Tuesday, October 30, 2012

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.

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."

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.

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.


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.

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.

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