>By Jason Easley |December 31, 2011|
In his signing statement attached to the NDAA, President Obama made it clear that the language about detentions does not apply to US citizens.
In the second paragraph of his NDAA signing statement, Obama stated, “The fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists. Over the last several years, my Administration has developed an effective, sustainable framework for the detention, interrogation and trial of suspected terrorists that allows us to maximize both our ability to collect intelligence and to incapacitate dangerous individuals in rapidly developing situations, and the results we have achieved are undeniable. Our success against al-Qa’ida and its affiliates and adherents has derived in significant measure from providing our counter-terrorism professionals with the clarity and flexibility they need to adapt to changing circumstances and to utilize whichever authorities best protect the American people, and our accomplishments have respected the values that make our country an example for the world.”
The president explained why he signed the NDAA, “Against that record of success, some in Congress continue to insist upon restricting the options available to our counter-terrorism professionals and interfering with the very operations that have kept us safe. My Administration has consistently opposed such measures. Ultimately, I decided to sign this bill not only because of the critically important services it provides for our forces and their families and the national security programs it authorizes, but also because the Congress revised provisions that otherwise would have jeopardized the safety, security, and liberty of the American people. Moving forward, my Administration will interpret and implement the provisions described below in a manner that best preserves the flexibility on which our safety depends and upholds the values on which this country was founded.”Obama then strongly debunked once and for all the notion that the NDAA detention provisions apply to American citizens, “Section 1021 affirms the executive branch’s authority to detain persons covered by the 2001 Authorization for Use of Military Force (AUMF) (Public Law 107-40; 50 U.S.C. 1541 note). This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then. Two critical limitations in section 1021 confirm that it solely codifies established authorities. First, under section 1021(d), the bill does not “limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.” Second, under section 1021(e), the bill may not be construed to affect any “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.” My Administration strongly supported the inclusion of these limitations in order to make clear beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF. Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.”
The Lawfare blog, translated section 1022 into plain English, “We would also note that, under a plain-language reading, section 1022 would not even cover persons apprehended in the U.S. by the FBI or other law-enforcement officials: That provision applies only to a person “who is captured in the course of hostilities authorized by the AUMF”—and in the case of a domestic FBI or other law-enforcement arrest, presumably neither the arresting entity nor the individual would be engaged in “hostilities authorized by the AUMF.” On this reading—which is fortified by the language clarifying that 1022 does not affect FBI authorities—the statute could only apply in the first instance to someone captured by a U.S. agency acting pursuant to the AUMF, which in effect would mean apprehensions by the armed forces overseas.”
Lawfare also pointed out that although Section 1022 is both ambiguous and toothless it is troubling because the message it sends it that the American legislature prefers indefinite detentions. The language added to the NDAA could potentially undo much of the work of the Obama administration to show the world the prosecutions are our preferred method to deal with suspects.
In summary and for the millionth time, the detention provisions do not apply to the NDAA. The law itself states that it does not apply to American citizens. Some people will still continue to feed their mistrust of government, but it is in black and white. It was written in the revised legislation.
The NDAA is a terrible law because it forbids the funding to close GITMO. It is a terrible law because the language of the bill contains a predisposition towards indefinite detentions. The language used is the right’s attempt to revive the policies of the war on terror. The NDAA is lousy because what it is advocating runs counter to who we are as a people and what this great nation stands for. The NDAA stinks for all of these reasons and many more, but it is NOT lousy because it allows for the detention of US citizens.
Those who believe that Obama should have vetoed the NDAA don’t seem to realize that what they are asking for is that the military go unfunded. The NDAA is a yearly funding measure, and as such could be amended when a new, and hopefully saner Congress is sworn into session to remove the war on terror language that this Congress foolishly in a bit of near election year pandering passed.
Too many Democrats went along with supporting the NDAA, and those members of Congress along with their detention and torture loving GOP colleagues must be held accountable. I know that it is easier to blame the president for everything, because he is but one man, but the truth that we need to clean out and disinfect this Congress.
Yes, Obama signed the NDAA. Even if he would have vetoed it, an override would have been likely. His veto would have been nothing more than an empty symbolic gesture that would have caused more problems than it solved.
The NDAA does a lot of things, but the one thing it does not do is authorize the detention of American citizens. As we head into to 2012, can we finally put this bogus piece of misinformation to bed?