President Barack Obama rang in the New Year by signing the NDAA law with its provision allowing him to indefinitely detain citizens. It was a symbolic moment to say the least. With Americans distracted with drinking and celebrating, Obama signed one of the greatest rollbacks of civil liberties in the history of our country . . . and citizens partied only blissfully into the New Year.
Ironically, in addition to breaking his promise not to sign the law, Obama broke his promise on signing statements and attached a statement that he really does not want to detain citizens indefinitely.
Obama insisted that he signed the bill simply to keep funding for the troops. It was a continuation of the dishonest treatment of the issue by the White House since the law first came to light. As discussed earlier, the White House told citizens that the President would not sign the NDAA because of the provision. That spin ended after sponsor Sen. Carl Levin (D., Mich.) went to the floor and disclosed that it was the White House that insisted that there be no exception for citizens in the indefinite detention provision.
The latest claim is even more insulting. You do not “support our troops” by denying the principles for which they are fighting. They are not fighting to consolidate authoritarian powers in the President. The “American way of life” is defined by our Constitution and specifically the Bill of Rights. Moreover, the insistence that you do not intend to use authoritarian powers does not alter the fact that you just signed an authoritarian measure. It is not the use but the right to use such powers that defines authoritarian systems.
The almost complete failure of the mainstream media to cover this issue is shocking. Many reporters have bought into the spin of the Obama Administration as they did the spin over torture by the Bush Administration. Even today reporters refuse to call waterboarding torture despite the long line of cases and experts defining waterboarding as torture for decades. On the NDAA, reporters continue to mouth the claim that this law only codifies what is already the law. That is not true. The Administration has fought any challenges to indefinite detention to prevent a true court review. Moreover, most experts agree that such indefinite detention of citizens violates the Constitution.
There are also those who continue the long-standing effort to excuse Obama’s horrific record on civil liberties by either blaming others or the times. One successful myth is that there is an exception for citizens. The White House is saying that changes to the law made it unnecessary to veto the legislation. That spin is facially ridiculous. The changes were the inclusion of some meaningless rhetoric after key amendments protecting citizens were defeated. The provision merely states that nothing in the provisions could be construed to alter Americans’ legal rights. Since the Senate clearly views citizens are not just subject to indefinite detention but even execution without a trial, the change offers nothing but rhetoric to hide the harsh reality. THe Administration and Democratic members are in full spin — using language designed to obscure the authority given to the military. The exemption for American citizens from the mandatory detention requirement (section 1032) is the screening language for the next section, 1031, which offers no exemption for American citizens from the authorization to use the military to indefinitely detain people without charge or trial.
Obama could have refused to sign the bill and the Congress would have rushed to fund the troops. Instead, as confirmed by Sen. Levin, the White House conducted a misinformation campaign to secure this power while portraying Obama as some type of reluctant absolute ruler, or as Obama maintains a reluctant president with dictatorial powers.
Most Democratic members joined their Republican colleagues in voting for this unAmerican measure. Some Montana citizens are moving to force the removal of these members who they insist betrayed their oaths of office and their constituents. Most citizens however are continuing to treat the matter as a distraction from the holiday cheer.
For civil libertarians, the NDAA is our Mayan moment. 2012 is when the nation embraced authoritarian powers with little more than a pause between rounds of drinks.
So here is a resolution better than losing weight this year . . . make 2012 the year you regained your rights.
Here is the signing statement attached to the bill:
————-
THE WHITE HOUSE
Office of the Press Secretary
FOR IMMEDIATE RELEASE
December 31, 2011
Statement by the President on H.R. 1540
Today I have signed into law H.R. 1540, the “National Defense Authorization Act for Fiscal Year 2012.” I have signed the Act chiefly because it authorizes funding for the defense of the United States and its interests abroad, crucial services for service members and their families, and vital national security programs that must be renewed. In hundreds of separate sections totaling over 500 pages, the Act also contains critical Administration initiatives to control the spiraling health care costs of the Department of Defense (DoD), to develop counterterrorism initiatives abroad, to build the security capacity of key partners, to modernize the force, and to boost the efficiency and effectiveness of military operations worldwide.
The fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists. Over the last several years, my Administration has developed an effective, sustainable framework for the detention, interrogation and trial of suspected terrorists that allows us to maximize both our ability to collect intelligence and to incapacitate dangerous individuals in rapidly developing situations, and the results we have achieved are undeniable. Our success against al-Qa’ida and its affiliates and adherents has derived in significant measure from providing our counterterrorism professionals with the clarity and flexibility they need to adapt to changing circumstances and to utilize whichever authorities best protect the American people, and our accomplishments have respected the values that make our country an example for the world.
Source: ABC
TJ:
Last time I looked the Magna Carta and the judgments of Pontius Pilate were — at best — merely persuasive authority in our courts. Let’s keep it within the past hundred years or so
DonS:
I am waiting to see who this paramilitary force is who’s been intimidating you. Please explain how you’ve been detered in any meaningful way by members of any organized or disorganized facist group.
You are using the section numbers from the Senate version of the bill instead of the final, differences resolved, House version of the bill that was signed into law. You want 1021 and 1022, not 1031 and 1032. Otherwise, spot on.
What, are you kidding Mespo? No organized force to intimidate. Just because it’s not allied with any one party doesn’t mean it isn’t their under the banner of both parties.
You’re in danger of being a joke.
Oh yeah let’s remember Pontius Pilate was “Reluctant” as well..
This doesn’t just violate The U.S. Constitution, it violates the God Damn Magna Carta..!
Good post mespo727272.
Good posts, mespo.
Liberty1st:
You are wise to consider the parallels to 1933 in recent events, and you’re in good company with the likes of Naomi Wolf and others. However the comparison fails when you consider Bush voluntarily gave up his power by the election of 2008. Also there is no radicalized para-military force attached to either party used to intimidate those with whom they disagree. Finally, I see no move to nationalize industry or scapegoat members of society as a policy of either party. While there are always threats of facism, there are not enough signs to conclude it’s by design or inevitable.
President Obama has been contacted by victims of advanced, energy based technologies and has given no reply.
He has continued to ignore victims who are struggling to survive the torture of energy weapons that have been developed by the military for decades.
I publish here (my last column): http://www.examiner.com/civil-rights-in-cleveland/microchips-military-uses-and-criminal-allegations
My website is: http://www.cfasw.net
Please help us and publicize this issue. This has got to come out and have President Obama and the congress confronted with it. We need a congressional investigation. Victims are around the world and across the U.S. who need to be heard, protected and have their lives and health restored.
Jill:
Thanks, Jill. I read Greenwald and Iusually respect his opinion. However, his is far from a measured response. He is an absolutest in matters of civil rights and I believe he overstates his case. Let me say by way of disclaimer that the NDAA cold be used to infringe rights but as currently written I don’t see that within the four corners of the law. Greenwald says that “until the end of hostilities” means “indefinite.” I think the exact language goes “It simply cannot be any clearer within the confines of the English language that this bill codifies the power of indefinite detention.” Well that is not legally true an Greenwald knows it as a lawyer. There is never any specific time when hostilities end in a war, but we know there always is an end. For example, we know al Quaeda is on its last leg structurally and we are even now negotiating with the Taliban to end their resistance in Afghanistan. We also know the SCOTUS does not consider the detention of conbatants as “indefinite.” Justice O’Connor writing in Hamdi expressly stated:
Hamdi contends that the AUMF does not authorize
indefinite or perpetual detention. Certainly, we agree that
indefinite detention for the purpose of interrogation is not
authorized. Further, we understand Congress grant of
authority for the use of necessary and appropriate force
to include the authority to detain for the duration of the
relevant conflict, and our understanding is based on longstanding
law-of-war principles. If the practical circumstances
of a given conflict are entirely unlike those of the
conflicts that informed the development of the law of war,
that understanding may unravel. But that is not the
situation we face as of this date.
Thus the “end of hostilies” is not an indefinite detemtion though the exact date of the end may not be known. Imagine the government being required to state exactly when a war will end. That is untenable.
Greewald also goes too far in contending that Section 1022 exempts US citizens from the requirement of military detention but not the power of the military to detain them. But that position ignores tthe rules of statutory construction and the express language of subsection (a) which states the military “shall” detain covered persons. Thus, the military has no discretion to decide who to detain as its powers derive solely from the statute to do so. The military must detain all covered persons except for “US citizens” and “resident aliens” to whom the requirement for detention does not apply. And let’s face it, if the detainer is mandated to detain everyone covered except you and has no statutory power to do otherwise, does it really matter that through some contorsion of language, the detainer may have some unstated etherial power to detain you too? It’s neither logical nor likely.
The failure of the media is only matched by the disinterest of too many people in the full implications of this bill and its erosion of our democratic rights. We all need a dose of seriousness to clear away the illusions that prevent us from seeing reality posed by this dangerous development. An appropriate response to this terrible turn of events must be expressed from the broadest democratic constituency as soon as possible. A national call to defend democracy, rallying defenders of human rights is in order.
I have read all of the comments above and I scrutinized the Mespo comments. No one else has brought up a couple of things which are glaring. The first are the 1933 Parallels. Some of you have a knowledge of history and might recall the Reichstag Fire and thence the Reichstag Decrees. The Nazis used the burning of their parliament (Reichstag) to blame communist terrorists and set aside all protections of civil liberties. The Holocaust Museum (the U.S. Holocaust Museum provides in part the following:
On February 27, 1933, the German parliament (Reichstag) building burned down due to arson. The government falsely portrayed the fire as part of a Communist effort to overthrow the state.
Using emergency constitutional powers, Adolf Hitler’s cabinet had issued a Decree for the Protection of the German People on February 4, 1933. This decree placed constraints on the press and authorized the police to ban political meetings and marches, effectively hindering electoral campaigning. A temporary measure, it was followed by a more dramatic and permanent suspension of civil rights following the February 27 burning of the parliament building.
Though the origins of the fire are still unclear, in a propaganda maneuver, the coalition government (Nazis and the German Nationalist People’s Party) blamed the Communists. They exploited the Reichstag fire to secure President von Hindenburg’s approval for an emergency decree, the Decree for the Protection of the People and the State of February 28. Popularly known as the Reichstag Fire Decree, the regulations suspended the right to assembly, freedom of speech, freedom of the press, and other constitutional protections, including all restraints on police investigations.
WELL, no Americans seem to analogize the downing of the Twin Towers with the Reichstag Fire and the subsequent disembowlment of civil liberties by each government, the Germans in 1933 and Americans after 9/11. Hitler did not do it by Decree and neither did Bush or Obama.
The Second, events which no one on this blog has mentioned are the International Court at Nuremburg comprised of the United States, England, France and Russia in 1945 and thereafter Nuremberg War Trials conducted by the United States Military Tribunal at Nuremberg immiediately after the international trials. “The Judges Trial” was strikingly similar to what Americans could face in an international tribunal today if there was such an enterprise. Please Google that phrase or Herr Altstoffer. We set up ourselves as Saints in 1945 and 1946 and proclaimed to the world during these trials that the deprivation of rights would never happen again.
I believe that the Hague Conventions and other bodies of jurisprudence should have a full airing on this blog. Otherwise we are just urinating into the wind in the context of neo cons, democrats, republicans, and lapsed Catholics.
I would like to see someone on this blog draft a House Bill to sanctify the right of habeas corpus to any American any where in the world to bring a Writ before any United States District Judge or Magistrate by mail, email, or hot air balloon. Then request Ron Paul to introduce it forthwith or ask him to get off the pot. A series of similar legislation needs to be crafted to repeal some of this Reichstag Fire legislation passed in the previous ten years. I hate to say it but I believe that our President is of the mindset of a predecessor who not all that long ago made the statement: “Let others wallow in Watergate.” He signed this Act into law and we need an alternative.
Liberty First.
“I think a lot needs to be established about the power of the Executive in time of war. It’s a barren wasteland opinion-wise. JT is rightly concerned about the defeat of amendments meant to guarantee civil liberties but it may be that those amendments were seen as superfluous given Hamdi and Hamdan. We’re caught on a tightrope between the opposite poles of Madison (“Perhaps it is a universal truth that the loss of liberty at home is to be charged against provisions against danger, real or pretended from abroad.”) and Cicero (“Laws are silent in time of war.’). It’s hard to know whether to stay put or step forward.” (mespo)
Thank you, mespo, for that was a very helpful post in focusing my thought process.
Mespo,
Here is the answer to your questions. It is long, but worth reading. Also, as I said earlier, Harold Koh laid out Obama’s claim that the could declare anyone he wished, anywhere in the world a terrorist. He also claimed that Obama could detain or kill such a person on his own word. This was in a speech which you can get from the Dept. of Law at the University of Michigan. The talk took place on Nov. 11, 2010. This law is the codification of Obama’s illegal claims. First they came…
“Myth # 1: This bill does not codify indefinite detention
Section 1021 of the NDAA governs, as its title says, “Authority of the Armed Forces to Detain Covered Persons Pursuant to the AUMF.” The first provision — section (a) — explicitly “affirms that the authority of the President” under the AUMF ”includes the authority for the Armed Forces of the United States to detain covered persons.” The next section, (b), defines “covered persons” — i.e., those who can be detained by the U.S. military — as “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.” With regard to those “covered individuals,” this is the power vested in the President by the next section, (c):
It simply cannot be any clearer within the confines of the English language that this bill codifies the power of indefinite detention. It expressly empowers the President — with regard to anyone accused of the acts in section (b) – to detain them “without trial until the end of the hostilities.” That is the very definition of “indefinite detention,” and the statute could not be clearer that it vests this power. Anyone claiming this bill does not codify indefinite detention should be forced to explain how they can claim that in light of this crystal clear provision.
It is true, as I’ve pointed out repeatedly, that both the Bush and Obama administrations have argued that the 2001 AUMF implicitly (i.e., silently) already vests the power of indefinite detention in the President, and post-9/11 deferential courts have largely accepted that view (just as the Bush DOJ argued that the 2001 AUMF implicitly (i.e., silently) allowed them to eavesdrop on Americans without the warrants required by law). That’s why the NDAA can state that nothing is intended to expand the 2001 AUMF while achieving exactly that: because the Executive and judicial interpretation being given to the 20o1 AUMF is already so much broader than its language provides.
But this is the first time this power of indefinite detention is being expressly codified by statute (there’s not a word about detention powers in the 2001 AUMF). Indeed, as the ACLU and HRW both pointed out, it’s the first time such powers are being codified in a statute since the McCarthy era Internal Security Act of 1950, about which I wrote yesterday.
Myth #2: The bill does not expand the scope of the War on Terror as defined by the 2001 AUMF
This myth is very easily dispensed with. The scope of the war as defined by the original 2001 AUMF was, at least relative to this new bill, quite specific and narrow. Here’s the full extent of the power the original AUMF granted:
(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Under the clear language of the 2001 AUMF, the President’s authorization to use force was explicitly confined to those who (a) helped perpetrate the 9/11 attack or (b) harbored the perpetrators. That’s it. Now look at how much broader the NDAA is with regard to who can be targeted:
Section (1) is basically a re-statement of the 2001 AUMF. But Section (2) is a brand new addition. It allows the President to target not only those who helped perpetrate the 9/11 attacks or those who harbored them, but also: anyone who “substantially supports” such groups and/or “associated forces.” Those are extremely vague terms subject to wild and obvious levels of abuse (see what Law Professor Jonathan Hafetz told me in an interview last week about the dangers of those terms). This is a substantial statutory escalation of the War on Terror and the President’s powers under it, and it occurs more than ten years after 9/11, with Osama bin Laden dead, and with the U.S. Government boasting that virtually all Al Qaeda leaders have been eliminated and the original organization (the one accused of perpetrating 9/11 attack) rendered inoperable.
It is true that both the Bush and Obama administration have long been arguing that the original AUMF should be broadly “interpreted” so as to authorize force against this much larger scope of individuals, despite the complete absence of such language in that original AUMF. That’s how the Obama administration justifies its ongoing bombing of Yemen and Somalia and its killing of people based on the claim that they support groups that did not even exist at the time of 9/11 – i.e., they argue: these new post-9/11 groups we’re targeting are “associated forces” of Al Qaeda and the individuals we’re killing “substantially support” those groups. But this is the first time that Congress has codified that wildly expanded definition of the Enemy in the War on Terror. And all anyone has to do to see that is compare the old AUMF with the new one in the NDAA.
Myth #3: U.S. citizens are exempted from this new bill
This is simply false, at least when expressed so definitively and without caveats. The bill is purposely muddled on this issue which is what is enabling the falsehood.
There are two separate indefinite military detention provisions in this bill. The first, Section 1021, authorizes indefinite detention for the broad definition of “covered persons” discussed above in the prior point. And that section does provide that “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.” So that section contains a disclaimer regarding an intention to expand detention powers for U.S. citizens, but does so only for the powers vested by that specific section. More important, the exclusion appears to extend only to U.S. citizens “captured or arrested in the United States” — meaning that the powers of indefinite detention vested by that section apply to U.S. citizens captured anywhere abroad (there is some grammatical vagueness on this point, but at the very least, there is a viable argument that the detention power in this section applies to U.S. citizens captured abroad).
But the next section, Section 1022, is a different story. That section specifically deals with a smaller category of people than the broad group covered by 1021: namely, anyone whom the President determines is “a member of, or part of, al-Qaeda or an associated force” and “participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.” For those persons, section (a) not only authorizes, but requires (absent a Presidential waiver), that they be held “in military custody pending disposition under the law of war.” The section title is “Military Custody for Foreign Al Qaeda Terrorists,” but the definition of who it covers does not exclude U.S. citizens or include any requirement of foreignness.
That section — 1022 — does not contain the broad disclaimer regarding U.S. citizens that 1021 contains. Instead, it simply says that the requirement of military detention does not apply to U.S. citizens, but it does not exclude U.S. citizens from the authority, the option, to hold them in military custody. Here is what it says:
The only provision from which U.S. citizens are exempted here is the “requirement” of military detention. For foreign nationals accused of being members of Al Qaeda, military detention is mandatory; for U.S. citizens, it is optional. This section does not exempt U.S citizens from the presidential power of military detention: only from the requirement of military detention.
The most important point on this issue is the same as underscored in the prior two points: the “compromise” reached by Congress includes language preserving the status quo. That’s because the Obama administration already argues that the original 2001 AUMF authorizes them to act against U.S. citizens (obviously, if they believe they have the power to target U.S. citizens for assassination, then they believe they have the power to detain U.S. citizens as enemy combatants). The proof that this bill does not expressly exempt U.S. citizens or those captured on U.S. soil is that amendments offered by Sen. Feinstein providing expressly for those exemptions were rejected. The “compromise” was to preserve the status quo by including the provision that the bill is not intended to alter it with regard to American citizens, but that’s because proponents of broad detention powers are confident that the status quo already permits such detention.” (Dec. 16, Glenn Greenwald)
Mespo,
That was an outstanding job of parsing!