What the NDAA does

[rhoenix]

What the NDAA does
By Steve Benen

The National Defense Authorization Act (NDAA), a $662 billion spending bill that finances the military, was the focus of a contentious fight in recent months, including a formal veto threat from the White House. This week, however, there was considerable movement, including 11th-hour changes to the language, the withdrawal of the veto threat, and passage of the bill in both the House and Senate. President Obama will, by all accounts, grudgingly sign it into law.

The question, then, isn’t whether the bill is disappointing. Rather, it’s appreciating just how disappointing it is.

Adam Serwer, who’s covered the ins and outs of the NDAA fight better than anyone, has a helpful piece today summarizing what the bill does (and just as importantly, what it doesn’t do).

[The NDAA] says that the president has to hold a foreign Al Qaeda suspect captured on US soil in military detention — except it leaves enough procedural loopholes that someone like convicted underwear bomber and Nigerian citizen Umar Abdulmutallab could actually go from capture to trial without ever being held by the military.

It does not, contrary to what many media outlets have reported, authorize the president to indefinitely detain without trial an American citizen suspected of terrorism who is captured in the US. A last minute compromise amendment adopted in the Senate, whose language was retained in the final bill, leaves it up to the courts to decide if the president has that power, should a future president try to exercise it. But if a future president does try to assert the authority to detain an American citizen without charge or trial, it won’t be based on the authority in this bill.

There’s been a fair amount of coverage this week, arguing that the bill, among things, empowers the executive branch “to throw American citizens into prison for life without charges or a trial.” Adam’s reporting shows otherwise.

This is not to say the NDAA is a good bill. In fact, as Adam explained, the bill’s language “writes into law an assumed role for the military in domestic counterterrorism that did not exist before,” and though this president and this administration appear to have no interest is using the law the way Republicans would like, we don’t know how future presidents may implement the same provisions.

But it’s not quite as outrageous as some reports have suggested.

I had one related thought about this. President Obama has been facing quite a bit of criticism from the left over the NDAA’s provisions, and that’s understandable. It’s pretty easy to make the case that the measure should have been vetoed.

That said, if I’m making a list of those responsible for the NDAA’s most odious measures, the White House wouldn’t be on top. I’d start, obviously, with congressional Republicans whose misguided worldview intended to make the NDAA even more offensive, but it was a whole lot of congressional Democrats who went along with them.

We’ve seen this problem before — most notably with the detention facility at Guantanamo Bay — where the president and his start off in a relatively good place in a national-security dispute, but end up in a much worse place because congressional Dems helped push them there.

Regardless, the NDAA is done. Recalling a phrase I’m sure I’ve used more than once this year, it’s bad, but it could have been worse.

I've been seeing this fellow's articles recently, and I've been finding them to be thought-provoking. In this one, while the NDAA is bad, it isn't quite as bad as we may have thought.

[The Minx]

I hope you're right, but the ACLU hasn't backed down from its stance that the bill law allows people to be held indefinitely without trial.

[Soontir948]

Edit: Would be nice if these "reporters" actually cite and quote the damn thing.

That article and the links it has are a fucking baloney to sift through.

Apparently that last minute amendment by Feinstein is what put this provision in section 1031:

(e) AUTHORITIES.—Nothing in this section shall be
20 construed to affect existing law or authorities, relating to
21 the detention of United States citizens, lawful resident
22 aliens of the United States or any other persons who are
23 captured or arrested in the United States.

Maybe we were all really worried for nothing (or it's what got that amendment passed). Though apparently, there's going to be a bill introduced in January to make sure citizens/legal residents aren't indefinitely detain.

Edit #2: The amendment was passed all the way back on December 1st.

[General Havoc]

But if the NDAA isn't the absolute end of freedom, justice, and democracy, how will everyone on this board feel superior to the rest of the country, and get an excuse to speak of the sheep-like Americans who permit their rights to be stolen from them, unlike the smart and virtuous [INSERT GROUP]?

[Comrade Tortoise]

I will trust the actual lawyer...
http://www.salon.com/2011/12/16/three_m ... tion_bill/

Condemnation of President Obama is intense, and growing, as a result of his announced intent to sign into law the indefinite detention bill embedded in the 2012 National Defense Authorization Act (NDAA). These denunciations come not only from the nation’s leading civil liberties and human rights groups, but also from the pro-Obama New York Times Editorial Page, which today has a scathing Editorial describing Obama’s stance as “a complete political cave-in, one that reinforces the impression of a fumbling presidency” and lamenting that “the bill has so many other objectionable aspects that we can’t go into them all,” as well as from vocal Obama supporters such as Andrew Sullivan, who wrote yesterday that this episode is “another sign that his campaign pledge to be vigilant about civil liberties in the war on terror was a lie.” In damage control mode, White-House-allied groups are now trying to ride to the rescue with attacks on the ACLU and dismissive belittling of the bill’s dangers.

For that reason, it is very worthwhile to briefly examine — and debunk — the three principal myths being spread by supporters of this bill, and to do so very simply: by citing the relevant provisions of the bill, as well as the relevant passages of the original 2001 Authorization to Use Military Force (AUMF), so that everyone can judge for themselves what this bill actually includes (this is all above and beyond the evidence I assembled in writing about this bill yesterday):

Myth # 1: This bill does not codify indefinite detention

Section 1021 of the NDAA governs, as its title says, “Authority of the Armed Forces to Detain Covered Persons Pursuant to the AUMF.” The first provision — section (a) — explicitly “affirms that the authority of the President” under the AUMF ”includes the authority for the Armed Forces of the United States to detain covered persons.” The next section, (b), defines “covered persons” — i.e., those who can be detained by the U.S. military — as “a person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.” With regard to those “covered individuals,” this is the power vested in the President by the next section, (c):

It simply cannot be any clearer within the confines of the English language that this bill codifies the power of indefinite detention. It expressly empowers the President — with regard to anyone accused of the acts in section (b) – to detain them “without trial until the end of the hostilities.” That is the very definition of “indefinite detention,” and the statute could not be clearer that it vests this power. Anyone claiming this bill does not codify indefinite detention should be forced to explain how they can claim that in light of this crystal clear provision.

It is true, as I’ve pointed out repeatedly, that both the Bush and Obama administrations have argued that the 2001 AUMF implicitly (i.e., silently) already vests the power of indefinite detention in the President, and post-9/11 deferential courts have largely accepted that view (just as the Bush DOJ argued that the 2001 AUMF implicitly (i.e., silently) allowed them to eavesdrop on Americans without the warrants required by law). That’s why the NDAA can state that nothing is intended to expand the 2001 AUMF while achieving exactly that: because the Executive and judicial interpretation being given to the 20o1 AUMF is already so much broader than its language provides.

But this is the first time this power of indefinite detention is being expressly codified by statute (there’s not a word about detention powers in the 2001 AUMF). Indeed, as the ACLU and HRW both pointed out, it’s the first time such powers are being codified in a statute since the McCarthy era Internal Security Act of 1950, about which I wrote yesterday.

Myth #2: The bill does not expand the scope of the War on Terror as defined by the 2001 AUMF

This myth is very easily dispensed with. The scope of the war as defined by the original 2001 AUMF was, at least relative to this new bill, quite specific and narrow. Here’s the full extent of the power the original AUMF granted:

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Under the clear language of the 2001 AUMF, the President’s authorization to use force was explicitly confined to those who (a) helped perpetrate the 9/11 attack or (b) harbored the perpetrators. That’s it. Now look at how much broader the NDAA is with regard to who can be targeted:

Section (1) is basically a re-statement of the 2001 AUMF. But Section (2) is a brand new addition. It allows the President to target not only those who helped perpetrate the 9/11 attacks or those who harbored them, but also: anyone who “substantially supports” such groups and/or “associated forces.” Those are extremely vague terms subject to wild and obvious levels of abuse (see what Law Professor Jonathan Hafetz told me in an interview last week about the dangers of those terms). This is a substantial statutory escalation of the War on Terror and the President’s powers under it, and it occurs more than ten years after 9/11, with Osama bin Laden dead, and with the U.S. Government boasting that virtually all Al Qaeda leaders have been eliminated and the original organization (the one accused of perpetrating 9/11 attack) rendered inoperable.

It is true that both the Bush and Obama administration have long been arguing that the original AUMF should be broadly “interpreted” so as to authorize force against this much larger scope of individuals, despite the complete absence of such language in that original AUMF. That’s how the Obama administration justifies its ongoing bombing of Yemen and Somalia and its killing of people based on the claim that they support groups that did not even exist at the time of 9/11 – i.e., they argue: these new post-9/11 groups we’re targeting are “associated forces” of Al Qaeda and the individuals we’re killing “substantially support” those groups. But this is the first time that Congress has codified that wildly expanded definition of the Enemy in the War on Terror. And all anyone has to do to see that is compare the old AUMF with the new one in the NDAA.

Myth #3: U.S. citizens are exempted from this new bill

This is simply false, at least when expressed so definitively and without caveats. The bill is purposely muddled on this issue which is what is enabling the falsehood.

There are two separate indefinite military detention provisions in this bill. The first, Section 1021, authorizes indefinite detention for the broad definition of “covered persons” discussed above in the prior point. And that section does provide that “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.” So that section contains a disclaimer regarding an intention to expand detention powers for U.S. citizens, but does so only for the powers vested by that specific section. More important, the exclusion appears to extend only to U.S. citizens “captured or arrested in the United States” — meaning that the powers of indefinite detention vested by that section apply to U.S. citizens captured anywhere abroad (there is some grammatical vagueness on this point, but at the very least, there is a viable argument that the detention power in this section applies to U.S. citizens captured abroad).

But the next section, Section 1022, is a different story. That section specifically deals with a smaller category of people than the broad group covered by 1021: namely, anyone whom the President determines is “a member of, or part of, al-Qaeda or an associated force” and “participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.” For those persons, section (a) not only authorizes, but requires (absent a Presidential waiver), that they be held “in military custody pending disposition under the law of war.” The section title is “Military Custody for Foreign Al Qaeda Terrorists,” but the definition of who it covers does not exclude U.S. citizens or include any requirement of foreignness.

That section — 1022 — does not contain the broad disclaimer regarding U.S. citizens that 1021 contains. Instead, it simply says that the requirement of military detention does not apply to U.S. citizens, but it does not exclude U.S. citizens from the authority, the option, to hold them in military custody. Here is what it says:

The only provision from which U.S. citizens are exempted here is the “requirement” of military detention. For foreign nationals accused of being members of Al Qaeda, military detention is mandatory; for U.S. citizens, it is optional. This section does not exempt U.S citizens from the presidential power of military detention: only from the requirement of military detention.

The most important point on this issue is the same as underscored in the prior two points: the “compromise” reached by Congress includes language preserving the status quo. That’s because the Obama administration already argues that the original 2001 AUMF authorizes them to act against U.S. citizens (obviously, if they believe they have the power to target U.S. citizens for assassination, then they believe they have the power to detain U.S. citizens as enemy combatants). The proof that this bill does not expressly exempt U.S. citizens or those captured on U.S. soil is that amendments offered by Sen. Feinstein providing expressly for those exemptions were rejected. The “compromise” was to preserve the status quo by including the provision that the bill is not intended to alter it with regard to American citizens, but that’s because proponents of broad detention powers are confident that the status quo already permits such detention.

In sum, there is simply no question that this bill codifies indefinite detention without trial (Myth 1). There is no question that it significantly expands the statutory definitions of the War on Terror and those who can be targeted as part of it (Myth 2). The issue of application to U.S. citizens (Myth 3) is purposely muddled — that’s why Feinstein’s amendments were rejected — and there is consequently no doubt this bill can and will be used by the U.S. Government (under this President or a future one) to bolster its argument that it is empowered to indefinitely detain even U.S. citizens without a trial (NYT Editorial: “The legislation could also give future presidents the authority to throw American citizens into prison for life without charges or a trial”; Sen. Bernie Sanders: “This bill also contains misguided provisions that in the name of fighting terrorism essentially authorize the indefinite imprisonment of American citizens without charges”).

Even if it were true that this bill changes nothing when compared to how the Executive Branch has been interpreting and exercising the powers of the old AUMF, there are serious dangers and harms from having Congress — with bipartisan sponsors, a Democratic Senate and a GOP House — put its institutional, statutory weight behind powers previously claimed and seized by the President alone. That codification entrenches these powers. As the New York Times Editorial today put it: the bill contains “terrible new measures that will make indefinite detention and military trials a permanent part of American law.”

What’s particularly ironic (and revealing) about all of this is that former White House counsel Greg Craig assured The New Yorker‘s Jane Mayer back in February, 2009 that it’s “hard to imagine Barack Obama as the first President of the United States to introduce a preventive-detention law.” Four months later, President Obama proposed exactly such a law — one that The New York Times described as “a departure from the way this country sees itself, as a place where people in the grip of the government either face criminal charges or walk free” — and now he will sign such a scheme into law.

The link has scans of the text with the relevant sections highlighted.
The amendment does not protect the civil rights of US citizens at all, nor was it intended to do so. Obama also did not threaten veto on those grounds. Instead, he threatened veto because the bill threatened to take away executive power by MAKING the executive branch do certain things. The president has claimed the right to detain US citizens without trial for some time now, all this bill does now is codify that claim of power into law.

This is why the ACLU is sticking to its guns. Nothing has changed.

[SirNitram]

Signing Statement included. As follows, according to AP:

Today I have signed into law H.R. 1540, the “National Defense Authorization Act for Fiscal Year 2012.” I have signed the Act chiefly because it authorizes funding for the defense of the United States and its interests abroad, crucial services for service members and their families, and vital national security programs that must be renewed. In hundreds of separate sections totaling over 500 pages, the Act also contains critical Administration initiatives to control the spiraling health care costs of the Department of Defense (DoD), to develop counterterrorism initiatives abroad, to build the security capacity of key partners, to modernize the force, and to boost the efficiency and effectiveness of military operations worldwide.

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 counterterrorism 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.

Against that record of success, some in Congress continue to insist upon restricting the options available to our counterterrorism 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.

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.

Section 1022 seeks to require military custody for a narrow category of non-citizen detainees who are “captured in the course of hostilities authorized by the Authorization for Use of Military Force.” This section is ill-conceived and will do nothing to improve the security of the United States. The executive branch already has the authority to detain in military custody those members of al-Qa’ida who are captured in the course of hostilities authorized by the AUMF, and as Commander in Chief I have directed the military to do so where appropriate. I reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat. While section 1022 is unnecessary and has the potential to create uncertainty, I have signed the bill because I believe that this section can be interpreted and applied in a manner that avoids undue harm to our current operations.

I have concluded that section 1022 provides the minimally acceptable amount of flexibility to protect national security. Specifically, I have signed this bill on the understanding that section 1022 provides the executive branch with broad authority to determine how best to implement it, and with the full and unencumbered ability to waive any military custody requirement, including the option of waiving appropriate categories of cases when doing so is in the national security interests of the United States. As my Administration has made clear, the only responsible way to combat the threat al-Qa’ida poses is to remain relentlessly practical, guided by the factual and legal complexities of each case and the relative strengths and weaknesses of each system. Otherwise, investigations could be compromised, our authorities to hold dangerous individuals could be jeopardized, and intelligence could be lost. I will not tolerate that result, and under no circumstances will my Administration accept or adhere to a rigid across-the-board requirement for military detention. I will therefore interpret and implement section 1022 in the manner that best preserves the same flexible approach that has served us so well for the past 3 years and that protects the ability of law enforcement professionals to obtain the evidence and cooperation they need to protect the Nation.

My Administration will design the implementation procedures authorized by section 1022(c) to provide the maximum measure of flexibility and clarity to our counterterrorism professionals permissible under law. And I will exercise all of my constitutional authorities as Chief Executive and Commander in Chief if those procedures fall short, including but not limited to seeking the revision or repeal of provisions should they prove to be unworkable.

Sections 1023-1025 needlessly interfere with the executive branch’s processes for reviewing the status of detainees. Going forward, consistent with congressional intent as detailed in the Conference Report, my Administration will interpret section 1024 as granting the Secretary of Defense broad discretion to determine what detainee status determinations in Afghanistan are subject to the requirements of this section.

Sections 1026-1028 continue unwise funding restrictions that curtail options available to the executive branch. Section 1027 renews the bar against using appropriated funds for fiscal year 2012 to transfer Guantanamo detainees into the United States for any purpose. I continue to oppose this provision, which intrudes upon critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests. For decades, Republican and Democratic administrations have successfully prosecuted hundreds of terrorists in Federal court. Those prosecutions are a legitimate, effective, and powerful tool in our efforts to protect the Nation. Removing that tool from the executive branch does not serve our national security. Moreover, this intrusion would, under certain circumstances, violate constitutional separation of powers principles.

Section 1028 modifies but fundamentally maintains unwarranted restrictions on the executive branch’s authority to transfer detainees to a foreign country. This hinders the executive’s ability to carry out its military, national security, and foreign relations activities and like section 1027, would, under certain circumstances, violate constitutional separation of powers principles. The executive branch must have the flexibility to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers. In the event that the statutory restrictions in sections 1027 and 1028 operate in a manner that violates constitutional separation of powers principles, my Administration will interpret them to avoid the constitutional conflict.

Section 1029 requires that the Attorney General consult with the Director of National Intelligence and Secretary of Defense prior to filing criminal charges against or seeking an indictment of certain individuals. I sign this based on the understanding that apart from detainees held by the military outside of the United States under the 2001 Authorization for Use of Military Force, the provision applies only to those individuals who have been determined to be covered persons under section 1022 before the Justice Department files charges or seeks an indictment. Notwithstanding that limitation, this provision represents an intrusion into the functions and prerogatives of the Department of Justice and offends the longstanding legal tradition that decisions regarding criminal prosecutions should be vested with the Attorney General free from outside interference. Moreover, section 1029 could impede flexibility and hinder exigent operational judgments in a manner that damages our security. My Administration will interpret and implement section 1029 in a manner that preserves the operational flexibility of our counterterrorism and law enforcement professionals, limits delays in the investigative process, ensures that critical executive branch functions are not inhibited, and preserves the integrity and independence of the Department of Justice.

Other provisions in this bill above could interfere with my constitutional foreign affairs powers. Section 1244 requires the President to submit a report to the Congress 60 days prior to sharing any U.S. classified ballistic missile defense information with Russia. Section 1244 further specifies that this report include a detailed description of the classified information to be provided. While my Administration intends to keep the Congress fully informed of the status of U.S. efforts to cooperate with the Russian Federation on ballistic missile defense, my Administration will also interpret and implement section 1244 in a manner that does not interfere with the President’s constitutional authority to conduct foreign affairs and avoids the undue disclosure of sensitive diplomatic communications. Other sections pose similar problems. Sections 1231, 1240, 1241, and 1242 could be read to require the disclosure of sensitive diplomatic communications and national security secrets; and sections 1235, 1242, and 1245 would interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with foreign governments. Like section 1244, should any application of these provisions conflict with my constitutional authorities, I will treat the provisions as non-binding.

My Administration has worked tirelessly to reform or remove the provisions described above in order to facilitate the enactment of this vital legislation, but certain provisions remain concerning. My Administration will aggressively seek to mitigate those concerns through the design of implementation procedures and other authorities available to me as Chief Executive and Commander in Chief, will oppose any attempt to extend or expand them in the future, and will seek the repeal of any provisions that undermine the policies and values that have guided my Administration throughout my time in office.

BARACK OBAMA
THE WHITE HOUSE, December 31, 2011.

[Comrade Tortoise]

Yeah. "This curtails executive powers" and the president opposes his ability to send detainees to foreign countries where they can be tortured by proxy. Heaven forbid, we cannot hide behind the non-signatory status of some countries with respect to the convention against torture, or say with crocodile tears that we had no idea the egyptians would torture someone we sent to them.

[frigidmagi]

What you think that's new? We were doing that back in the Carter years. As was and is everyone else.

[Comrade Tortoise]

What you think that's new? We were doing that back in the Carter years. As was and is everyone else.

And raping one's wife was not illegal until the 1990s and marital rape was nothing new... that does not mean it is OK.

[General Havoc]

And raping one's wife was not illegal until the 1990s and marital rape was nothing new... that does not mean it is OK.

Then I would suggest you all go do something about it, beyond sitting here and posting eighteen consecutive threads on the damned bill to people who already agree with you.

[Comrade Tortoise]

And raping one's wife was not illegal until the 1990s and marital rape was nothing new... that does not mean it is OK.

Then I would suggest you all go do something about it, beyond sitting here and posting eighteen consecutive threads on the damned bill to people who already agree with you.

Already have, Havoc. There have been petitions, there have been actual letters and phone calls to the president and my congressbeasts. The ACLU will be getting additional donations as soon as I get paid. I am not the sort to just sit and complain.

[General Havoc]

And raping one's wife was not illegal until the 1990s and marital rape was nothing new... that does not mean it is OK.

Then I would suggest you all go do something about it, beyond sitting here and posting eighteen consecutive threads on the damned bill to people who already agree with you.

Already have, Havoc. There have been petitions, there have been actual letters and phone calls to the president and my congressbeasts. The ACLU will be getting additional donations as soon as I get paid. I am not the sort to just sit and complain.

Fair enough, I'm sorry, I shouldn't be assuming.