How responsible is the president for the indefinite detention law?

Each year Congress is required to pass the National Defense Authorization Act (NDAA), which provides the funds for our military and also spells out the authority of the president when it comes to war powers, detentions, interrogations, etc.

I am not a lawyer, but I am trying to make sense of what this all means. Back in grade school I remember learning that the Constitution protects the rights of US citizens (and really everyone) from things like warrant-less searches and detention without trial. The most recent years NDAA's seem to throw this concept out the window.

What follows is my mental machinations about what this means for the upcoming election. Is Obama evil for having signed this law and implementing it's statutes?

Granted, my reasoning will seem like a blatant apology for President Obama, but I'm open to clarification and discussion.

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Here is the roll call vote on 2012 NDAA:

Senate 88 Yeas, 12 Nays

House 299 Yeas, 120 Nays

Broadly bipartisan passage in both houses in an era when NOTHING has broad bipartisan support. Why is that?

Now let's say the president vetoed this law, thereby limiting his power to incarcerate suspected war criminals...and the inevitable happens, ie, another attack on US assets occurs.

You know another attack will occur because that's the world in which we live.

What is the first thing that will be said when an attack occurs? Answer: The GOP will scream: "If the president had not ignored his role as protector of the homeland then this would not have happened."

The Congress has basically said, "We are afraid of having any more events occur and therefore we have willingly given up the rights of our constituents, the American people."

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Some background

One of the first acts of Obama's presidency was to attempt to try Khalid Sheik Muhammad in federal court in 2009, but this was met with unrelenting opposition to the rule of law.

What is the president to do? 

Khalid Sheik Muhammad, the alleged 9-11 mastermind, was arrested in 2001 and held without trial under the previous administration. Upon taking office, Obama's DOJ under Holder set up a federal trial in New York criminal court which was met with an unrelenting shitstorm of opposition by Republicans and Fox News who shrieked that such a trial would put New Yorkers at risk and the expense for security was too great. Muhammad was then transported to Gitmo and Congress promptly passed 2011 NDAA that specifically prohibited transfer of any prisoners from Gitmo to US soil, thereby preventing any transfer of KSM.

From April 2011 ABCNews:

Attorney General Eric Holder today placed the blame squarely on Congress for creating conditions where the Department of Justice cannot try them in a federal court, saying their decision would gravely impact U.S. national security and counterterrorism efforts.

They "tied our hands in a away that could have serious ramifications," he said today. "In reality, I know this case in a way that members of Congress do not. Do I know better than them? Yes."

Mohammed was to have been tried in New York City, but city officials strongly objected to the move and Congress refused to appropriate funds to house Guantanamo inmates on mainland United States and to provide funds for a trial of extraordinary expense.

Holder said he stands by his decision to try the terror suspects in U.S. federal courts, but was forced to resume the military commission because realistically, "those restrictions are unlikely to be overturned in the near future." He added that the Obama administration still intends to eventually close the detainee center altogether, as the president had announced after becoming president.

Obama, both as candidate and as president, strongly objected to the military tribunals set up by the Bush administration. In 2006, he said their structure was "poorly thought out" and immediately upon taking office, he signed an executive order to close the detainee center at Guantanamo Bay. He later said that the tribunals "failed to establish a legitimate legal framework and undermined our capability to ensure swift and certain justice."

Let's say you are the president. What are you going to do with KSM and others? Let them go?

What are you going to do when the US military, the CIA or the FBI finds a suspected terrorist? Let them go?

Congress has made it clear that trying them on US soil is near impossible, and the KSM trial is ongoing in Gitmo as I type.

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NDAA 2012

Okay, so the 2012 NDAA has a twist: a clause that provides for detention, not just of foreign nationals but, of US citizens as well.

I don't have an answer why this is so, but obviously Congress is okay with it since they wrote and passed the law, and I honestly don't think Obama could have vetoed it, so this leaves the courts to decide, and the case is in fact winding its way through the courts now.  Civil libertarians are incensed; namely, Chris Hedges is the challenger of this provision in court. From Truthout :

Government lawyers asked late Friday for an immediate stay of Forrest's ban on the use of the military in domestic policing and on the empowering of the government to strip U.S. citizens of due process. The request for a stay was an attempt by the government to get the judge, pending appeal to a higher court, to grant it the right to continue to use the law. Forrest swiftly rejected the stay, setting in motion a fast-paced appeal to the 2nd U.S. Circuit Court of Appeals and possibly, if her ruling is upheld there, to the Supreme Court of the United States. The Justice Department sent a letter to Forrest and the 2nd Circuit late Friday night informing them that at 9 a.m. Monday the Obama administration would ask the 2nd Circuit for an emergency stay that would lift Forrest's injunction.

In effect, this is on a fast track to the SCOTUS and a decision will be made one way or another. 

If that section of the NDAA is struck down as unconstitutional then the DOJ will be forced to revise its practices. This is how a free and open society solves these issues.

And if there is some negative consequence, ie, a strategic attack on the USA by a suspected terrorist who is released due to the court decision, then the president can say that he was only following the law and couldn't legally hold the suspect(s). 

On the other hand, if the SCOTUS upholds the law then the lefties have absolutely no gripe with the president. The checks and balances have spoken.

My guess is that Obama welcomes this court challenge and has purposely fast-tracked it so that a decision can be made before Romney might become president, thereby putting it down in writing that such detentions are unconstitutional. If Obama had vetoed the 2012 NDAA you could bet that the same provision would find it's way into the 2013 NDAA, so let's have the SCOTUS settle this once and for all.

The most cynical side of me says that the GOP supported the indefinite detention section of the 2012 NDAA for the express purpose of setting off the left-wing against the president thereby depriving him of his voting base. I believe they are just that politically decrepit. 

To wit, Matt Stoller, a former Democratic operative and Washington staffer, has penned a scathing opinion against Obama and is calling for a third party vote in protest.  

Somewhere Karl Rove is smiling.

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As an aside, the right-wing press is making a case for Obama's negligence for having not used drones on the crowd outside the Benghazi consulate on 9-11-12.  Imagine if the US had used drones and killed women and kids protesting in the streets (remember that many of the facts were not known when the attack was occurring), what would be the outcry?  

This president cannot win, it's either too much force, or not enough.  I see a president under siege form all sides. Every time an attack occurs, and note that there were more embassy and consulate attacks per year under Bush's watch, Obama is wrong no matter what he has done.  

The left wing is at his throat about civil liberties and drones, and the right is at his throat about being an apologist for terrorists and terror suspects.

It's unrelenting.
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Okay, I plead guilty of being an unapologetic shill for the president. I honestly don't see any point at which he could win these arguments. If he had vetoed the 2012 NDAA then he would take the heat for every malefactor that climbs on board a plane with C4 up his ass. If he signs the 2012 NDAA, with its indefinite detention clause, then he is abridging the rights of US citizens.

Boyce Avenue covers Pink's Perfect

"Stab yourself in the Eye with a Pencil!!!"

Rarely is political satire so perfect.

Maybe these religionists should go back to to the Socratic notion, adopted by Aquinas, of ensoulment, thereby allowing the woman an option in the first trimester while also giving conservative politicians religious cover. Odd that the only solution to the Gordian Knot crafted by these troglodytic lawmakers is to go back to the Middle Ages.

(h/t Bob Cesca and Jay)

Jesus 'n' Mo on Metaphor

(h/t WEIT and JesusandMo)

Benghazi and "acts of terror"

From tonight's debate:



From the President's 9/12 Rose Garden remarks (the morning after the attacks):

No acts of terror will ever shake the resolve of this great nation, alter that character, or eclipse the light of the values that we stand for.  Today we mourn four more Americans who represent the very best of the United States of America.  We will not waver in our commitment to see that justice is done for this terrible act.  And make no mistake, justice will be done.

QOTD

Quote of the Day:

"No, do not carry me."
-Derek Jeter, Yankees Shortstop, being helped 
from the field with a fractured ankle. 

 The best of a generation (Note: he left with his glove on)

Ryan's Voucher system could work, so do it now

Paul Ryan in 2009:



...and 2010:



Which is fine, make it a voucher system and control federal costs for these programs from the bottom up.  Ugly as it may be it could work. I ask this: if this is such a promising solution then why wait 10 years to do it?   Do it now.

Instead Paul Ryan's solution to the rising costs of Medicare, the biggest driver of federal health care costs and deficit spending, is to do NOTHING for TEN years. Nothing. He will allow the system to grow annually at 8%, which means that Medicare will more than double in cost, and perhaps triple when you account for the growing population, and then in one fell swoop cut expenditures to $8,000 per person by handing out vouchers.

To use a tortured cliche, this is the ultimate scenario of kicking the can down the road...and it's political pandering.

As seemingly unpopular as Obamacare may be, it is the only rational way to reform health care. Nobody else has broached a plan even remotely more feasible since Hillarycare in 1993, which was summarily executed at conception. Does Obama's Affordable care Act contain a lot of regulation? Yes. Will it dramatically cut health care expenditures? No, but the cost curve can be bent downward.  Will it work? I don't know, but I do know that doing nothing for ten years is insane.

Both Ryan and Romney have a fundamental problem with mandating individuals to purchase health insurance. So do I. But I have an equally strong aversion to mandating health care providers to see patients without ability or willingness to pay. So let's allow everyone freedom. Nobody has to buy insurance, nobody has to pay for health care, and nobody is required to provide it either.  Win-win-win.  The problem with this approach, of course, is that the Republicans are too squeamish to repeal EMTALA-- the law that mandates emergency care regardless of payment-- and too squeamish to control Medicare costs.

They have to do the heavy lifting or get out of the weight room.
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Here's how it'll work: Frank and Zelda are healthy when they turn 65 and get their $8,000 per year voucher and buy health insurance. Frank has chest pain diagnosed as unstable angina and a mild heart attack when he's 66. His premiums go up and they dig into their savings to make up the difference.

The following year, Zelda is diagnosed with breast cancer, undergoes a mastectomy, radiation therapy and chemotherapy. Their premiums double but they have enough savings to cover it for a while. The years go on and Frank develops vascular dementia and has some cognitive difficulties. Zelda has never managed their finances and has always deferred to Frank for those decisions.

At age 72 Frank decides that they cannot afford health insurance anymore and stops paying the premiums. Their kids are not involved and Frank does not include them in the decision. Six months later Zelda has a recurrence of the breast cancer and the doctor recommends placement of a port-a-cath and six cycles of chemotherapy.

Upon reviewing Zelda's insurance coverage, the oncologist's and surgeon's offices notice that there is no active policy and Frank has stated that they do not have enough savings to pay the several thousands of dollars in initial costs. Both physicians are willing to donate their services, but costs will be staggering for the operating room, the chemotherapy, nursing care, laboratory studies, xrays, and CT scans.

Social service is consulted and paperwork is started to see if Zelda qualifies for Medicaid. She does qualify, but her assets-- their house and IRA account-- must be spent down by a certain percentage to cover some of the medical costs. During this application, Zelda's care is delayed for two weeks and the surgeon will not get paid for another 90 days.

Frank has become distraught that his wife has a terminal illness, their assets are being spent, and he has guilt that his poor decision-making has worsened this calamity. His chest pain recurs. Frank neglects to seek medical attention because of his lack of insurance, the lack of available funds and his shame for his part in the situation.

Two weeks later, Frank has had a massive myocardial infarction and is admitted to the ICU. While Zelda keeps vigil in the ICU she neglects two cycles of her chemotherapy. Three weeks later she is diagnosed with lung metastases. 

If you think this scenario is far-fetched, then you know nothing about delivering health care.

MY COMMENT: Vouchers seem like a good idea, but in practice I cannot fathom how seniors would be able to navigate the health insurance morass with any skill. Evening news shows would be chock full of commercials for Vouchercare with former Congressmen and Paul Ryan's mother touting these private insurance products. 

The final cost to taxpayers will be increased when you factor in all the "free" care and the need for Medicaid to mop up after all the uninsured seniors floating around. And the stress put on families would be immense. No modern industrialized nation treats seniors in this manner, and my hunch is that neither Romney nor Ryan would be in favor of this plan when it came to it's implementation. If it were a panacea, they would want it now.

Mr Romney's Neighborhood

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Preventing Unintended Pregnancies by Providing No-Cost Contraception

Significant reductions in both teen pregnancies and abortion were accomplished by providing comprehensive contraception counseling and the reversible birth control method of choice.

From Obstetrics and Gynecology (the Green Journal):

OBJECTIVE: To promote the use of long-acting reversible contraceptive (LARC) methods (intrauterine devices [IUDs] and implants) and provide contraception at no cost to a large cohort of participants in an effort to reduce unintended pregnancies in our region.

METHOD: We enrolled 9,256 adolescents and women at risk for unintended pregnancy into the Contraceptive CHOICE Project, a prospective cohort study of adolescents and women desiring reversible contraceptive methods. Participants were recruited from the two abortion facilities in the St. Louis region and through provider referral, advertisements, and word of mouth. Contraceptive counseling included all reversible methods but emphasized the superior effectiveness of LARC methods (IUDs and implants). All participants received the reversible contraceptive method of their choice at no cost. We analyzed abortion rates, the percentage of abortions that were repeat abortions, and teenage births.

RESULTS: We observed a significant reduction in the percentage of abortions that were repeat abortions in the St. Louis region compared with Kansas City and nonmetropolitan Missouri (P<.001). Abortion rates in the CHOICE cohort were less than half the regional and national rates (P<.001). The rate of teenage birth within the CHOICE cohort was 6.3 per 1,000, compared with the U.S. rate of 34.3 per 1,000.

CONCLUSION: We noted a clinically and statistically significant reduction in abortion rates, repeat abortions, and teenage birth rates. Unintended pregnancies may be reduced by providing no-cost contraception and promoting the most effective contraceptive methods.

MY COMMENT: D'uh. 

Western societies that have the lowest rates of unintended teen pregnancies all have comprehensive health care and contraceptive counseling that begins at an early age. The ridiculously obvious implication for the United States is that all the moralizing and religious bullshit in the world doesn't lower abortion rates one bit, but education and birth control do.

As an example, Roman Catholics are destined to go to hell yet they abort fetuses and use birth control at the exact same rate as the general US population. Abortion cannot be mandated away neither by law nor even eternal damnation. 

Obamacare  holds the greatest promise for our nation attaining more reasonable rates of unintended pregnancies that cripple young people financially and medically.   

Note that this study used comprehensive counseling and did not just hand out birth control pills.

Nobel Prize given for advances in adult stem cell science

Reuters:

As far back as 1962 Gurdon became the first scientist to clone an animal, making a healthy tadpole from the egg of a frog with DNA from another tadpole's intestinal cell. That showed that developed cells carry the information to make every cell in the body - decades before other scientists made world headlines by cloning the first mammal from adult DNA, Dolly the sheep.

More than 40 years later, Yamanaka produced mouse stem cells from adult mouse skin cells by inserting a small number of genes. His breakthrough effectively showed that the development that takes place in adult tissue could be reversed, turning adult tissue back into cells that behave like embryos.

Stem cells created from adult tissue are known as "induced pluripotency stem cells", or iPS cells. Because patients may one day be treated with stem cells from their own tissue, their bodies might be less likely to reject them.

"The eventual aim is to provide replacement cells of all kinds," Gurdon's institute explains on its website.

"We would like to be able to find a way of obtaining spare heart or brain cells from skin or blood cells. The important point is that the replacement cells need to be from the same individual, to avoid problems of rejection and hence of the need for immunosuppression."

MY COMMENT: The implication of this technology is that the ethical squeamishness of using embryonic stem cells is mitigated, and, in fact, autologous donor cells (same person) also obviates the need for immunosuppression and therefore may be superior in practice.