Requirement for military custody: Section 1022 National Defense Authorization Act for Fiscal Year 2012

detainees upon arrival @ camp x-ray, january 2002. in may 2006, un committee against torture condemned prisoners treatment @ guantánamo bay, noting indefinite detention constitutes per se violation of un convention against torture.

all persons arrested , detained according provisions of section 1021, including detained on u.s. soil, whether detained indefinitely or not, required held united states armed forces. law affords option have u.s. citizens detained armed forces requirement not extend them, foreign persons. lawful resident aliens may or may not required detained armed forces, on basis of conduct taking place within united states .

during debate on senate floor, levin stated administration officials reviewed draft language provision , recommended additional changes. able accommodate recommendations, except administration request provision apply detainees captured overseas , there s reason that. here, difference modest, because provision excludes u.s. citizens. excludes lawful residents of united states, except extent permitted constitution. covered persons left illegally in country or on tourist visa or other short-term basis. contrary press statements, detainee provisions in our bill not include new authority permanent detention of suspected terrorists. rather, bill uses language provided administration codify existing authority has been upheld in federal courts .

a presidential policy directive entitled requirements of national defense authorization act regarding procedures implementing §1022 of ndaa issued on february 28, 2012, white house. directive consists of eleven pages of specific implementation procedures including defining scope , limitations. judge kathrine b. forrest wrote in hedges v. obama: directive provides specific guidance scope of procedures , standard covered persons determinations. specifically, states covered persons applies person not citizen of united states , member or part of al-qaeda or associated force acts in coordination or pursuant direction of al-qaeda; , participated in course of planning or carrying out attack or attempted attack against united states or coalition partners (see p. 11–12). under procedures released white house military custody requirement can waived in wide variety of cases. among waiver possibilities following:

the suspect s home country objects military custody
the suspect arrested conduct conducted in united states
the suspect charged non-terrorism offense
the suspect arrested state or local law enforcement
a transfer military custody interfere efforts secure cooperation or confession
a transfer interfere joint trial




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^ greenwald, glenn, obama sign indefinite detention bill law, salon.com, 14 december 2011: [2].
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^ jeralyn (28 february 2012). obama issues rules determining civilian vs military custody of detainees . talkleft: politics of crime. retrieved 5 january 2013. 
^ fact sheet: procedures implementing section 1022 of national defense authorization act fiscal year 2012 (pdf). white house. white house. 28 february 2012. retrieved 5 january 2013. 
^ hedges v. obama, 12-cv-00331 (u.s. district court, southern district of new york (manhattan) may 16, 2012).
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