Tag: NDAA

Crossposted from Antemedius

The White House on Wednesday said that Obama – after a week or so of making empty threats to try to pre-emptively defuse any tentative whimpering thoughts of  opposition among the peasants to it – has changed his mind and now announces that he will not veto the controversial 2012 National Defense Authorization Act (NDAA).

The president’s spokesman Carney Barker said lawmakers who crafted a compromise version from rival Senate and House versions of the legislation had addressed his reluctance about growing a pair and publicly taking ownership of the tough rules on detainees contained in Sections 1031 and 1032 of the act.

Sections 1031 and 1032 authorize the U.S. President to at his whim indefinitely detain and tie to their bedposts anyone anywhere he in his sole discretion decides to label as “enemy combatants” anywhere in the world without charge or trial forever, and have them be held in military custody stripped of all constitutional rights such as habeas corpus, the right to an attorney, the right to face their accusers, and other ridiculous rights and freedoms that he knows people in other parts of the world hate them for having.

Civil liberties advocates and others were furious at lawmakers for the broad scope of the provisions, which allows U.S. citizens on U.S. soil to be indefinitely detained without trial. Now the gloves are off and he can just grab anyone anytime off the street who happens – even without obvious reason – to excite him.

“Constitution be damned, we’re dealing with republicans badmouthing him in public all over town every chance they get like they think he’s their boyfriend” said Press Secretary Carney Barker, who also noted that “Unlike previous president Bush who kept his Dick in an office down the hall, Obama has been whispering sweet nothings and been publicly Dick-less since he was elected, but no longer. Being in bed with republicans has been making his head throb for three long years, and now he’s finally standing up!”.

Obama chief complaint had been that the goddamn piece of paper might continue to handcuff him as badly as another goddamn piece of paper so far has, keeping him as weak and powerless as he has been the past three years since his inauguration, but his handlers have finally convinced him that you just can’t go putting restrictions on the unitary executive, after all, or republicans might continue to bipartisanly call him “weak on national security”.  

Cross posted from The Stars Hollow Gazette

Welcome to the new America. With the “last minute” changes to the National Defense Authorization Act, the White House Press Sectary announced that President Obama will sign it contrary to his earlier threat to veto the bill. The bill would deny suspected terrorists, even U.S. citizens seized within the nation’s borders, the right to trial and subject them to indefinite detention.:

We have been clear that “any bill that challenges or constrains the President’s critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation would prompt the President’s senior advisers to recommend a veto.”  After intensive engagement by senior administration officials and the President himself, the Administration has succeeded in prompting the authors of the detainee provisions to make several important changes, including the removal of problematic provisions. While we remain concerned about the uncertainty that this law will create for our counterterrorism professionals, the most recent changes give the President additional discretion in determining how the law will be implemented, consistent with our values and the rule of law, which are at the heart of our country’s strength. This legislation authorizes critical funding for military personnel overseas, and its passage sends an important signal that Congress supports our efforts as we end the war in Iraq and transition to Afghan lead while ensuring that our military can meet the challenges of the 21st century.

As a result of these changes, we have concluded that the language does not challenge or constrain the President’s ability to collect intelligence, incapacitate dangerous terrorists, and protect the American people, and the President’s senior advisors will not recommend a veto.  However, if in the process of implementing this law we determine that it will negatively impact our counterterrorism professionals and undercut our commitment to the rule of law, we expect that the authors of these provisions will work quickly and tirelessly to correct these problems.

Benjamin Wittes at Lawfare gives a quick and dirty analysis from conference report for the NDAA (pdf):

• The Senate has prevailed on the question of AUMF reaffirmation. The House bill, recall, would have contained a general reaffirmation of the AUMF, whereas the Senate language would only have reaffirmed that the existing AUMF authorized detention operations. The conference report has adopted the Senate approach. (See Sec. 1021.)
• A watered-down version of the Senate’s mandatory detention provision remains in the bill. (See Sec. 1022.) On the quickest of reads, it seems to apply only to those who are “members of” or “part of” (not supporters of) Al Qaeda and those associated forces that act in coordination with it or at Al Qaeda’s direction, not to the Taliban. It does not extend to citizens and applies to permanent resident aliens only for conduct in the United States to whatever extent the Constitution permits. And it contains the following new disclaimer: “Nothing in this section shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person, regardless of whether such covered person is held in military custody.” To put it simply, what has emerged is mush.
• The conferees have adopted the Senate’s approach to codifying the Guantanamo review process. (See Sec. 1023.) The House had laid out detailed procedures to replace those in President Obama’s executive order. The Senate, by contrast, had merely required the promulgation of procedures that tweaked aspects of the executive order around the edges. The final bill, with very minor adjustments, looks like the Senate version.
• The Senate’s requirement for new procedures for status determinations for “long-term detention” has survived-with slight tweaks. (See Sec. 1024.) The House got inserted language that clarifies that these procedures-which include counsel and a hearing before a military judge-are not required for detainees who have access to habeas. And the definition of “long term detention” is left to the Defense Department. So the provision, depending on how the executive branch implements it, could be important or could apply to a null-set of detainees.
• The House bill’s requirement that the administration create a national security protocol governing detainee interactions with the outside world has survived-but with an important change. (See Sec. 1025.) The House version required a national security protocol for each detainee. The conference report, by contrast, requires a single national security protocol governing the Guantanamo population at large.
• The conference report unsurprisingly contains language forbidding the expenditure of fiscal year 2012 money building detention facilities in the United States to house Guantanamo detainees. (See Sec. 1026.)
• It also contains language forbidding the use of fiscal year 2012 money to bring Guantanamo detainees to the United States-including for trial. (See Sec. 1027.)
• It also contains the Senate version of the overseas transfer restrictions for Guantanamo detainees. (See Sec. 1028.)
• The House’s requirement for consultation between prosecutors and the Pentagon before initiating a terrorist prosecution has survived for foreign Al Qaeda figures and detainees abroad. (See Sec. 1029.)
• It also contains the uncontroversial clarification of the right to plead guilty in military commission capital trials. (See Sec. 1030.)
• The House’s prohibition of civilian trials is gone.

h/t David Dayen at FDL

Cross posted from The Stars Hollow Gazette

Freedom’s Just another word for nothin’ left to lose. ~ Kris Kristofferson, “Me And Bobby Mcgee“

They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety. ~ Benjamin Franklin

“We’re going to destroy it before they can get their hands on it. You can take away out lives but only we can take away out freedom.“ ~ Jon Stewart

Cross posted from The Stars Hollow Gazette

As per Sen. Karl Levin, Obama requested that the language barring the indefinite detention of US citizens be removed from the National Defense Authorization Bill. This doesn’t exonerate Levin or the other 97 Senators who voted “aye” on this travesty of legislation.

We have only a few days to speak up to Congress before the President signs NDAA Section 1031, permitting citizen imprisonment without evidence or a trial. Congress plans to give it to him to sign by Dec 9. But if we act urgently to raise awareness among our friends, family, and colleagues, we can still prevent this. Here is what we can do:

1) Americans must know about this to stop it. Urgently pass this petition as widely as possible: http://www.change.org/petition… … – Contact the media by any means available to you. ZERO news stories have covered this Chairman Levin clip yet!

2) Congress can still block the law before December 9. Write and call your Representative and Senator telling them to stop NDAA Section 1031.

Contact your Representative: http://writerep.house.gov/writ…

Contact your Senator: http://www.senate.gov/general/…

3) Write and call the White House to tell the President you won’t sit by and watch NDAA Section 1031 become law: http://www.whitehouse.gov/cont…

4) Stay smart — To slow down journalists and concerned citizens, it appears Section 1032 was deliberately crafted to distract from Section 1031. However, section 1032 is NOT the citizen imprisonment law. Disturbingly, this confusion is helping Section 1031 to slip by the American people. Do NOT fall for the misdirection, stay informed and urgently work to stop NDAA Section 1031.

We need to stop Obama and Congress from trashing the Constitution.

Up Date 12.8.2011: The web site Lawfare has an excellent two part analysis and side by side comparison of the House and Senate versions of NDAA. Written by Benjamin Wittes, it is an enlightening read on the flaws of both bills:

As the House of Representatives and the Senate head to conference on the NDAA, I thought it might be useful to analyze the similarities and differences between the counterterrorism provisions of the two versions of the bill. People sometimes talk about the NDAA as though both houses are on the same track. And there are some similar themes. But the two bills are also quite different. And these difference give rise to opportunities in conference: opportunities to emerge with far better policy than either bill presents on its own, and opportunities for mischief as well.

In this pair of posts, which is organized thematically and loosely according to the sequence of provisions in the House version of the bill, I am going to do a kind of side-by-side analysis. In each section that follows, I will start with a discussion of the House bill, which is longer and more involved, then describe how the analogous Senate provision (if one exists) differs. I will then discuss what I think the optimal realistic policy outcome looks like given the two versions. I am not going to rehash the merits or lack thereof of the specific provisions, all of which we have discussed elsewhere. My point is simply to highlight where the Congress has a clear position and where the houses are reading from different playbooks.

The Senate version of the bill is available here (pdf), with the relevant section running from pp. 426-445. The House version of the bill is available here (pdf) and runs from pp. 567-603. As this will get long, I will break it up into two posts.

House-Senate Side-by-Side of NDAA Provisions: Part I

House-Senate Side-by-Side of NDAA Provisions: Part II

Cross posted from The Stars Hollow Gazette

If anyone thought for a second that Barack Obama’s threatened veto of the Senate’s passage of legislation that would allow for indefinite detention of Americans, think again. From Washington Blog via naked capitalism:

And at first, I – like many others – assumed that Obama’s threat to veto the bill might be a good thing. But the truth is much more disturbing.

As former Wall Street Street editor and columnist Paul Craig Roberts correctly notes:

   The Obama regime’s objection to military detention is not rooted in concern for the constitutional rights of American citizens. The regime objects to military detention because the implication of military detention is that detainees are prisoners of war. As Senate Armed Services Committee Chairman Carl Levin put it: Should somebody determined “to be a member of an enemy force who has come to this nation or is in this nation to attack us as a member of a foreign enemy, should that person be treated according to the laws of war? The answer is yes.”

   Detainees treated according to the laws of war have the protections of the Geneva Conventions. They cannot be tortured. The Obama regime opposes military detention, because detainees would have some rights. These rights would interfere with the regime’s ability to send detainees to CIA torture prisons overseas. (Yes, Obama is still apparently allowing “extraordinary renditions” to torture people abroad.) This is what the Obama regime means when it says that the requirement of military detention denies the regime “flexibility.”

   The Bush/Obama regimes have evaded the Geneva Conventions by declaring that detainees are not POWs, but “enemy combatants,” “terrorists,” or some other designation that removes all accountability from the US government for their treatment.

   By requiring military detention of the captured, Congress is undoing all the maneuvering that two regimes have accomplished in removing POW status from detainees.

   A careful reading of the Obama regime’s objections to military detention supports this conclusion. (See http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/saps1867s_20111117.pdf)

   The November 17 letter to the Senate from the Executive Office of the President says that the Obama regime does not want the authority it has under the Authorization for Use of Military Force (AUMF), Public Law 107-40, to be codified. Codification is risky, the regime says. “After a decade of settled jurisprudence on detention authority, Congress must be careful not to open a whole new series of legal questions that will distract from our efforts to protect the country.”

   In other words, the regime is saying that under AUMF the executive branch has total discretion as to who it detains and how it treats detainees. Moreover, as the executive branch has total discretion, no one can find out what the executive branch is doing, who detainees are, or what is being done to them. Codification brings accountability, and the executive branch does not want accountability.

  Those who see hope in Obama’s threatened veto have jumped to conclusions if they think the veto is based on constitutional scruples.

Even if Obama’s threatened veto was for more noble purposes, the fact is that it would not change anything, because the U.S. government claimed the power to indefinitely detain and assassinate American citizens years ago. [..]

The Obama administration has also said for more than a year and a half it could target American citizens for assassination without any trial or due process. [..]

It’s hard to believe that any genuine democracy would accept a claim by its leader that he could have anyone killed simply by labeling them an “enemy.” It’s hard to believe that any adult with even the slightest knowledge of history or human nature could countenance such unlimited, arbitrary power, knowing the evil it is bound to produce. Yet this is what the great and good in America have done. Like the boyars of old, they not only countenance but celebrate their enslavement to the ruler.

(emphasis mine)

I had not read Dahlia Lithwick’s article at Slate on military detentions when I wrote about Obama’s veto threat of the NDAA because he objected to military making the decision:

Now, perhaps you suspect these thorny questions about the handling of terrorists are best left to the experts, and that the Senate was simply listening to them. Such suspicions would be unfounded. The secretary of defense, the director of national intelligence, the director of the FBI (pdf), the CIA director, and the head of the Justice Department’s national security division have all said that the indefinite detention provisions in the bill are a bad idea. And the White House continues to say that the president will veto the bill if the detainee provisions are not removed. It sees the proposed language as limiting its flexibility.

There may be no good outcome here. It could be an unholy victory for both the prospect of unbridled executive power and for the collapse of any meaningful separation between domestic law enforcement and military authority. The law manages to expand the role of the military in domestic terror prosecutions and also limit the authority of the civilian justice system to thwart terrorism. These were legal principles to which even the Bush administration said they adhered.

No good will come of this no matter what Obama and Congress do or don’t do. This “war on terror” has now become the “war on liberty” by our own government.