties to Al Qaeda, the Taliban or forces engaged in hostilities against the U.S. That provision specifies that such power cannot be applied to U.S. citizens captured in the U.S.

The actual text of bill that passed the Senate S1867 (now HR1540) after the previous version inexplicably passed the House of Representatives is as such: (look for red text)

Subtitle DDetainee Matters
SEC. 1031. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.(a) IN GENERAL.
Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
(b) COVERED PERSONS.
A covered person under this section is any person as follows:
(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
(2) 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.(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 111-25 84)).
(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.
(d) CONSTRUCTION.
Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.
(e) AUTHORITIES.
Nothing in this section shall be construed to affect existing law or authorities, relating to the detention of United States citizens, lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.(f) REQUIREMENT FOR BRIEFINGS OF CONGRESS.
The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be ‘‘covered persons’’ for purposes of subsection (b)(2) .

SEC. 1032. REQUIREMENT FOR MILITARY CUSTODY.(a) CUSTODY PENDING DISPOSITION UNDER LAW OF WAR.
(1) IN GENERAL.
Except as provided in paragraph (4), the Armed Forces of the United States shall hold a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107-40) in military custody pending disposition under the law of war.(2) COVERED PERSONS.
The requirement in paragraph (1) shall apply to any person whose detention is authorized under section 1031 who is determined
(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.(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 1033.
(4) WAIVER FOR NATIONAL SECURITY.
The Secretary of Defense may, in consultation with the Secretary of State and the Director of National Intelligence, waive the requirement of paragraph (1) if the Secretary submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.(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.

The compromise version of this bill adds the administrative hurdle of a signature on a form submitted to Congress. On the surface, this is comforting but substantively this may be meaningless. The military cannot pickup or detain American citizens or lawful resident aliens (without a waiver). 

As patriots we need to keep laser focus as this bill is resubmitted to the House of Representatives. To be frank, the intent of this bill is unclear.  Sec 1032 (a)(4) defines a waiver to allow detention, but Sec. 1032 (b) uses the phrases "The requirement to detain". This language reads like a military order, but as legislation there is a difference between authorization and legal requirements.

I do not know if legal authority for the military to detain American citizens exists elsewhere. If not the case, the language of Sec. 1032(b)(1) and 1032(b)(2) should be changed.  "Authorization to detain a person in military custody under this section does not extend..." would be preferred.