Tag: NDAA

This past week, several stories appeared which indicate the degree to which true investigative reporting about US efforts in the Global War on Terror is at odds with the desires of the Obama administration and the lengths to which the administration will go to create their preferred narrative and suppress reporting that fails to fit.  At the same time, the President and other administration officials have made public statements, unsupported by documentation, that they refuse for alleged “national security reasons” to release to the ACLU and journalists.

This diary will continue some of the themes developed in a previous diary, President Obama’s Propaganda Wars regarding the Obama administration’s attempts to “dominate the information spectrum.”

The stories this week suggest that sometimes in the Global War on Terror, it’s a matter of getting the images correct.  If the action is popular, we get, “Engaged-Commander-in-Chief-sweating-the-details Obama.”  If the action is controversial, or perhaps questionably legal, we get “Spectator Obama,” watching the action from the stands along with everybody else.

Where have all our freedoms gone? Have they eroded before our eyes because we failed to use them by demanding that our elected representatives protect the Constitution? Did irrational fear of an unseen enemy with no country, armed with a fanatical hatred scare us into allowing those freedoms to be abrogated? Apparently our current government from the executive to the judicial seem to think that the Constitution is a nice idea but its time has passed. We’re at war with “terror” and “terror” will never surrender. Law Professor Jonathan Turley, in an op-ed written shortly after President Obama signed the National Defense Authorization Act into law, enumerated the ten reasons the US is no loner the land of the free:

1. Assassination of U.S. citizens

Last year, President Obama went further than George W. Bush would have dared with the ordered assassination of a US citizen, Anwar al-Awlaqi. Just as the Bush administration justified torture, Pres. Obama justified targeted assassination of an American citizen without due process in a secret memo from administration lawyers. The administration cavalierly calling it “due process in war.” Yet, the US is hypocritical enough to criticize other countries for doing the same.

2. Indefinite detention

Under the NDAA the president can indefinitely detain a citizen that is suspected of terrorism and allow the military to hold them. While President Obama issued a signing statement saying that he would never do that, signing statement have no force of law and are not binding, either for Obama or any future president. Presidents have been known to change their minds, Obama does so on a regular basis.  

3. Arbitrary justice

The president decides who will be tried in the Federal courts or by a military tribunal, a system, as Prof. Turley points out, “that has been ridiculed around the world for lacking basic due process protections.” Yet countries like China and Egypt have rejected tribunals as an alternative to civilian courts.

Those first three reasons totally disregard the Fifth, Sixth and Eighth Amendments

4. Warrantless searches

Under the Patriot Act of 2001, and reinforced by Pres. Obama in 2011, the government can force companies and businesses to turn over citizens records, everything from finances to library records without a warrant and bar the company from telling the targets.

Fourth Amendment? What Fourth Amendment?

5. Secret evidence

The government under the guise of national security says it doesn’t have to show evidence it deems secret for national security thus forcing the dismissal of lawsuits brought against it for illegal detention and torture. This is how the Obama Justice Department has protected the war criminals from the Bush administration not only from civil liability but criminal prosecution for crimes against humanity. As Prof Turley describes, “This allows the government to claim secret legal arguments to support secret proceedings using secret evidence.”

Star Chamber?

6. War Crimes

Since 2009, the President Obama has refused to allow the prosecution of anyone responsible for waterboarding and torture. This in complete disregard of treaty obligations and the Nuremberg principles of international law. The Obama administration went so far as to pressure countries such as Spain to drop criminal investigations of war crimes committed by the Bush administration. Yet the US continues to reserve the right to prosecute war criminals in other countries. ”

“Do as I say not as I do” is the attitude that has fed the hatred of terrorists, as well as, disdain from countries like China when we criticize their human rights violations.

7. Secret court

The Foreign Intelligence Surveillance Court is the United States’ “secret court”, the “star chamber“, that operates in total secrecy. Created in 1978, the eleven judges of the U.S. Foreign Intelligence Surveillance Court (FIS) consider and rule on applications by federal law enforcement and intelligence agencies to conduct electronic surveillance anywhere within the United States. When FISA came up for renewal under the Bush administration it expanded its secret warrants to include individuals deemed to be aiding or abetting hostile foreign governments or organizations. Then Sen. Barack Obama said that he would filibuster the renewal unless certain portions of the bill were fixed to ensure that it did not violate the Constitution. Needless to say, Sen Obama not only did not filibuster the FISA, he voted for it, promising to “fix it” if he was elected president. That was a lie. In 2011, not only did President Obama not fix it, he expanded it to in include secret searches of individuals who are not part of an identifiable terrorist group.

8.  Immunity from judicial review

The Obama administration has pushed for, and granted, immunity of telecommunications companies that assist in warantless surveillance. Citizens who have had their privacy violated by the government no longer have redress.

9. Continual monitoring of citizens

So far the Obama administration has successfully defended in the courts its view that it has the right to use GPS to monitor every move of targeted citizens without securing any court order or review. The case, Jones v. United States, could overturn Katz v. United States which is celebrated as saving privacy in the United States, articulated the principle that “the Fourth Amendment protects people, not places.” That 1967 decision reversed a long erosion of privacy protection and required greater use of warrants by the government.

10. Extraordinary renditions

While the Obama administration has insisted that it no longer transfers persons into the custody of other countries where they could be held and tortured, it is still claiming the right to to order such transfers, including the possible transfer of U.S. citizens.

Prof. Turley goes in to quote those who are justifying these abuses as saying it’s all due to the times we in which we live. But as he so importantly notes in conclusion:

An authoritarian nation is defined not just by the use of authoritarian powers, but by the ability to use them. If a president can take away your freedom or your life on his own authority, all rights become little more than a discretionary grant subject to executive will.

The framers lived under autocratic rule and understood this danger better than we do. James Madison famously warned that we needed a system that did not depend on the good intentions or motivations of our rulers: “If men were angels, no government would be necessary.”

Benjamin Franklin was more direct. In 1787, a Mrs. Powel confronted Franklin after the signing of the Constitution and asked, “Well, Doctor, what have we got – a republic or a monarchy?” His response was a bit chilling: “A republic, Madam, if you can keep it.”

Since 9/11, we have created the very government the framers feared: a government with sweeping and largely unchecked powers resting on the hope that they will be used wisely. [..]

Dishonesty from politicians is nothing new for Americans. The real question is whether we are lying to ourselves when we call this country the land of the free.

What was that “change” that was promised three years ago?

Montana residents William Crain, an artist and Stewart Rhodes, an attorney, have launched a petition to recall the state’s congressional delegation, Sen. Max Baucus (D), Sen. Jonathan Tester (D) and Rep. Denny Reberg (R) over their vote for the National Defense Authorization Act that explicitly authorized the indefinite detention of terrorism suspects, including American citizens. Montana is one of nine states that has provisions to recall its elected federal officials. Under the Montana Recall Act all state officials in Montana are subject to recall for physical or mental lack of fitness, incompetence, violation of the oath of office, official misconduct, or conviction of a felony offense. The Montana petitions (there is one for each of the three), states the following “reason for recall”:

   1. “The Sixth Amendment of the U.S. Constitution guarantees all U.S citizens: “a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…”

   2.  The National Defense Authorization Act of 2011 (NDAA 2011) permanently abolishes the Sixth Amendment right to a jury trial, “for the duration of hostilities” in the War on Terror, which was defined by President George W. Bush as “task which does not end” to a joint session of Congress on September 20, 2001.

   3.  Those who voted Aye on December 15th, 2011, Bill of Rights Day, for NDAA 2011 have attempted to grant powers which cannot be granted, which violate both the spirit and the letter of the Constitution and the Declaration of Independence.

   4.  The Montana Recall Act stipulates that officials including US senators can only be recalled for physical or mental lack of fitness, incompetence, violation of the oath of office, official misconduct, or conviction of a felony offense.

   5. Section 1021 of the National Defense Authorization Act reads in substance: “Congress affirms that the authority of the President to detain …A person who was a part of or substantially supported al-Qaeda…or associated forces…including any person who has…directly supported such hostilities in aid of such enemy forces…The disposition of a person…may include…Detention…without trial until the end of the hostilities…”

   6. “Substantial support” of an “associated force” may imply citizens engaged in innocuous, First Amendment activities.  Direct support of such hostilities in aid of enemy forces may be construed as free speech opposition to U.S. government policies, aid to civilians, or acts of civil disobedience.

   7. Section 1021 reads: “Nothing in this section shall be construed to affect existing law.”  But “existing law” may be construed to refer to Padilla v. Rumsfeld in the Fourth Circuit Court of Appeals, which upheld the government’s claim of authority to hold Americans arrested on American soil indefinitely.

   8. Thus Senators Bacus, Tester, and Congressman Rehberg who voted Aye on December 15th, 2011, Bill of Rights Day, for NDAA 2011 have violated his Oath of Office to protect and defend the U.S. Constitution which guarantees all citizens the right to a jury trial “In all criminal prosecutions.”

According to the press release, Mr. Rhodes stated:

These politicians from both parties betrayed our trust, and violated the oath they took to defend the Constitution. It’s not about the left or right, it’s about our Bill of Rights. Without the Bill of Rights, there is no America. It is the Crown Jewel of our Constitution, and the high-water mark of Western Civilization. [..]

Two time Medal of Honor winner Marine General Smedley Butler once said “There are only two things we should fight for. One is the defense of our homes and the other is the Bill of Rights.” Time to fight.

It’s not clear if the courts will allow states to recall their federal politicians. It hasn’t gotten very far in the past. In 1967, a recall campaign was waged against Sen Frank Church by Ron Rankin, a Republican county commissioner in Kootenai County in northern Idaho. The U.S. District Court for Idaho ruled that the state’s recall laws did not apply to U.S. senators and that such a recall would violate the U.S. Constitution. Since Idaho’s State Attorney General Alan Shephard decided to accept the court’s ruling, writing that “It must be pointed out that a United States senator is not a state officer but a federal officer whose position is created by Article I, Section I of the United States Constitution. There seems to be no provision for canvassing the votes of a recall election of a United States senator.”

However, it can be argued that since there is no provision provided in the Constitution to recall members of congress, that right is preserved for the states under the 10th Amendment which states:  

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Leaving Mr. Rhodes’ affiliation with The Oath Keepers, a group that has been criticized in the past for adopting extremist views and language, and for their supposed ties to white supremacist and militia groups, the petition drive does have some merits. If successful, it could lead to other states passing laws to provide for the recall of elected federal officers who think that the Constitution is quaint. Good luck to them and perhaps good riddance to Baucus, Tester and Reberg.

Twist as the president’s supporters might with the “look over here” tactic, the National Defense Authorization Bill (NDAA) does not change any existing law that Barack Obama has interpreted to mean he has the power to throw your sorry butt in prison anywhere in the world for as long as he chooses. Or he can just declare you a terrorist without providing evidence and have you executed without due process. Ignoring the Authorization to Use Military Force (AUMF) that was recently renewed giving the president the authority to send in the military to fight that ubiquitous enemy “terror”, the Obama loyalists, keep pointing to section 1022 of the NDAA, the section that makes military detention presumptive for non-citizens but doesn’t foreclose military detention of US citizens, while completely ignoring section 1021, the section that affirms the President’s authority to indefinitely detain people generally. As Marcy Wheeler at emptywheel points out while the NDAA does not authorize indefinite detention for American citizens, it does not foreclose the possibility either:

The NDAA doesn’t do anything to exempt Americans from indefinite detention. And the reason it doesn’t-at least according to the unrebutted claims of Carl Levin that I reported on over a month ago-is because the Administration asked the Senate Armed Services Committee to take out language that would have specifically exempted Americans from indefinite detention.

   The initial bill reported by the committee included language expressly precluding “the detention of citizens or lawful resident aliens of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.”  The Administration asked that this language be removed from the bill. [my emphasis]

So the effect is that (as Lawfare describes in detail) the bill remains unclear about whether Americans can be detained indefinitely and so we’re left arguing about what the law is until such time as a plaintiff gets beyond the Executive Branch’s state secrets invocations to actually decide the issue in court.

Nor did the amendment from Sen. Diane Feinstein clarify that point either, in fact, she may have codified it. So the only recourse is for some poor fool to have his civil liberties abrogated and try to fight in court without being allowed access to lawyers or courts. Those are some hurdles. Scott Horton, contributing editor at Harper’s magazine and New York attorney known for his work in human rights law and the law of armed conflict, discussed this with Keith Olbermann:

Constitutional expert and George Washington University law professor, Jonathan Turley, appeared on C-Span with his take on this discussion. He made it very clear that Obama says that he can assassinate American citizens living on U.S. soil:

(starting at 15:50):

President Obama has just stated a policy that he can have any American citizen killed without any charge, without any review, except his own. If he’s satisfied that you are a terrorist, he says that he can kill you anywhere in the world including in the United States.

Two of his aides just … reaffirmed they believe that American citizens can be killed on the order of the President anywhere including the United States.

You’ve now got a president who says that he can kill you on his own discretion. He can jail you indefinitely on his own discretion [..]

I don’t think the the Framers ever anticipated that [the American people would be so apathetic]. They assumed that people would hold their liberties close, and that they wouldn’t relax …

h/t Washington’s Blog

How quickly the president’s defenders forget Anwar al-Awlaki. Marcy points to the contortions of the law that Obama used to justify his assassination and then issued a “secret memorandum” which was conveniently “leaked” to New York Times reporter Charles Savage:

And, as Charlie Savage has reported, the legal justification the Administration invented for killing an American citizen in a premeditated drone strike consists of largely the same legal justification at issue in the NDAA detainee provisions.

           

The 2001 AUMF, which purportedly defined who our enemies are (though the NDAA more logically includes AQAP in its scope than the 2001 AUMF)

           

Hamdi, which held the President could hold an American citizen in military detention under the 2001 AUMF

           

Ex Parte Quirin, which held that an American citizen who had joined the enemy’s forces could be tried in a military commission

           

Scott v. Harris (and Tennesee v. Garner), which held that authorities could use deadly force in the course of attempting to detain American citizens if that person posed an imminent threat of injury or death to others

   In other words, Obama relied on substantially the same legal argument supporters of the NDAA detainee provisions made to argue that indefinite detention of American citizens was legal, with the addition of Scott v. Harris to turn the use of deadly force into an unfortunate side-effect of attempted detention.

There is no question that the Obama administration, by signing the NDAA, believes that it has the broad power to indefinitely detain and assassinate American citizens and guarantees that the next president will too.

The late George Carlin said it several years ago, “this country is circling the drain“.  

Up Date: The Senate voted for final passage for the NDAA conference report (H.R. 1540). The vote was overwhelming: 86-to-13. It now goes to President Obama for his signature.

President Obama has not yet signed the NDAA. It is not to late to tell him to veto this bill which will have a devastating effect on civil liberties and give unprecedented powers to the military and the Executive Branch. Send Obama a strong message sign the petition and send a letter:

President Obama: Veto the National Defense Authorization Act!

VETO the National Defense Authorization Act

This House passed the revised National Defense Authorization Act 283 – 136 with 93 Democrats and 43 Republicans voting against the bill. The Senate is scheduled to take up the bill later today. It inevitably pass with an overwhelming majority and be sent to President Obama to sign. Since the White has stated that they are satisfied with the minor changes, Obama will sign the bill which, as Human Rights Watch said in a press release, “a historic tragedy for rights:

(Washington, DC, December 14, 2011) – US President Barack Obama’s apparent decision to not veto a defense spending bill that codifies indefinite detention without trial into US law and expands the military’s role in holding terrorism suspects does enormous damage to the rule of law both in the US and abroad, Human Rights Watch said today. The Obama administration had threatened to veto the bill, the 2012 National Defense Authorization Act (NDAA), over detainee provisions, but on December 14, 2011, it issued a statement indicating the president would likely sign the legislation.

“By signing this defense spending bill, President Obama will go down in history as the president who enshrined indefinite detention without trial in US law,” said Kenneth Roth, executive director of Human Rights Watch. “In the past, Obama has lauded the importance of being on the right side of history, but today he is definitely on the wrong side.”

The far-reaching detainee provisions would codify indefinite detention without trial into US law for the first time since the McCarthy era when Congress in 1950 overrode the veto of then-President Harry Truman and passed the Internal Security Act. The bill would also bar the transfer of detainees currently held at Guantanamo into the US for any reason, including for trial. In addition, it would extend restrictions, imposed last year, on the transfer of detainees from Guantanamo to home or third countries – even those cleared for release by the administration.

(emphasis mine)

Glenn Greenwald at Salon wrote in his article this morning that there are “several persistent myths that circulating about this bill and President Obama’s position on it that need to be clarified once and for all:

First, while the powers this bill enshrines are indeed radical and dangerous, most of them already exist. That’s because first the Bush administration and now the Obama administration have aggressively argued that the original 2001 AUMF already empowers them to imprison people without charges, use force against even U.S. citizens without due process (Anwar Awlaki), and target not only members of Al Qaeda and the Taliban (as the law states) but also anyone who “substantially supports” those groups and/or “associated forces” (whatever those terms mean). [..]

With a couple of exceptions, this bill just “clarifies” – and codifies – the powers President Obama has already claimed, seized and exercised. [..]

This is the reason why civil libertarians have been so harshly critical of this President. It’s the reason civil liberties groups have been saying things like this even when saying them was so unpopular: it’s because Obama has, for three years now, been defending and entrenching exactly the detention powers this law vests, but doing it through radical legal theories, warped interprations (sic) of the 2001 AUMF, continuities with the Bush/Cheney template, and devotion to Endless War and the civil liberties assults (sic) it entails.

Second, as I documented at length last week, Obama’s veto threat was never about substantive objections to the detention powers vested by this bill; put another way, he was never objecting to the bill on civil liberties grounds. Obama, as I documented last week and again below, is not an opponent of indefinite detention; he’s a vigorous proponent of it, as evidenced by his contiuous (sic), multi-faceted embrace of that policy.

Obama’s objections to this bill had nothing to do with civil liberties, due process or the Constitution. It had everything to do with Executive power. The White House’s complaint was that Congress had no business tying the hands of the President when deciding who should go into military detention, who should be denied a trial, which agencies should interrogate suspects (the FBI or the CIA). Such decisions, insisted the White House (pdf), are for the President, not Congress, to make. In other words, his veto threat was not grounded in the premise that indefinite military detention is wrong; it was grounded in the premise that it should be the President who decides who goes into military detention and why, not Congress.

Third, the most persistent and propagandistic set of myths about President Obama on detention issues is that he tried to end indefinite detention by closing Guantanamo, but was blocked by Congress from doing so. It is true that Congress blocked the closing of Guantanamo, and again in this bill, Congress is imposing virtually insurmountable restrictions on the transfer of detainees out of that camp, including for detainees who have long ago been cleared for release (restrictions that Obama is now going to sign into law). But – and this is not a hard point to understand – while Obama intended to close Guantanamo, he always planned – long before Congress acted – to preserve Guantanamo’s core injustice: indefinite detention.

I need to say that again: long before, and fully independent of, anything Congress did, President Obama made clear that he was going to preserve the indefinite detention system at Guantanamo even once he closed the camp. That’s what makes the apologias over Obama and GITMO so misleading: the controversy over Guantanamo was not that about its locale – that it was based in the Carribean (sic) Ocean – so that simply closing it and then  re-locating it to a different venue would address the problem. The controversy over Guantanamo was that it was a prison camp where people were put in cages indefinitely, for decades or life, without being charged with any crime. And that policy is one that President Obama whole-heartedly embraced from the start.

All the evidence is that debunks the myth that Obama is concerned about the Constitution are there in Glen’s article.

Ironically today 220 years ago in 1791, Virginia became the last state to ratify the Bill of Rights. If the Senate passes this horrendous assault on our civil liberties, most of that historic document will be undermined. I don’t believe this that is what our Founding Fathers intended.

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

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

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 93 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

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.