The NDAA and Indefinite Detention

As I’m sure you’re aware by now, the National Defense Authorization Act was passed by the House last night and the president is expected to sign it into law. Activists on the left are accusing Congress and the president of subverting civil liberties by signing the law due to the indefinite detention language in the bill. Mainly, the concern is that U.S. citizens could be indefinitely detained.

However, Rep. Adam Smith (D-WA), ranking member of the House Armed Services Committee, says the language explicitly prevents the indefinite detention of U.S. citizens.

First, the AUMF (Authorization for Use of Military Force) section in our bill, Section 1021, merely codifies current law. It specifically states, “nothing in this section shall be construed to affect existing law or authorities, relating to the detention of United States citizens, lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.” Quite simply, our courts will decide what the law is regarding detention of U.S. citizens.

Second, any U.S. citizen detained under Section 1021 has the right under habeas corpus to have the legality of any such detention determined by our courts. The courts have also held that anyone detained under the AUMF at Guantanamo Bay, Cuba, also has habeas rights. We do not change these rights.

Third, Section [1032], entitled, “Military Custody For Foreign al-Qaeda Terrorists” specifically excludes US citizens. It states, “the requirement to detain a person in military custody under this section does not extend to citizens of the United States.” It also states the requirement to detain under Section [1032] “does not extend to a lawful resident alien 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.”

Fourth, we also codify periodic review for those being detained at Guantanamo Bay, now and in the future, which is an important procedure for those detained indefinitely as a threat to the United States under the law of war.

Habeas rights for any detainee irrespective of citizenship will remain intact (and backed up by the Supreme Court), and citizens can’t be held in military custody. The reason the president decided to sign the bill and reversed his previous decision to veto the bill was because he wanted the discretion to hold civilian trials for suspected terrorists. The bill in its current form allows him to do that, hence the non-veto.

The bottom line here is the law merely codifies the current policy, which, admittedly, is ugly and questionable. If you really want to kill this thing, contact your senator. Tweeting impeachment threats at the president is tilting at windmills.

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  • MatherZ

    Well, he SHOULDN’T have “the discretion to hold civilian trials for suspected terrorists.” He should have the duty and responsibility to hold civilian trials for suspected terrorists.
    Whether or not to give a suspected criminal a fair trial shouldn’t be at anyone’s discretion – that’s why countries have constitutions.

    Enemy soldiers are enemy soldiers, and there are conventions on how the military deals with them. Everyone that isn’t a soldier faces the judicial system. What are we afraid of?
    (besides everything, apparently)

    • Guest

      I agree. This is a slippery slope. We can’t always hope to have a president as discreet as President Obama. The thought that a clown like Newt Gingrich might have this kind of power is creepy.

    • i_a_c

      SCOTUS already upheld habeas corpus for detainees, and they also upheld detention of enemy combatants. I agree with Dilden here–this may be totally legal and the current policy of the government, but I’m skeptical that these provisions will always be used in good faith.

  • http://twitter.com/SugaRazor Razor

    Like I said, not that liberal. Liberal by the current standards, but “merely codifying the current policy” is not a liberal act.

  • trgahan

    I like to believe that President Obama would have long ago restored full rights to detainees if the GOP won’t not have been able to convince the American people that such a move was an “appeasement of our enemies!”
    Remember, this is the electorate that was convinced after 9/11 that every suburb had a sleeper cell living in it and our malls were a primary target. We cheered the Patriot Act and Supreme Court Justices successfully making arguements for torture based of a fictional TV series.

    Restoring sanity to this issue is going to take years and slow legislative progress. The President and several memebers of congress are pushing in that direction because they are on our side. Remove them in another election hissy fit will only take us back to square one.

    • jmby

      One has only to look to the knee-jerk hysterical ad-pulling by several corporations during a reality show portraying Muslims as patriotic, typical American citizens, and the shockingly paranoid, ignorant and xenophobic rant that the Florida group who started the anti- show campaign released to the media, to see that you are absolutely correct. I’ve been rocked back by the f’d up anti-Muslim bile spewed online in support of the group and its belief that all Muslims are secret sleeper terrorists waiting to slit out throats as we sleep. Until cooler heads and common sense once again prevail, the pushing towards the right direction will be steeply uphill.

  • theaggressiveprogressiveQUEER

    THEN HE (POTUS) AND THE SENATE NEEDS TO DO A BETTER JOB OF PUBLIC RELATIONS. THE GOVT. IS HORRIBLE AT PUBLIC RELATIONS. LOOK HOW BAD THEY DID WITH PR FOR THE HEALTH CARE BILL? THEY RELEASED THE HUGE PDF ONLNE EXPECTING PEOPLE TO READ IT . REALLY? REALLY? PR PEOPLE. PR. FIRE JAY CARNEY AND HIRE A REAL SPOKESPERSON WHO KNOWS WHAT SHE/HE IS DOING.

    • http://drangedinaz.wordpress.com/ IrishGrrrl

      Why all the caps? You realize that using caps causes us not to want to read your post.

      • Guest

        I think she hit the caps lock key on the keyboard instead of the shift key.

        • http://phydeauxpseaks.blogspot.com Bob Rutledge

          And then failed to see the words as they appeared on her screen?

    • http://drangedinaz.wordpress.com/ IrishGrrrl

      To address the substance (and ignore the style) of your post….I think the PR failure can only partially be laid at the President’s feet. First, you’re ignoring the complete inability of Dems to stay on message, unlike the Republicans that hang on to their talking points like dogs with a bone. Second, you’re ignoring the MSM’s unwillingness to focus on the things that matter. Instead of pointing out the facts of the HCR bill, they spent an enormous amount of time on the controversy about non-existent Death Panels. The fact that Americans want to watch the craziest newscasts and not the most substantial ones is not something you blame the President for. Third, the majority of the problems the country is facing now are very complicated. Hell, that’s why they’ve been put off getting solved because they’re hard to explain, hard to fix and are going to pretty much piss everyone off at least a little. It’s very hard to fit the suggested solutions onto bumper stickers, which is what Americans, again, are demanding. Give me a train wreck and make it short enough to fit on a bumper sticker. Again, not the President’s fault. Fourth, the opposition has poisoned the minds of many Americans against trusting the President (if they weren’t poisoned by the fact that he’s an African American in the first place). You can sh0ut the truth in some people’s face all day long but if they discount the messenger, it doesn’t matter if its the truth. As a result, I would posit that it might not be possible to communicate any better than they have been doing. That the deck is stacked against him.

      So, before you made your statement above, did you even consider points 1-4 above?

  • http://drangedinaz.wordpress.com/ IrishGrrrl

    In a certain sense, this is a victory. One of the reasons that the Pres. was unable to close Guantanomo was because Congress, i.e. the pantywaists, were afraid that all hell would break loose if the detainees were moved into civilian, criminal prisons. If the Pres. can now hold civilian trials and does it successfully, the argument that there is no harm in putting them in stateside prisons will hold more water…..making the day that Guantanomo can be closed that much closer. So is this legislation perfect? No. Might it, in a roundabout way, achieve something we all really wanted and for which the President was roundly (and undeservedly criticized)? Yes.

  • JMAshby

    When presented with a choice betwee codifying current policy, and having the Pentagon temporarily defunded, every single president ever would go with codifying current policy.

    • http://twitter.com/SugaRazor Razor

      I know I’m gonna sound like a dickhead right-winger here, but “codifying current [bad] policy” isn’t exactly what I would consider “change.”

      He was dealt the worst hand in generations, so I get it, but it’s still disappointing.

  • http://twitter.com/JPFrankenstein JPFrankenstein

    I really think this blog has become a place where no one is allowed to disagree with Obama’s actions. Everything he does is not in our best interests….yet no one here is interested in that debate.

    • http://twitter.com/JPFrankenstein JPFrankenstein

      Sorry…I meant: ‘Not everything he does is in our best interest’. I do agree with most of his positions.

      But on this issue, he will essentially enshrine into law the legal and indefinite suspension of habeas corpus in America.

      And if anyone thinks this won’t pertain to US citizens….not sure what to say.

      • dildenusa

        OK. But what about president Obama having to fight the republican clowns in congress and the tea party republics with their propaganda/disinformation machine financed by scum like the Koch Roach brothers and their ilk. I read a very interesting article by Naomi Klein in The Nation magazine. The jist of it is that a few years ago 71% in a poll agreed that humans are causing climate change. Today that number is down to around 44%. Why? It’s the disinformation campaign of the tea party republics financed by the Koch Roach brothers. Here is the article if you want to see for yourself.
        http://www.thenation.com/article/164497/capitalism-vs-climate

        • http://twitter.com/JPFrankenstein JPFrankenstein

          No argument with your points at all. I agree that republicans in congress have made it nearly impossible for the President to accomplish many aspect of his agenda.

          But to me, that doesn’t excuse abolishing our rights as citizens.

          • venezia3540

            Did you miss this part?:

            “Habeas rights for any detainee irrespective of citizenship will remain intact (and backed up by the Supreme Court), and citizens can’t be held in military custody. The reason the president decided to sign the bill and reversed his previous decision to veto the bill was because he wanted the discretion to hold civilian trials for suspected terrorists. The bill in its current form allows him to do that, hence the non-veto.”

    • JMAshby

      Based on what, exactly? Disagree all you want, but if your facts are wrong, someone is likely to point that out.

  • villemar

    There’s a full Firebagger meltdown on right now, so we will be getting an extra large dosage of Firebagger venom, bile, batshit Obama hatred and Alex Jones-style hyperparanoia now. Plan for lots of headaches in your eyes.

    Since the main Firebaggers have been proven to lie in the past, you’ll forgive me for not accepting their interpretation yet.

    • http://twitter.com/JPFrankenstein JPFrankenstein

      So, there are only 2 distinct reactions available?

      1) Full acceptance

      2) Firebagger

      Can’t we disagree with this president and still want to vote for him?

      • Chris Andersen

        Name one person who has advocated “full acceptance”?

        • http://www.twitter.com/bobcesca_go Bob Cesca

          Not me.

      • villemar

        Yeah, you know that’s a false binary choice. I’m saying the Firebaggers haven’t had the best track record thus far so I am more sceptical of them than the POTUS. I would like to see clarification from the WH. I would not like the interpretation and implications completely ceded to the likes of Greenwald et al.

    • http://twitter.com/SugaRazor Razor

      Of course this could never negatively affect innocent, law-abiding citizens.

      Just like the “papers please” laws could never affect innocent, law-abiding citizens.

      I don’t think it’s fair to label everyone who thinks this is a horrible, horrible idea as a hyperparanoid firebagger.

      • villemar

        I did say “yet” so if they turn out to be 100% right then I’ll give them credit for that. The signal-to-noise ratio right now is too high, as always with them, and like I said their track record is shitty and more often then not wrong, based on a narrative of perpetual Obama malevolence.

      • i_a_c

        You’re right, this is troublesome. I don’t think the government could get away with arresting someone not connected to al Qaeda, but that might not stop someone with an axe to grind. Unfortunately, all this stuff has been upheld by SCOTUS, and will be written into law. It will probably stay that way until the law is abused and a lawsuit is brought before the Supreme Court.

  • drsquid

    Impeachment tweets? Really? Congress is going to impeach a President over a bill he signed that Congress passed.

    These Presidency Cultists get stupider by the minute.

    • villemar

      I like this meme, “Presidency Cultists.” Yay, let’s pretend there’s only one branch of government and scream at the President some more! Yaaayyy! That’s grreat, yaaaayyyy!!!!

      I also like “Outrage Porn.” specifically Obama Outgrage Porn that Republicans & firebaggers can’t seem to get enough of.

      • Brutlyhonest

        Republicans & firebaggers: They may have gone in different directions, but both ended up the same place around the bend.

        • villemar

          Yeah I’ve always maintained that if you go far enough to the left you’ll end up meeting your bretheren on the far far right on the dark side of the moon, and vice versa.

          • ranger11

            It’s the classic Stalin/Hitler alliance. Cats and dogs fucking.