Tag: War Crimes

The word in beltway circles is that President George W. Bush Barack Obama is negotiating with Republicans to provide more information on the lethal attack last year on the American diplomatic compound in Benghazi, Libya in order to insure the confirmation of his nominee for CIA Director, John Brennan, who headed the CIA torture program under the Bush administration. So why you ask is this of any importance? It would seem this new capitulating to Republican whining, as reported in The New York Times is a tactic to hold back the Department of Justice memos authorizing drone attacks:

The strategy is intended to produce a bipartisan majority vote for Mr. Brennan in the Senate Intelligence Committee without giving its members seven additional legal opinions on targeted killing sought by senators and while protecting what the White House views as the confidentiality of the Justice Department’s legal advice to the president. It would allow Mr. Brennan’s nomination to go to the Senate floor even if one or two Democrats vote no to protest the refusal to share more legal memos. [..]

Only after an unclassified Justice Department white paper summarizing the legal arguments was leaked to NBC News this month did the administration make two legal opinions on the targeted killing of American citizens briefly available to members of the Intelligence Committees.

But the documents were available to be viewed only for a limited time and only by senators themselves, not their lawyers and experts.

This news set off a most righteous rants by Esquire‘s Charles Pierce that prompted Glenn Greenwald to tweet:

After reading The New York Times article and Ed Kilgore’s reaction at the Washington Animal, Charles Pierce had this to say about a bad idea that is getting worse:

This is what happens when you elect someone — anyone — to the presidency as that office is presently constituted. Of all the various Washington mystery cults, the one at that end of Pennsylvania Avenue is the most impenetrable. This is why the argument many liberals are making — that the drone program is acceptable both morally and as a matter of practical politics because of the faith you have in the guy who happens to be presiding over it at the moment — is criminally naive, intellectually empty, and as false as blue money to the future. The powers we have allowed to leach away from their constitutional points of origin into that office have created in the presidency a foul strain of outlawry that (worse) is now seen as the proper order of things. If that is the case, and I believe it is, then the very nature of the presidency of the United States at its core has become the vehicle for permanently unlawful behavior. Every four years, we elect a new criminal because that’s become the precise job description.

(emphasis mine)

The previous paragraph was just as bruising.

So much for the pledge of greater transparency made by Pres. Obama in his last State of the Union address:

I recognize that in our democracy, no one should just take my word that we’re doing things the right way. So, in the months ahead, I will continue to engage with Congress to ensure not only that our targeting, detention and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and to the world.

The most worrisome parts of all of this is that these criminal acts by the president, vice president or any of the civil officers of the United States are now the norm, unconstitutional laws that have been passed and unlawful executive orders are acceptable and rubber stamped by the courts. The system of checks and balances no longer exists since Congress has refused to hold the Executive Branch accountable for high crimes and misdemeanors since Ronald Reagan ignored the law with the Iran/Contra affair and literally taken off the table by the Speaker of the House never to be mentioned. Now, Congress and the Courts nonchalantly brush aside the concerns that President Barack Obama has become judge, jury and executioner of American citizens for crimes against the United States that they might commit simply for what they said or for whom they were associated. The proud principles that we cherished have been not merely diminished but dismissed and the Constitution is now just a lovely document that is on display in the National Archive.

Charles Pierce has it only partially right when he said liberals were “criminally naive, intellectually empty, and as false as blue money to the future.” If they aren’t speaking out and standing against this criminal in the Oval Office, demanding that Congress fulfill its sworn duty, then they too are criminals under the law.

Democracy in the United States is on life support with little hope for recovery.

Since 9/11 and the start of the “Global War on Terror” (GWOT), the US government has denied that the CIA was involved in torture and extraordinary rendition despite the evidence to the contrary. Now the organization Open Society Foundations has released an extensive 216 page report, Globalizing Torture: CIA Secret Detention and Extraordinary Rendition (pdf), that details the clandestine program that extended to 54 countries.

Following the terrorist attacks of September 11, 2001, the Central Intelligence Agency embarked on a highly classified program of secret detention and extraordinary rendition of terrorist suspects. The program was designed to place detainee interrogations beyond the reach of law. Suspected terrorists were seized and secretly flown across national borders to be interrogated by foreign governments that used torture, or by the CIA itself in clandestine “black sites” using torture techniques.

Globalizing Torture is the most comprehensive account yet assembled of the human rights abuses associated with CIA secret detention and extraordinary rendition operations. It details for the first time what was done to the 136 known victims, and lists the 54 foreign governments that participated in these operations. It shows that responsibility for the abuses lies not only with the United States but with dozens of foreign governments that were complicit.

More than 10 years after the 2001 attacks, Globalizing Torture makes it unequivocally clear that the time has come for the United States and its partners to definitively repudiate these illegal practices and secure accountability for the associated human rights abuses.

At FDL‘s The Dissenter, Kevin Gosztola takes “a comprehensive look” at the report and some of its findings:

It makes clear the Obama administration has not chosen to end rendition, the process of essentially kidnapping a person and transferring them  to another country for detention where they are likely to be abused or tortured. The administration has not disclosed policies or practices related to “intelligence transfers” (for example, when the CIA ships individuals to other countries). An executive order Obama signed was “crafted to preserve the CIA’s authority to detain terrorist suspects for short periods prior to ‘rendering’ them to another country for interrogation or trial.” This was a loophole that was designed to make it possible for the CIA to keep certain secret prison sites open. [..]

The report also mentions how the United States has declined to conduct criminal investigations into the CIA’s RDI program. The courts have failed to hold any person from the Executive Branch accountable for abuses associated with the RDI program. “To date, not a single case brought by an extraordinary rendition victim has reached the merits stage in a US court,” the report declares.

Meanwhile, there continues to be reports of secret detentions: in April 2011, the “Associated Press reported that suspected terrorists in Afghanistan were being secretly detained and interrogated for weeks at 20 temporary sites including one run by the military’s elite counterterrorism unit, the Joint Special Operations Command (JSOC), at Bagram Air Base”; in July 2011, “it was reported that the Obama administration had secretly detained and interrogated Ahmed Abdulkadir Warsame, a Somali national, for two months aboard a US Navy ship, after seizing him on international waters between Yemen and Somalia”; Jeremy Scahill of The Nation reported in July 2011 the CIA was using a secret prison “in the basement of Somalia’s National Security Agency (NSA) headquarters; and the Washington Post reported in August 2012 that “three European men with Somali roots were arrested by local authorities in Djibouti, where they were detained and interrogated for months-including by U.S. interrogators-even though no charges were pending against them.”

(my emphasis)

The senior legal officer at the National Security and Counterterrorism program at the Open Society Justice Initiative and the reports author, Amrit Singh joined Amy Goodman and Juan Gonzalez on Democracy! Now to discuss the report and CIA Director nominee, John Brennan’s role in the expansive program she’s documented.

CIA’s Torturers Get Their Scalp

by Marcy Wheeler, emptywheel

With the news that John Kiriakou will head to prison for 30 months, it’s worth remembering how he got sent there.

It started when CIA officers claimed that when Gitmo defense attorneys provided photos of their clients torturers to them-having independently discovered their identity-the torturers were put at risk. DOJ didn’t believe it was a security risk; CIA disagreed and went to John Brennan. And after Patrick Fitzgerald was brought in to mediate between DOJ and CIA, the prosecution of John Kiriakou resulted. [..]

What happened with Kiriakou’s sentencing today is many things. But it started as-and is still fundamentally a result of-an effort on the part of CIA to ensure that none of its torturers ever be held accountable for their acts, to ensure that the subjects of their torture never gain any legal foothold to hold them accountable.

The CIA has succeeded in making an object lesson of a man who betrayed their omerta.

Former CIA agent John Kiriakou speaks out just days after he was sentenced to 30 months in prison, becoming the first CIA official to face jail time for any reason relating to the U.S. torture program. Under a plea deal, Kiriakou admitted to a single count of violating the Intelligence Identities Protection Act by revealing the identity of a covert officer to a freelance reporter, who did not publish it. Supporters say Kiriakou is being unfairly targeted for having been the first CIA official to publicly confirm and detail the Bush administration’s use of waterboarding. Kiriakou joins us to discuss his story from Washington, D.C., along with his attorney, Jesselyn Radack, director of National Security & Human Rights at the Government Accountability Project. “This … was not a case about leaking; this was a case about torture. And I believe I’m going to prison because I blew the whistle on torture,” Kiriakou says. “My oath was to the Constitution. … And to me, torture is unconstitutional.”

Days after he was sentenced to 30 months in prison, John Kiriakou – the first CIA official to be jailed for any reason relating to the torture program – denounces President Obama’s appointment of John Brennan to head the CIA. “I’ve known John Brennan since 1990,” Kiriakou says. “I worked directly for John Brennan twice. I think that he is a terrible choice to lead the CIA. I think that it’s time for the CIA to move beyond the ugliness of the post-September 11th regime, and we need someone who is going to respect the Constitution and to not be bogged down by a legacy of torture.”

While the traditional MSM has been kvetching over the selection of former Republican Senator Chuck Hagel as Secretary of Defense, President Barack Obama another far more controversial nomination. True to form of favoring George W. Bush’s war criminals, the president nominated his counter-terrorism advisor John Brennan to head the CIA. Brennan, who endorsed Bush’s torture program and illegal surveillance, has also been completely in charge of the president’s drone and targeted assassination programs. It was because of that and his approval of NSA illegal wire taping and the immunization of the telecommunication companies that Brennan’s nomination to head the CIA in 2009 was withdrawn by the fledgeling Obama administration. How soon, not just the media, so-called progressives have forgotten its outrage over the criminality of the Bush/Cheney regime.

John Brennan’s extremism and dishonesty rewarded with CIA Director nomination

by Glenn Greenwald, The Guardian

Obama’s top terrorism adviser goes from unconfirmable in 2008 to uncontroversial in 2013, reflecting the Obama legacy

Prior to President Obama’s first inauguration in 2009, a controversy erupted over reports that he intended to appoint John Brennan as CIA director. That controversy, in which I participated, centered around the fact that Brennan, as a Bush-era CIA official, had expressly endorsed Bush’s programs of torture (other than waterboarding) and rendition and also was a vocal advocate of immunizing lawbreaking telecoms for their role in the illegal Bush NSA eavesdropping program. As a result, Brennan withdrew his name from consideration, issuing a bitter letter blaming “strong criticism in some quarters prompted by (his) previous service with the” CIA.

This “victory” of forcing Brennan’s withdrawal proved somewhat Pyrrhic, as Obama then appointed him as his top counter-terrorism adviser, where he exerted at least as much influence as he would have had as CIA Director, if not more. In that position, Brennan last year got caught outright lying when he claimed Obama’s drone program caused no civilian deaths in Pakistan over the prior year. He also spouted complete though highly influential falsehoods to the world in the immediate aftermath of the Osama bin Laden killing, including claiming that bin Laden “engaged in a firefight” with Navy SEALS and had “used his wife as a human shield”. Brennan has also been in charge of many of Obama’s most controversial and radical policies, including “signature strikes” in Yemen – targeting people without even knowing who they are – and generally seizing the power to determine who will be marked for execution without any due process, oversight or transparency. {..}

It is a perfect illustration of the Obama legacy that a person who was untouchable as CIA chief in 2008 because of his support for Bush’s most radical policies is not only Obama’s choice for the same position now, but will encounter very little resistance. Within this change one finds one of the most significant aspects of the Obama presidency: his conversion of what were once highly contentious right-wing policies into harmonious dogma of the DC bipartisan consensus. Then again, given how the CIA operates, one could fairly argue that Brennan’s eagerness to deceive and his long record of supporting radical and unaccountable powers make him the perfect person to run that agency. It seems clear that this is Obama’s calculus.

The Seduction of John Brennan’s “Moral Rectitude”

by Marcy Wheeler, emptywheel

FWIW, having John Brennan in a position where he will be subject to Congressional oversight – rather than the oversight-free and more expansive position he’s in now – might not be an entirely bad thing. And after the DiFi-Jose Rodriguez smackdown, I’m not sad to see (CIA Acting Director Michael) Morell get passed over, because I don’t think he has sufficient independence from people like Rodriguez. {..}

So I can’t help but think the people hailing his “moral rectitude” have been seduced by an old spook. Because every story that claims Brennan has some kind of higher ethics or a plan to put order to our out-of-control CT programs is either followed-or has the proof within itself-that the moral rectitude is the PR, whereas the embrace of unchecked power seems to be backed by his actions.

This statement from the ACLU on Brennan’s nomination, expressed there concerns:

WASHINGTON – President Obama this afternoon nominated his counterterrorism advisor John Brennan to become the next director of the CIA. Laura W. Murphy, director of the ACLU’s Washington Legislative Office, had the following concerns with the president’s choice to fill this critical national security post.

Despite media reports that Brennan continually raised civil liberties concerns within the White House, noted Murphy, the Senate should not move forward with his nomination until it assesses the legality of his actions in past leadership positions in the CIA during the early years of the George W. Bush administration and in his current role in the ongoing targeted killing program. [..]

“The Senate should not move forward with his nomination until all senators can assess the role of the CIA-and any role by Brennan himself-in torture, abuse, secret prisons, and extraordinary rendition during his past tenure at the CIA, as well as can review the legal authorities for the targeted killing program that he has overseen in his current position,” Murphy said. “This nomination is too important to proceed without the Senate first knowing what happened during Brennan’s tenures at the CIA and the White House, and whether all of his conduct was within the law. ”

Murphy also added that a recent Senate Intelligence Committee report could be used to determine the extent of Brennan’s role in these programs.

“To the extent these questions can be answered by the Intelligence Committee’s still-undisclosed report on the CIA’s role in torture, the Senate should use the report to determine what role Brennan had and whether his conduct was consistent with both the law and American values,” Murphy said.

Murphy remarked that the CIA can take two actions now to help restore the rule of law.

“The Senate should not move forward with the nomination of John Brennan until it is clear that he is committed to making sure that the CIA will end its targeted killing program, and agree to work with the Senate Intelligence Committee on the declassification review and disclosure of the committee’s report on the CIA’s past role in torture and abuse,” she said. “These steps would help assure all Americans that the past wrongs of the CIA have ended, and won’t be brought back.”

Brennan will most likely be confirmed by the Senate with far less “fireworks” than the Hagel nomination. I have no doubt that it will be done under the cloak of secrecy, invoking “national security”, aka, covering war crimes and the perpetrators.

There is compelling evidence that last year Nobel Peace Prize winner President Obama murdered an American teenager just two weeks after murdering his father and another American citizen in Yemen.  The same action that resulted in the death of the boy also caused the wanton slaughter of the boy’s Yemeni cousin and an unspecified number of their friends. The boy was just 16 years old when he was killed in Yemen.

He was the son of Anwar al-Awlaki, who was alleged to have joined a foreign military and taken up arms against the United States.  I say alleged because it is our tradition in America not to assign guilt to an individual until they have been proven guilty.  Many things were alleged about Anwar al-Awlaki, but no court or jury – the people who are the “finders of fact” in our system affirmed the President’s allegations as facts before the President executed al-Awlaki.

When [Anwar al-Awlaki] was killed, on September 30, 2011, President Obama made a speech about it; a few months later, when the Obama administraton’s public-relations campaign about its embrace of what has come to be called “targeted killing” reached its climax in a front-page story in the New York Times that presented the President of the United States as the last word in deciding who lives and who dies, he was quoted as saying that the decision to put Anwar al-Awlaki on the kill list – and then to kill him – was “an easy one.”

But Abdulrahman al-Awlaki wasn’t on an American kill list. Nor was he a member of Al-Qaeda in the Arabian Peninusla. Nor was he “an inspiration,” as his father styled himself, for those determined to draw American blood; nor had he gone “operational,” as American authorities said his father had, in drawing up plots against Americans and American interests.

President Barack Obama took this oath on January 20, 2009 as prescribed by the US Constitution, Article II, Section 1:

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

That includes a legal obligation to enforce the laws of this country and prosecuting the criminals who break those laws, even if that criminal is another President.

Rachel Maddow tiptoed around a bit when she that Bush-era torture was “probably a war crime,” while discussing the recently released memo by Philip Zelikow, a former Bush counselor. I suspect she did so as to not find herself on the unemployment line.

Rachel Maddow relays the news that the original Philip Zelikow memo advising the Bush administration that waterboarding is torture and such, illegal, has been found despite Bush administration efforts to destroy every copy. Will new proof that the Bush administration did not act in good faith when it tortured detainees push the Obama administration to prosecute? Will the Republican Party, once principled against torture, outflank Obama and call for prosecutions?

It was probably a war crime, not to put a fine point on it. And that is something we are legally obligated to prosecute in this country. This opens the whole question of legal liability for torture that was administered by the previous administration. The Democratic Party will be split by this, because the White House politically doesn’t want to deal with this, even if it’s wrong and even if they know it’s wrong. And the Republican Party still has to figure out who it is. Is the Republican Party still the party of John McCain, which now has the opportunity to outflank the president on a matter of principle here? Where the Whit house knows what the right thing to do is, but they don’t want do it. Or is the Republican Party still the party of George W. Bush and Mitt Romney who think torture is OK?

Gaius Publius at AMERICAblog  doesn’t think this is going away. He also wonders why the Obama administration didn’t pursue it and links to an article written by Andrew Kreig, executive director of Justice Integrity Project, on September 13, 2011:

President-Elect Obama’s advisers feared in 2008 that authorities would “revolt” and that Republicans would block his policy agenda if he prosecuted Bush-era war crimes, according to a law school dean who served as one of Obama’s top transition advisers.

University of California at Berkeley Law School Dean Christopher Edley, Jr., the sixth highest-ranking member of the 2008 post-election transition team preparing Obama’s administration, revealed the team’s thinking in moderating a forum on 9/11 held by his law school (also known as Boalt Hall)[..]

When a citizen, Susan Harmon, who opposed torture, questioned Dean Ederly on the inclusion of Professor John C. Yoo, former Bush Justice Department attorney who authored a memo justifying torture, to Boalt Hall’s faculty, this is what happened:

Harman’s account of her actions at the Boalt Hall forum, which focused on such goals as human rights and the rule of law:

“I said I was overwhelmed by the surreality of Yoo being on the law faculty . . . when he was single-handedly responsible for the three worst policies of the Bush Administration. They all burbled about academic freedom and the McCarthy era, and said it isn’t their job to prosecute him.

Duh.

Dean Chris Edley volunteered that he’d been party to very high level discussions during Obama’s transition about prosecuting the criminals. He said they decided against it. I asked why. Two reasons: 1) it was thought that the CIA, NSA, and military would revolt, and 2) it was thought the Repugnants would retaliate by blocking every piece of legislation they tried to move (which, of course, they’ve done anyhow).”

Harman says that she approached Edley privately after the forum closed and said she appreciated that Obama might have been in danger but felt that he “bent over backwards” to protect lawbreakers within the Bush administration. She recalled, “He shrugged and said they will never be prosecuted, and that sometimes politics trumps rule of law.”

The last I checked waterboarding was still considered torture and torture was still a crime. Obama could well become a target for impeachment proceedings should the Democrats lose control of the Senate and more seats in the House. So long as the Obama administration refuses to prosecute former Bush administration officials, as well as, Bush and Cheney, they themselves are complicit in war crimes as per established laws and treaties of this country and the oaths that they took to uphold those laws and the Constitution.  

Constitutional lawyer Bruce Fein and former presidential candidate and consumer advocate, Ralph Nader visited Harvard Law School to  discuss the constitutional crimes of Presidents George W. Bush and Barack H.Obama It is well worth the hour to watch if you love this country and respect the Constitution and our laws.

February 10, 2012

Ralph Nader ’58 and Bruce Fein ’72 visited Harvard Law School for a talk sponsored by the HLS Forum and the Harvard Law Record. At the event, “America’s Lawless Empire: The Constitutional Crimes of Bush and Obama,” both men discussed what they called lawless, violent practices by the White House and its agencies that have become institutionalized by both political parties. [..]

Both men took issue with the National Defense Authorization Act, which sets the budget and policies of the Department of Defense and generally expands the power of the government to fight the war on terror. The Act permits, among other practices, the indefinite detention of terrorism suspects without trial. Fein encouraged those in attendance to contact their members of congress about repealing it.

Bruce Fein has been my “hero” since he called for the simultaneous impeachment of both Bush and Cheney as a requirement of congress mandated by the Constitution and then drafted articles of impeachment of Barack Obama for the same reasons. The Constitution and its enforcement is not a spectator sport.

President Barack Obama once again has gone after a whistle blower while letting the criminals completely off the hook or walk away with a slap on the wrist. Since taking office Obama has waged unprecedented war on whistleblowers despite campaign promises to have a transparent government.

Former CIA Officer John Kiriakou Charged with Disclosing Covert Officer’s Identity and Other Classified Information to Journalists and Lying to CIA’s Publications Review Board

   A former CIA officer, John Kiriakou, was charged today with repeatedly disclosing classified information to journalists, including the name of a covert CIA officer and information revealing the role of another CIA employee in classified activities, Justice Department officials announced.

   The charges result from an investigation that was triggered by a classified defense filing in January 2009, which contained classified information the defense had not been given through official government channels, and, in part, by the discovery in the spring of 2009 of photographs of certain government employees and contractors in the materials of high-value detainees at Guantanamo Bay, Cuba. The investigation revealed that on multiple occasions, one of the journalists to whom Kiriakou is alleged to have illegally disclosed classified information, in turn, disclosed that information to a defense team investigator, and that this information was reflected in the classified defense filing and enabled the defense team to take or obtain surveillance photographs of government personnel. There are no allegations of criminal activity by any members of the defense team for the detainees.

Like she did with the outing of CIA operative Valerie Plame-Wilson, Marcy Wheeler, along with Jim White at emptywheel, dissects this case exposing the hypocrisy of the government and the cover up of the real crime, a war crime, torture, here, here, here, here and here. In those articles they expose the weakness of the DOJ’s case against Kiriakou and that Obama has covered for and refused to prosecute war crimes committed by CIA agents and covers up military war crimes by hiding the evidence under the guise of national security.

A prime example of this hypocrisy it outrageous that has allowed war criminal to get off with just a tap on the wrist while the commanding officers were not even mentioned:

January 23, 2012 – CAMP PENDLETON, Calif. (AP) – A Marine sergeant who told his troops to “shoot first, ask questions later” in a raid that killed unarmed Iraqi women, children and elderly pleaded guilty Monday in a deal that will carry no more than three months confinement and end the largest and longest-running criminal case against U.S. troops from the Iraq War.

The agreement marked a stunning and muted end to the case once described as the Iraq War’s version of the My Lai massacre in Vietnam. The government failed to get one manslaughter conviction in the case that implicated eight Marines in the deaths of 24 Iraqis in the town of Haditha in 2005.[..]

Kamil al-Dulaimi, a Sunni lawmaker from the Anbar provincial capital of Ramadi, called the plea deal a travesty of justice for the victims and their families. “It’s just another barbaric act of Americans against Iraqis,” al-Dulaimi told The Associated Press. “They spill the blood of Iraqis and get this worthless sentence for the savage crime against innocent civilians.”

This is a disgrace.

Obama is not upholding his oath of office and that is an even bigger disgrace.

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