The National Defense Authorization Act is the Greatest Threat to Civil Liberties Americans Face
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If Obama does one thing for the remainder of his presidency let it be a veto of the National Defense Authorization Act – a law recently passed by the Senate which would place domestic terror investigations and interrogations into the hands of the military and which would open the door for trial-free, indefinite detention of anyone, including American citizens, so long as the government calls them terrorists.

So much for innocent until proven guilty. So much for limited government. What Americans are now facing is quite literally the end of the line. We will either uphold the freedoms baked into our Constitutional Republic, or we will scrap the entire project in the name of security as we wage, endlessly, this futile, costly, and ultimately self-defeating War on Terror.

Over at Wired, Spencer Ackerman gives us the long and short of things:

There are still changes swirling around the Senate, but this looks like the basic shape of the 2012 National Defense Authorization Act. Someone the government says is “a member of, or part of, al-Qaida or an associated force” can be held in military custody “without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.” Those hostilities are currently scheduled toend the Wednesday after never. The move would shut down criminal trials for terror suspects.

But far more dramatically, the detention mandate to use indefinite military detention in terrorism cases isn’t limited to foreigners. It’s confusing, because two different sections of the bill seem to contradict each other, but in the judgment of the University of Texas’ Robert Chesney — a nonpartisan authority on military detention — “U.S. citizens are included in the grant of detention authority.”

An amendment that would limit military detentions to people captured overseas failed on Thursday afternoon. The Senate soundly defeated a measure to strip out all the detention provisions on Tuesday.

So despite the Sixth Amendment’s guarantee of a right to trial, the Senate bill would let the government lock up any citizen it swears is a terrorist, without the burden of proving its case to an independent judge, and for the lifespan of an amorphous war that conceivably will never end. And because the Senate is using the bill that authorizes funding for the military as its vehicle for this dramatic constitutional claim, it’s pretty likely to pass.

I seriously don’t care if you’re a liberal or a conservative or a libertarian or a Zen anarchist. So long as you aren’t Carl Levin or John McCain, the bill’s architects, you can join the Civil Liberties Caucus. Spencer writes:

Weirder still, the bill’s chief architect, Sen. Carl Levin (D-Mich.), tried to persuade skeptics that the bill wasn’t so bad. His pitch? “The requirement to detain a person in military custody under this section does not extend to citizens of the United States,” he said on the Senate floor on Monday. The bill would just letthe government detain a citizen in military custody, not force it to do that. Reassured yet?

Civil libertarians aren’t. Sen. Al Franken (D-Minn.) said it “denigrates the very foundations of this country.” Sen. Rand Paul (R-Ky.) added, “it puts every single American citizen at risk.”

This is what I mean: Give me Rand Paul and Al Franken any day of the week over the Levins and McCains of the Senate. We need more elected officials with the sensibility of Ron Wyden or Al Franken* on the left, or Rand Paul on the right. Right and left are such shoddy, ad hoc descriptors these days anyways.

What’s truly at stake when we start talking about Big Government and such is far more dangerous and preposterous than high marginal tax rates.

We’re talking about the stripping away of our most basic freedoms. We’re talking about a potential state that can call me a terrorist for writing this blog post and then lock me up and throw away the key.

What’s the line from Batman? The night is always darkest just before the dawn. I like to think that’s true, because times seem awfully dark these days.

* Update: Actually, Franken voted for the NDAA so never mind. He’s also sponsoring the PROTECT IP Act which would clamp down on free speech online.

Second Update (Dec. 17th): The National Defense Authorization Act passed. Senator Al Franken withdrew his support from the bill, stating:

“I voted against this bill because it contains provisions on detention that I find unacceptable. While I voted for an earlier version of the legislation, I did so with the hope that the final version would be significantly improved. And that didn’t happen.

“The bill that came before the Senate today still includes several troubling provisions, the worst of which could allow the military to detain Americans indefinitely, without charge or trial, even if they’re captured in the U.S. What’s more, provisions like these could ultimately undermine the safety of our troops stationed abroad. And just yesterday, FBI Director Robert Mueller testified in a Senate hearing that I attended about his deep concerns with the detention provisions and their potentially harmful effects on our counterterrorism efforts.

“Today is the anniversary of the ratification of the Bill of Rights, and this wasn’t the way to mark its birthday.”

COMMENTS

DECEMBER 15, 2011, 11:41 AM
The Sound of One President Caving
By ANDREW ROSENTHAL
LINK

For a while, the administration encouraged people to think that President Obama would take a stand against the unnecessary and very dangerous provisions that Congress jammed into the annual National Defense Authorization Act. He threatened to veto the whole bill in order to block new rules that would mandate the military custody of most terrorist suspects, and officially sanction their indefinite detention, without due process.

Yesterday, the president backed down, completely. The White House announced that he was satisfied with a slightly watered-down version of the bill that was approved by conferees from both houses and would sign it. (I’ve written about why the bill is a really, really bad idea here and here.)

I’m not all that surprised; this president has a nasty habit of giving in to political pressure. But I had let myself think that this issue was so important that Mr. Obama might take a stand. And I’m baffled now as to why he ever pretended to be taking one in the first place. It just reinforces the impression of a White House team that mumbles and fumbles.

The White House says there have been sufficient changes in the military detention provisions for the president to sign the bill. Not that I can see.

The final version still seems to require the military custody of suspected Qaeda operatives—but now the executive can make exceptions to that requirement. (The previous versions only allowed a waiver when the secretary of defense, the attorney general and the head of national intelligence all agreed.) It’s not clear to me how effective this waiver would be in practice, and it seems positively dangerous to leave this decision up to whoever might sit in the White House in future years. Remember, we got into this mess because a president thought he had the power to ignore the constitution and international law.

The bill no longer explicitly bans the use of civilian courts to prosecute Qaeda suspects, but it does authorize indefinite detention—not just for suspected members of Al Qaeda but also its allies. And who can say what that means? So among other terribly depressing consequences, the bill makes it virtually impossible to ever close Guantanamo Bay. (For more detailed information, see the Lawfare blog, which has been covering the NDAA closely, or read Charlie Savage in the Times.)

Most broadly, the bill continues the work President George W. Bush started. Mr. Bush and his supporters exploited the nation’s fear and insecurity after the Sept. 11 attacks (and Democrats’ insecurity about national security) to ram through several unnecessary bills, including the Patriot Act and a dangerous expansion of the government’s ability to spy on Americans’ international communications without judicial supervision. Now, Mr. Obama and the Democrats in Congress have proven that they’re equally willing to curtail civil liberties, and, in the process, further damage America’s global reputation as a defender of human rights.

I think it’s barely possible that Mr. Obama would sign a waiver of military detention when warranted. But it’s impossible to imagine a Republican successor doing that. And that’s the big point. This is supposed to be a nation of laws, not a nation of men we just really hope will make good decisions. I wish Mr. Obama saw that more clearly.

1:34 p.m. | Update
Read more about the National Defense Authorization Act.

NOVEMBER 30, 2011, 1:51 PM
President Obama: Veto the Defense Authorization Act
By ANDREW ROSENTHAL
LINK

When President Obama came into office in 2009 he promised to shut down the Guantanamo Bay detention camp and end the extra-judicial system that his predecessor had created to imprison terrorist suspects without trial, often without even filing charges. He has broken that promise.

Mr. Obama failed to close down Guantanamo through a combination of inaction and political ineptness. His administration made significant changes to President George W. Bush’s military tribunals, but at the same time left the door open to the concept of indefinite detention.

Now, Congress seems to be on the verge of passing a law that would make indefinite detention a permanent part of the American way.

Here’s what’s going on:

The Senate is debating the National Defense Authorization Act, which includes a series of provisions that mandate military interrogation and detention for any suspected member of Al Qaeda, and authorize indefinite detention of terrorist suspects without trial. (The law is written so broadly that parts of it could also cover U.S. citizens.)

The provisions were co-sponsored by Senators Carl Levin, Democrat of Michigan, and John McCain, Republican of Arizona, both of whom should know better. Their excuse was that some Republicans had proposed worse rules. But the smart response to that situation would have been to block faulty legislation outright, not to make a really bad deal.

A deal, by the way, that Senator Patrick Leahy, the Vermont Democrat who heads the Senate Judiciary Committee, said was hashed out behind closed doors without consultation with his committee, or the Intelligence Committee, or the Defense Department, the F.B.I. or the intelligence community.

These new policies would all but remove the F.B.I., federal prosecutors, and federal courts from the business of interrogating, charging and trying suspected terrorists. Never mind that they have a track record of doing just that, legally and in the open. Instead, it would put those functions in the hands of the military, which is not very good at it, and doesn’t want to do it.

Senator Mark Udall, Democrat of Colorado, introduced a very sensible amendment this week, with Mr. Leahy’s backing. It would have stripped the detainee measures out of the Defense Authorization Act. That proposal was defeated on Tuesday, 61-37. Click here to see how your Senator voted. (If your Senator’s a Republican, he or she almost certainly voted “no.”)

The Pentagon, the intelligence community, the Justice Department and the White House oppose the detainee rules. The people who would have to carry out these boneheaded policies think they would actually weaken national security.

Fortunately, President Obama has threatened to veto the Defense Authorization Act. Republicans, especially the gang competing for their party’s presidential nomination, will jump all over him if he does that.

Don’t be fooled by their fear-mongering. The act does not actually allocate money for the military. The appropriations bill does that. Mr. Obama can use his veto power without hurting the military. In fact, our national security depends to a very real extent on him keeping his word.

Three myths about the detention bill
BY GLENN GREENWALD, Salon
LINK

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.

UPDATE: There’s an interview with me in Harper’s today regarding American justice and With Liberty and Justice for Some.

May 23, 2009
President’s Detention Plan Tests American Legal Tradition
By WILLIAM GLABERSON, NY TIMES
LINK

President Obama’s proposal for a new legal system in which terrorism suspects could be held in “prolonged detention” inside the United States without trial would be 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.

There are, to be sure, already some legal tools that allow for the detention of those who pose danger: quarantine laws as well as court precedents permitting the confinement of sexual predators and the dangerous mentally ill. Every day in America, people are denied bail and locked up because they are found to be a hazard to their communities, though they have yet to be convicted of anything.

Still, the concept of preventive detention is at the very boundary of American law, and legal experts say any new plan for the imprisonment of terrorism suspects without trial would seem inevitably bound for the Supreme Court.

Mr. Obama has so far provided few details of his proposed system beyond saying it would be subject to oversight by Congress and the courts. Whether it would be constitutional, several of the legal experts said in interviews, would most likely depend on the fairness of any such review procedures.

Ultimately, they suggested, the question of constitutionality would involve a national look in the mirror: Is this what America does?

“We have these limited exceptions to the principle that we only hold people after conviction,” said Michael C. Dorf, a constitutional law professor at Cornell. “But they are narrow exceptions, and we don’t want to expand them because they make us uncomfortable.”

In his speech on antiterrorism policy Thursday, Mr. Obama, emphasizing that he wanted fair procedures, sought to distance himself from what critics of the Bush administration saw as its system of arbitrary detention.

“In our constitutional system,” Mr. Obama said, “prolonged detention should not be the decision of any one man.”

But Mr. Obama’s critics say his proposal is Bush redux. Closing the prison at Guantánamo Bay, Cuba, and holding detainees domestically under a new system of preventive detention would simply “move Guantánamo to a new location and give it a new name,” said Michael Ratner, president of the Center for Constitutional Rights. Defense Secretary Robert M. Gates suggested this month that as many as 100 detainees might be held in the United States under such a system.

Mr. Obama chose to call his proposal “prolonged detention,” which made it sound more reassuring than some of its more familiar names. In some countries, it is called “administrative detention,” a designation with a slightly totalitarian ring. Some of its proponents call it “indefinite detention,” which evokes the Bush administration’s position that Guantánamo detainees could be held until the end of the war on terror — perhaps for the rest of their lives — even if acquitted in war crimes trials.

Mr. Obama’s proposal was a sign of the sobering difficulties posed by the president’s plan to close the Guantánamo prison by January. The prolonged detention option is necessary, he said, because there may be some detainees who cannot be tried but who pose a security threat.

These, he said, are prisoners who in effect remain at war with the United States, even after some seven years at Guantánamo. He listed as examples detainees who received extensive explosives training from Al Qaeda, have sworn allegiance to Osama bin Laden or have otherwise made it clear that they want to kill Americans.

Other countries, including Israel and India, have had laws allowing indefinite detention of terrorism suspects, said Monica Hakimi, an assistant professor of law at the University of Michigan who has written about the subject. But, she said, few provide for essentially unending detention, and several European countries have restricted preventive detention to days or weeks.

Mr. Obama’s proposal, Professor Hakimi said, appears to be “an aggressive approach that is not commonly taken in other Western developed countries.”

In a letter to the president on Friday, Senator Russ Feingold, Democrat of Wisconsin, said he was not sure Mr. Obama’s idea would prove constitutional, and added that “such detention is a hallmark of abusive systems that we have historically criticized around the world.”

Some critics of the Bush administration, who have become critics of Mr. Obama as well, have long said they are skeptical that there are detainees who are a demonstrable risk to the country but against whom the government can make no criminal case.

But some proponents of an indefinite detention system argue that Guantánamo’s remaining 240 detainees include cold-blooded jihadists and perhaps some so warped by their experience in custody that no president would be willing to free them. And among them, the proponents say, are some who cannot be tried, in part for lack of evidence or because of tainted evidence.

Benjamin Wittes, a senior fellow at the Brookings Institution, said Mr. Obama’s proposal was contrary to the path his administration apparently hoped to take when he took office. But that was before he and his advisers had access to detailed information on the detainees, said Mr. Wittes, who in a book last year argued for an indefinite detention system.

“This is the guy who has sworn an oath to protect the country,” he said, “and if you look at the question of how many people can you try and how many people are you terrified to release, you have to have some kind of detention authority.”

Civil liberties lawyers say American criminal laws are written broadly enough to make it relatively easy to convict terrorism suspects. They say Mr. Obama has not made the case persuasively that there is a worrisome category of detainees who are too dangerous to release but who cannot be convicted. The reason to have a criminal justice system at all, they say, is to trust it to decide who is guilty and who is not.

“If they cannot be convicted, then you release them,” said Jameel Jaffer, a lawyer at the American Civil Liberties Union. “That’s what it means to have a justice system.”