Yes, Pres. Obama, The NDAA DOES Authorize Warrantless, No Due Process, Indefinite Military Detention by the Military of American Civilians

President Obama is about to sign the current National Defense Authorization Act. This of course is one more betrayal by Obama, one more instance of caving and not keeping his word, in this case, his pledge to veto the act because it includes provisions that will allow the warrantless arrest, without due process or judicial review, of United States citizens, and provisions allowing them to be held in indefinite detention by the military, in military prisons.

Apparently we are nearing the end stage of transformation into non-Constitutional state, where the rule of law and due process and habeas corpus are dead, irrelevant, mere pre-9/11 historical bumps in the road to the totalitarian state. All it will take is a suspicion, and the president or some other official can throw an American citizen into our very own developing Gulag, forever. I guess Obama is just preparing the way for President Newt Gingrich, who has declared over the past week that he will just send armed police from Congress out to arrest judges whose rulings he does not agree with.

I note that because of our donations to Obama’s campaign in the last election, I am starting to receive emails already several times a week asking for support and money.

My response at this point? When Hell freezes over.

To say I am disappointed in Obama, on his repeated capitulations to the madness of the GOP; to his bringing in the same economic experts who created the current housing and banking and market crises; and most of all on his grabbing the reigns of the abuses of power and the total disregard for the rule of law established by his predecessor: to say I am disappointed does not even begin to touch the anger and disgust I feel.

The White House is now out there with their PR machine attacking those who would otherwise support Obama on the issue of this bill, and who are calling it what it is because of these powers included in it: The Indefinite Detention Bill. One more round of Dirty F*cking Hippie Punching by the White House. It has been amazing to watch Obama’s surrogates repeated attacks on his core supporters, contrasted with his repeated caves and cowers to the far right, who will never, ever vote for him, no matter what he does or what he says.

Glenn Greenwald, a constitutional scholar who has been following and writing with great insight and knowledge on our slide away from a Constitutional State into tyranny, has written very precisely on just how wrong Obama and his representatives are on this issue. The following quotes the salient points of his argument on the myths and outright false statements coming out of Congress and the White House on this bill. Go and read the whole article. It includes sections with the actual language from the bill that enable and extend this latest, devastating attack on civil liberties and the Constitution.

Condemnation of President Obama is intense, and growing, as a result of his announced intent to sign into law the indefinite detention bill embedded in the 2012 National Defense Authorization Act (NDAA). These denunciations come not only from the nation’s leading civil liberties and human rights groups, but also from the pro-Obama New York Times Editorial Page, which today has a scathing Editorial describing Obama’s stance as “a complete political cave-in, one that reinforces the impression of a fumbling presidency” and lamenting that “the bill has so many other objectionable aspects that we can’t go into them all,” as well as from vocal Obama supporters such as Andrew Sullivan, who wrote yesterday that this episode is “another sign that his campaign pledge to be vigilant about civil liberties in the war on terror was a lie.” In damage control mode, White-House-allied groups are now trying to ride to the rescue with attacks on the ACLU and dismissive belittling of the bill’s dangers.

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.”

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.

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.

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.

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.

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.

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.

Three myths about the detention bill


Author: Ron