Civil liberties

No Indefinite Detention. No Closure of Gitmo.

President Obama signed the National Defense Authorization Act into law today and with it issued an executive statement clarifying his objections and interpretations of the law.

You can read the entire statement here, but I will highlight two sections which I consider to be the most relevant to recent discussion.

Section 1021 affirms the executive branch’s authority to detain persons covered by the 2001 Authorization for Use of Military Force (AUMF) (Public Law 107-40; 50 U.S.C. 1541 note). This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then. Two critical limitations in section 1021 confirm that it solely codifies established authorities. First, under section 1021(d), the bill does not “limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.” Second, under section 1021(e), the bill may not be construed to affect any “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.” My Administration strongly supported the inclusion of these limitations in order to make clear beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF. Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.

Sections 1026-1028 continue unwise funding restrictions that curtail options available to the executive branch. Section 1027 renews the bar against using appropriated funds for fiscal year 2012 to transfer Guantanamo detainees into the United States for any purpose. I continue to oppose this provision, which intrudes upon critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests. For decades, Republican and Democratic administrations have successfully prosecuted hundreds of terrorists in Federal court. Those prosecutions are a legitimate, effective, and powerful tool in our efforts to protect the Nation. Removing that tool from the executive branch does not serve our national security. Moreover, this intrusion would, under certain circumstances, violate constitutional separation of powers principles.

There you have it.

Those who published columns as recently as two days ago playing the role of town crier on indefinite detention of U.S. citizens should be embarrassed. As should those who have published columns claiming this was already signed into law.

By my count, this marks the fifth time since 2009 congress has unanimously blocked this administration from closing Guantanamo Bay. The Consolidated Appropriations Act of 2012, which was signed on December 23rd, was the fourth time.

Can we put this dead horse to rest now?

  • Gussie Jives

    Bob, I got huge respect for ya, and I’ve found your coverage of the NDAA stimulating, but I’ve also been listening to Cenk’s coverage, and ultimately I think he’s right on this that the bill’s language can indeed allow US citizens to be detained:

    Now, even giving President Obama the benefit of the doubt that he won’t do anything to US citizens, there’s very little stopping President Romney or Gingrich from doing it, especially for Americans captured abroad, given the language.

    Cenk’s laid out a compelling case, and why would the ACLU purposefully get this wrong too?

    • ranger11

      What’s a Cenk and why should I care what it says?

      • villemar
        • Gussie Jives

          Wow, that’s quite the rant. Goes into a lot of things not related to the NDAA, and the stuff about the NDAA is labeled as “lies” but never explained.

          And Cenk does here exactly what Milt Shook asked: he explained how the wording means the prohibitions only apply section 1021, but not 1022 or 1023 which also include language regarding “requirements” to hold detainees in military custody. NONE of the other dissenting blogs I’ve read parse this language.

          If Bob and ABL and Milt Shook and all of you are correct, why did Obama put in his signing statement “my administration” will not use this to indefinitely detain US citizens, rather than “this bill does not authorize indefinite detention of US citizens”?

          • villemar

            Because he’s really a bloodthirsty warmongering Hitleresque Neocon that wants to round people up and put them into FEMA camps.

          • ranger11

            And he fucks rats….no, that’s Cenk.

          • Gussie Jives

            I don’t think Obama has any designs for anything remotely like that. I’m interested in his phrasing of the signing statement and the potential for future President Republican to abuse this law.

            If this bill does not allow indefinite detention of US citizens, why phrase it as “my administration” will not do it?

          • villemar

            I have no idea dude. You should write him and ask him if it concerns you.

  • raistuumum

    Here’s a great post at Reddit about the signing:

    “TL;DR The President’s opponents played the electorate like a fiddle and will get away with it because people don’t seem to realize they’ve been tricked into being angry at the wrong person.

    He signed it because if he didn’t, defense spending including benefits to veterans and their families would not have been authorized. The sections of NDAA that many people here seem to have a problem with are sections that were added into the document by primarily Republican legislators and which the President adamantly opposes but was powerless to stop. I’ll repeat that: the parts of this bill that many people here hate were included against the President’s wishes and in a way that he is powerless to stop. The only way he could have stopped these sections from being included would have been to try to veto the bill in its entirety, a move that would have been both political suicide as well as being futile, as Congress would simply have overridden him. He is explicit in his opposition to exactly the parts of the bill everyone here hates, going so far as to detail exactly which sections he opposes and why.

    You’ll notice that the bill also restricts his ability to close Guantanamo Bay; this isn’t coincidence. These sections are openly hostile to the President’s stated mandate – they are effectively a giant ‘fuck you’ to the President, as well as a nasty way of eroding the President’s support with his own base. Observe:

    1. Draft legislation that is almost guaranteed to piss of the President but more importantly piss off his base.

    2. Attach said legislation to another piece of larger, more important legislation like, say, the Defense Spending budget for the entire year so that any attempt to dislodge the offensive legislation will result in a political shitstorm, as well as place the larger legislation in jeopardy.

    3. Once attached, begin a PR campaign that highlights the offending legislation and brings it to the attention of as many media outlets as possible – not just the traditional media, but alternative media outlets as well (Fox news, MSNBC, Media Matters, Huff-Po, Infowars, etc.)

    4. Here’s where it gets tricky: Simultaneously, speak to both your party’s base and the opposition’s. To your base, argue that the legislation is necessary to ‘Keep America safe’ and that the President, by opposing it, is clearly soft of terrorism and endangering the military by trying to strip the legislation out. At the same time, sit back and watch your opponent’s liberal supporters tear into the offending legislation as being dangerous, anti-democratic, and a threat to civil liberties. You know they will; that’s what they care about most. You’ve designed legislation that will make them froth at the mouth. You don’t even have to keep flogging the message; one look at the legislation will be enough to convince most people that it is anathema to everything they hold dear. Because it is.

    5. Pass the ‘parent’ legislation. Doing so forces the President to sign it or attempt to veto it. Since the legislation in question just so happens to be the military’s operating budget, a veto is out of the question. The President must sign the bill, you get the legislation you wanted, but you also practically guarantee that your opponent’s base will be furious at him for passing a bill they see as evil. Even if he tries to explain in detail why he had to sign it and what he hates about it, it won’t matter; ignorance of the American political process, coupled with an almost militant indifference to subtle explanations will almost ensure that most people will only remember that the President passed a bill they hate.

    6. Profit. you get the legislation you want, while the President has to contend with a furious base that feels he betrayed them – even though he agrees with their position but simply lacked the legislative tools to stop this from happening. It’s a classic piece of misdirection that needs only two things to work: A lack of principles (or a partisan ideology that is willing to say anything – do anything – to win), and an electorate that is easy to fool.

    This is pretty basic political maneuvering and the biggest problem is that it almost always works because most people either don’t know or don’t care how their political system actually functions. The President was saddled with a lose-lose situation where he either seriously harmed American defense policy (political suicide), or passed offensive legislation knowing that it would cost him political capital. To all of you here lamenting that you ever voted for this ‘corporate shill’, congratulations: you are the result the Republicans were hoping for. They get the law they want, they get the weakened Presidential candidate they want. And many of you just don’t seem to see that. You don’t have to like your country’s two-party system, but it pays to be able to understand it so that you can recognize when it’s being used like this.”

  • jjasonham

    Right. This bill was veto proof, and the Administration rejected it until it took detainment authority from the Military. Can you imagine if it was up to a nebulous like “the Military”?

    As far as the idea that Obama should have “taken a stance” and vetoed it anyway: It was veto proof, and in order to get indefinite detention authority out of the military’s hands, he played it this way. If he had vetoed it, they probably would have put it back through with the military’s authority in it…veto proof and all.

    Congress is the freaking problem! Hold them accountable! But the soundbites are easiest when they blame the President for everything.

  • holyreality

    Two words qualify this, “My Administration”.

    I have full confidence that President Obama will keep his word on this.

    It is when a POTUS with more of a regime flavor(think W) who’s legal staff split hairs to torture, and in the future, possibly arrest and hold the “any person” from the AUMF after our current administration is done that concerns me.

    But then, I still fantasize about a Congress that writes bills without kow-towing to the lobby, so I guess a fantasy of political enemies avoiding the King’s dungeon is moot too.

  • rgbyref

    With due respect, it ain’t HIS administration I’m worried about.

  • Nicholas Gallias

    A signing statement?
    Since when did that have precedence?
    What a president signs and what happens are two different things.
    Google is your friend.

    • nicole

      Listen, smartass, we know what a signing statement is and isn’t.

      We are concerned about the NDAA, but it was going to happen, and blaming it all on Pres. Obama is not the fucking answer. It is also not the end of the fucking world.

      Adding…….had it not been for the ratfucker sheeples staying home in 2010, this probably would not have happened.

      Read these and learn something.

      1. Lawfare › The NDAA: The Good, the Bad, and the Laws of War–Part I

      2. Lawfare › The NDAA: The Good, the Bad, and the Laws of War–Part II

      • bill

        Laws of war! What freakin war! The war on terror will never be over. especially when it is so easy to manufacture. And by being aggressors around the world for the last 100 years we have created this environment. Don’t give me the ‘they hate us cause we are free BS’ either!

        • villemar

          I know, we are in 3,547 illegal wars!!!11!!!11!!!!!!!1!!

          P.S. I agree about the past 100 years part. I’m horribly, devastatingly ashamed towards our belligerence towards poor innocent Nazi Germany and Imperial Japan. Every night I cry and cut myself over this.

          If only we had a Baby Jesus Manning back then, we might have had a chance to stop that bloodthirsty neocon war criminal baby killer FDR!!

          Oh wait, we did actually. Meet Tyler Kent:

        • mrbrink

          “And by being aggressors around the world for the last 100 years we have created this environment.”

          Hey, we’re not the fucking Nazis, here.

          Our middle east meddling can be traced in large part to weapons manufacturers and big oil and it is the Republican party by and large who has protected their profits and exploits around the world at the expense of diminished quality of life here at home, especially since George H.W. Bush was promoted from Director of the CIA because Iran Contra wasn’t some forgettable Watergate scandal.

          Donald Rumsfeld shaking Saddam Hussein’s hand while we backed the killings of hundreds of thousands of Iranians during the Iran/Iraq war wasn’t just expedience. We shot an Iranian commercial airliner out of the sky and didn’t even apologize. Republicans propped up a dictator with biological and chemical weapons to make war on Iran because that’s their idea of promoting and protecting democracy around the world– by promoting dictators and authoritarians, like Mushareff in Pakistan, Saddam in Iraq, Gaddafi in Libya, or by leveraging our future to an authoritarian government in China to give millionaires more money to use to destabilize the global economy with their deregulated financial institutions.

          Republicans promote a for-profit right wing death squad foreign policy. That’s all there is to say about that, really.

          Under president Obama and his foreign policy team, we do things differently now. We encourage, promote and protect actual democratic uprisings and organic claims to power, despite the historical efforts and pressures by conservatives to let democracy around the world die on the vine.

          It was the CEO mentality of Dick Cheney and Donald Rumsfeld who led the war profiteering cause with sadistic post cards from Abu Ghraib.

          So let’s try to put the “cause” in cause & effect in the proper perspective. We didn’t get here yesterday and we won’t leave the world to its own devices tomorrow. But we can elect a congress that will fight the good fight and who’s to say we’ll always be fighting terrorists if we follow that path?

          But had George H.W. Bush, Dick Cheney, Donald Rumsfeld, Ronald Reagan, and George W. Bush– All proudly, shady-as-fuck Republicans, been kept out of positions of authority and power we’d be in a much different world today. I’m confident we’d be much better off without their bloody footprint on history.

        • ranger11

          Now why you gonna make me wanna burn a flag now?!

  • WiseGuyEddie

    I am so glad you wrote this article. However, be prepared to feel like Jerry McGuire after his “mission statement” circulated the office. Seems the primary difference between emoprogs and teabaggers is: emos cry “The sky is falling” while teabaggers gleefully pray for god to bring our demise

  • Feral Hussein Like

    You know they won’t because their paranoia is in hyper-drive. All these emoprog whiners want to believe is that PBO is Bush allover again. It continues their self-fulfilling prophecy that they are again being deceived and screwed over.

    • maggy

      They are now just as crazy and allergic to facts as the birthers.

    • raistuumum

      Yep, and it can be seen just by some of the ThinkProgress comments, who seem to have just read the headline and not the whole article.