Well, not really. But then again, he also didn’t sign a bill authorizing the military to detain U.S. Citizens. The Defense Reauthorization Act of 2012 has a Subtitle D, entitled “Detainee Matters”. Sections 1031 and 1032 deal with military detention of certain persons.
Section 1032(a) states that it “affirms the authority of the . . .armed forces to detain covered persons pending their disposition under the law of war.” There are two categories of covered persons. A person who planned, authorized, committed or aided the terrorist attack of September 11, 2011, or harbored those responsible for the attacks” The second category is a person who “is part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States . . . including any person who has committed a belligerent act or has directly supported such hostilities in aid of enemy forces.”
Disposition under the law of war can include detention until the end of the hostilities that were authorities by the Authorization for the Use of Military Force (the resolution passed by Congress immediately after the terrorist attacks), a trial under the Military Commissions Act of 2009, transfer for trail to an alternative court or tribunal, or transfer to the person’s country of origin or any other foreign country or foreign entity.
Importantly, section 1032 says: Nothing in this section shall be construed to affected existing law or authorities relating to the detention of U.S. Citizens, lawful resident aliens or any other persons who are captured or arrested in the United States.
Section 1032(b) requires that certain persons be held in military custody pending disposition under the law of war. This includes two categories of persons: persons who are members or a part of al-Qaeda or an associated forces that acts in coordination with or pursuant to the direction of al-Qaeda; and persons who participated in the course of planning or carrying out an attack or attempted attack against the United States.
Notably, by its own terms Section 1032(b) does not apply to United States Citizens. It also does not apply to lawful residents aliens on the basis of conduct taking place within the United States, except as permitted by the Constitution of the United States.
In other words, if prior law did not authorize the detention of a U.S. Citizen, then this law does not create that authority. Wow, that Barack Obama sure is a bad guy.
It’s always useful to read what a bill actually says before using it to “prove” that Obama is clearly as bad as any Republican, and perhaps worse than Satan himself.
As you have ably pointed out. But people can find this decision by the president to be lamentable, and substantially at odds with the platform he promised in 2008, without arguing that he is “clearly as bad as any Republican, and perhaps worse than Satan himself.”
To skip over this intermediate position suggests some insecurity about how Obama’s decision stands in its own right, it seems to me.
1032 says that the “requirement” of the section does not apply to US citizens or resident aliens. That leaves open the argument that if the “requirement” of military detention does not apply to US citizens and resident aliens, then non-military detention may be used. Those opposed to indefinite detention will argue that because the bill does not explicitly authorize it, the government can’t do it. Those who support broad executive power and the use of indefinite detention will claim that the President already has the power and this law just means that he is not required to use military detention.
Guess which side the Obama White House is on? I think they take the latter position and that is the real problem with this administration and something progressives (and everyone) should be very pissed off about.
I see your point. However, 1032(b) requires military detention for “covered persons” and the sub-section excludes citizens. The requirement those persons (whose detention is authorized by subsection (a)) from being remanded to a civilian court. However, there is nothing else in the statute that authorizes detention of a U.S. Citizen, so I don’t that you can imply a permissive authority to detain citizens from that sentence.
Am I looking at an incorrect version? The one I am looking at has 1031(b) as:
The covered persons section does not mention US citizens. Section (e) mentions US citizens:
1032(a):
1032(b):
Is that the right version?
If so, I don’t see how the statute prohibits detention of US citizens, it just prohibits the requirement of military detention for US citizens under 1032. 1031 does not affect current law on detention of US citizens.
Whether or not detention of US citizens is allowed would be answered by existing law, not this law. The obvious existing law is the AUMF (and the Constitution, but who cares about that), which I believe the WH (both Obama’s and Bush’s) and neocons and hawkish Dems would argue gives the authority to detain US citizens. I think that is a fair assumption to make about the Obama WH since presumably the AUMF gives them the authority to assassinate US citizens.
But when it really comes down to it, I don’t care that much about the citizen issue. From a legal/constitutional perspective it is a huge problem, but from a moral perspective, allowing indefinite detention for anyone is the problem. When we had old-school wars with defined battlefields and sides, indefinite detention until the end of hostilities made sense and was more justifiable. Now that the battlefield is everywhere and the war endless, indefinite detention for anyone should be prohibited, US citizen or not.
Fun fact: arrests actually happen in places that are not here. A lot. So the entire point of this post is essentially invalid. The bill really is that terrible.
Also, I’m glad to know that the goal in reading a bill is finding a way to get Barack Obama off the hook.
Not really. The sentence you quote can be read in two ways (yet another reason this is an awful bill). The question is whether the clause “who are captured or arrested in the US” modifies only “any other persons,” or whether it also extends to “US Citizens” and “lawful resident aliens.” Much of the hoopla over this bill is that it would allow *domestic* arrests and indefinite detention *of US citizens.* But, as this entire discussion shows, that’s not as clear as some *cough*Greenwald*cough* would have it.
It’s still a terrible bill. But it simply is not entirely clear what it actually says.
Nope. The purpose of actually reading the bill (and this goes with anything) is that you can’t always believe what you read. Just because Glenn Greenwald or an ACLU press release said it doesn’t make it true.
That’s why I read the bill, and came to the conclusion that Greenwald and the ACLU’s analysis was wrong. If you came to a different conclusion that makes rational legal sense based upon the language of the statute, which at least it seems like you have done here (as opposed to many others here and elsewhere), then that’s fine. But I don’t see why the crack about reading the bill only as a “way to get Barack Obama off the hook” is either accurate or necessary.
Implication: Obama takes undeserved flak from the left, who unfairly attack him without knowing what they’re talking about. I think essentially the opposite is true.
It is precisely what I’ve said, here and elsewhere. In fact, let me state it again, borrowing from your helpful formulation: Obama takes undeserved flak from the left, who unfairly attack him without knowing what they’re talking about.
This is precisely correct on a whole host of issues, ranging from health care to this NDAA to the wide range of bills and regulations Obama has supported and/or spearheaded during these first years of his presidency. Some of what Obama has done has been ignored by a few on the Left, and others have been grossly misinterpreted.
What I did not say or imply is that Obama is therefore off-limits to criticism. Obviously, he is not. But the comments of some comments on this and other issues indicates that, yes, some people (not all) have no idea what they’re talking about — probably because they haven’t read the respective bills and are relying upon a sort of game of telephone from one tweet to another.
Simply stated: if you criticize Obama for specific policy decisions but have not actually read the language underlying the actual policy decisions themselves, then please do so immediately. We do not need the left-wing equivalent of “death panel” hysteria in the “reality-based community” based upon ignorance of the actual law.
I miss the “6” button.
Candidate Obama said clearly that he would stop these “detentions” if elected. President Obama has done the opposite.
I supported and voted for Barack Obama with high hopes that America would finally have a president who reflected my values, priorities, and aspirations for my country. My hopes have been dashed as, time after time, President Obama either voluntarily makes the wrong decision (putting Social Security and Medicare on the table, for example) or — through incompetence or worse — feebly protests while the GOP slashes, burns, and mutilates virtually every aspect of the America I hold dear.
I think, frankly, that corporate America is playing good-cop/bad-cop with the public — the Democrats cast as the good cops who are outmaneuvered at every step by those rowdy GOP/Tea Party bad cops. The bottom line is the same heads-I-win-tails-you-lose game that the public has been on the receiving end of for thirty years now.
Please don’t lecture me about “undeserved flak” when, for the first time in US history, a sitting president sees documented evidence of formal policies of torture on the part of government officials and does NOTHING.
Funny you mention health care. After all the hoopla about the Affordable Care Act, when it comes time to make even the watered-down provisions of this pig-in-a-poke stick, what does Barack Obama do? He allows each state to set its own coverage levels. He thus demonstrates that the much-vaunted Affordable Healthcare Act truly is simply a health insurance subsidy.
This president has been a disaster for progressives and Democrats. Yes, John McCain would probably have been worse. Yes, Newt Gingrich or Mitt Romney will probably be worse. So what.
America is steadfastly digging itself into an ever-deepening hole. The observation that President Obama dug less slowly than anybody else is precious little consolation.
Yes, not solving the Guantanamo Bay mess Bush left us had been the biggest failure of the Obama Administration. He deserves “flak” for this. No, he does not deserve the other sorts of criticism you provide in your comment, especially your ridiculous claim that “this president has been a disaster for progressives and Democrats.”
Again, I find this supremely ironic coming from someone who is a self-described big fan of Clinton. Why is Obama held to a higher standard than Clinton? When Clinton was president, progressives were making precisely the types of claims about him that you are making about Obama (he failed liberalism, failed to stand up to conservatism and big business, focused on “conservative” deficit cutting rather than liberal priorities, served only to replace “true” liberalism with DLC-style moderation, etc.). This triggered defenses of Clinton from other progressives who understood that Clinton was being underestimated by some on the Left.
Read this exchange from the American Prospect during the Clinton Administration, originally from 1995, and tell me that this isn’t almost precisely the type of back-and-forth we’re having right now about Obama. (Here’s the original article by Richard Rothstein; and the response from a disillusioned progressive. The similarities between then and now are uncanny.
Yet you yourself now recognize the good aspects of the Clinton Administration (even while some progressives still do not). I have little doubt that 15 years from now, the suggestion that the Obama Administration was a “disaster” for progressives will look even more ludicrous than it does right now.
Calling this President a disaster for progressives is not ridiculous at all. When you balance his accomplishments and failures, you may think he’s advanced the progressive cause, but others can reasonably come out on the opposite end.
On civil liberties, the environment, issues of war and peace, taking on corporate interests, addressing massive and widespread financial fraud, addressing human rights violations by the Bush administration, and letting the economic debate be about deficits and not growth and inequality and then being willing to deal on the social safety net to make cuts. I think this President has been nothing less than a complete failure. On some other issues, like choice, I think he’s been a coward.
The ACA and CFPB are, to me, this President’s greatest achievements. I think they are great, though I think ACA has some huge problems, but it is an important leap in the right direction. As far as whether these things (and a number of other, smaller victories) outweigh the failures mentioned above, I don’t think they come close.
When some progressives look back at the Clinton years, they see legislative victories, sustained economic growth, and years of peace. Peeling back those layers a bit one can also see horrible social and economic policy approved, deregulation that led to our recent financial crisis, and millions of dead Africans because Clinton didn’t want to call out genocide for what it was.
Did Clinton do a lot to advance the progressive cause? Yes. Did he do far more to advance the corporate cause and defeat many important progressive goals? Absolutely.
As far as either President being a disaster for Democrats (as opposed to progressives, for they are very different things), I don’t think that is the case. The Democratic party has let itself become a corporatist party, so many of the things these Presidents have done fall in line with the party’s goals.
Here is the link. Doesn’t sound like Senator Franklen agrees that the provisions of this bill are okay, does it: http://readersupportednews.org/opinion2/275-42/8950-focus-why-i-voted-against-the-homeland-battlefield-bill
Glenn Greenwald at Salon has done the best job of explaining the bill’s provisions and evaluating the various claims about it: http://www.salon.com/2011/12/16/three_myths_about_the_detention_bill/
as noted by the Mother Jones piece linked to in an earlier BMG post (written by someone who is no fan of this legislation). Having read this language several times, my conclusion hasn’t changed from my view a few weeks ago that the critics of this bill significantly overstate its significance. (Though, of course, the statute does not do what Congress should do, which is prohibit the embarrassment of the US engaging in indefinite detention altogether. That’s the real criticism of the NDAA — not that it expands presidential power, because it does not).
Also, I find it ironic that at the start of the article you link to, Greewnwald focuses on the “denunciations” of the NDAA from the likes of Andrew Sullivan and the NY Times editorial page. Both showed remarkably poor judgment as Iraq War cheerleaders in the early years of the war, so I’m not sure why Greenwald finds them to be reliable sources to back up his claims now.
through expanding what the war on terror means. The above mentioned Greenwald piece is pretty clear about the definition of the war on terror – expanding it to include people who substantially support Al-Qaeda, the Taliban, or associated forces.
Given that the FBI seems to engage in behavior, that while maybe not legally entrapment, seems pretty darn close and disgusting, nonetheless, and the latest terrorist suspect’s biggest crime seems to have been to post something on the internet, I’m not going assume that this and subsequent administrations aren’t going to interpret the rest of the law, which is pretty unclear, in the manner that limits their powers.
And here is the link
http://blogs.discovermagazine.com/badastronomy/2011/12/19/a-public-letter-to-the-us-government-upon-the-passing-of-ndaa/
from your linked source:
What does the author cite for “proof” of this audacious claim? The actual language of the bill? Nope. Instead, it’s none other than Glenn Greenwald — who himself does not go as far as to characterize the bill as doing what the above comment suggests.
This is what I mean by this new “conventional wisdom” on some of the Left arising from a game of telephone from one analysis to another, until the provisions don’t just codify existing law on detention, but allow the president to unilaterally “snatch people off the streets inside our own country and torture them.”
Perhaps soon this game of telephone will insert imaginary provisions into this bill requiring government bureaucrats to institute death panels for Grandma. After all, we’ve seen that meme spread before in a very similar fashion. That’s the danger of relying on partisan analysis rather than actually reading the text and coming to your own conclusions.
I am not convinced that Greenwald’s “the issue is totally cut and dried” claims are accurate. Nonetheless, even if Greenwald is wrong, it’s still an awful bill. The weaselly escape clauses cited in the main post are just that – weasel words. The overall policy is terrible, and Obama should not be playing footsie with suspending habeas corpus, but by signing the bill that’s exactly what he’ll be doing.
that Obama should veto this bill and push for something better. But despite being highly problematic for a number of reasons, I’d rather have policy specifically codified in a congressional statute rather than be an outgrowth of an extremely vague AUMF (which was much more vague than this current bill) or the even more vague inherent powers of the president in Article II of the Constitution.
At least this makes arguments against wide-ranging presidential power in this area less legally secure, because future broad claims of presidential authority under this statute, I think, will be more likely to run up against the objection that such claims exceed the specific procedures in this bill. Since the remarkably brief AUMF provided no procedures or restraints whatsoever, it seemed to authorize nearly limitless presidential power.
I don’t think this law was needed.
My main point is that the headline of the original story (Obama authorizes detention of the U.S. Citizens) was wrong, and it wasn’t hard to find out that it was wrong.
“Obama Supports Detention of U.S. Citizens” is, I think, a less debatable issue, and that should weigh heavily on progressives considering supporting him in 2012.
n/t
associated force of al Qaeda?
A judge?
Indefinite detention only applies to “terrorists”, but how do we prove someone is really a terrorist without a fair trial? Answer: we don’t have to prove it. The accusation itself is sufficient for a lifetime at Guantanamo, or perhaps a summary execution. It’s a Kafkaesque/Orwellian nightmare in the making. “Throw her in the river- if she sinks, she’s not a terrorist. If she floats, she’s a terrorist.” This is what we get with a “Cobstitutional Scholar” in the Oval office. Not much better than the Cowardly Cowboy we had before.
Section 1022(c)(1)-(2) of the conference report requires the president to issue procedures for determining who is covered by the military custody provisions of section 1022. The president must issue these procedures within 60 days after the NDAA is enacted.
For determining who is covered by the long-term detention provisions of section 1021, section 1024(a) requires the Defense Department to issue procedures within 90 days of enactment.
In short, the answer to your question awaits more specific procedures to be determined after enactment (though note that the original AUMF required no procedures to be specified at all, so we’ve been in a procedural limbo about these determinations for quite some time now).