The NDAA – A Dangerous Precedent Even With the Signing Statement

Tuesday, January 3rd, 2012

(Editor’s Note – this is an updated version of our previous post on the NDAA, which we have revised to incorporate a discussion of President Obama’s statement accompanying his signing of that legislation)

As we noted recently, over the next few weeks Winning Progressive will be featuring a series of posts regarding the erosion of civil liberties in the US. Today’s post focuses on the National Defense Authorization Act of 2012 (“NDAA”) and its disturbing provisions regarding indefinite detention of individuals under the guise of the “war on terror.” The NDAA has been the subject of much debate in the progressive blogosphere, with some seeing it as simply affirming existing law and others seeing it as mandating military detention of US citizens suspected of ties to terrorism. Neither position is fully accurate, but our overall read is that the NDAA detention provisions set a dangerous precedent that should have been vetoed by President Obama. While President Obama’s signing statement, issued on December 31, 2011, confirms that the Obama Administration is not going to use the NDAA to indefinitely detain US citizens, that statement does nothing to limit the ability of future Administrations to use the detention authority provided in the NDAA. And that is what worries us.

Leaving aside for now the issue of Guantanamo, which Congress has stymied President Obama’s efforts to close, the NDAA includes two sections that address detention. Addressing the second section first, in Section 1022, the NDAA mandates military detention for individuals who are members of “Al-Qaeda or an associated force” and that “participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.” (NDAA Sec. 1022(a)(2)). US citizens, however, are expressly exempted from that requirement. (NDAA Section 1022(b)(1)). As such, contrary to what some critics have said, the NDAA does NOT mandate military detention of US citizens. In addition, Section 1022 allows the President to waive the required military detention upon certifying that “such a waiver is in the national security interests of the United States.” (NDAA Section 1022(a)(4)). As a supporter of civil liberties, Winning Progressive finds disturbing the prospect of indefinite military detention of any person arrested on US soil, as we firmly believe that a government should be required to prove that a person is guilty of a crime subject to the protections offered by the Constitution and Bill of Rights. However, the specific exemption for US citizens means that Section 1022 is not the absolute civil liberties nightmare that some have made it out to be.

The same cannot be said of Section 1021, in which Congress “affirms” that the powers granted to the President under the 2001 Authorization for Use of Military Force (“AUMF”) includes the power of the military to “detain covered persons.” (NDAA Section 1021(a)). In defining “covered persons” who can be detained, the NDAA identifies people involved in the Sept. 11, 2001 attacks using the same language as was used in the AUMF. (NDAA Section 1021(b)(1)). The NDAA, however, then proceeds to identify as a second category of persons:

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, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

(NDAA Section 1021(b)(2)). This language is quite problematic as the terms “substantially supported,” “belligerent act” and “directly supported such hostilities in aid of” can be read broadly to cover individuals who have, at most, a very tangential link to “al-Qaeda, the Taliban, or associated forces.”

The broadness of the language in Section 1021(b)(2) is especially problematic given that the NDAA then proceeds to allow for military detention without trial. In particular, the NDAA identifies four possible dispositions of detained persons: (1) detention “without trial until the end of the hostilities authorized by the” AUMF, (2) trial by a military commission, (3) transfer for trial by a court, or (4) transfer to any other foreign country or entity. (NDAA Section 1021(c)). Detention without trial or transfer to another country means that the basis for that detention would never be tested, and even trial by a military commission would not provide anything close to the type of challenge to one’s detention is required by the Constitution and the Bill of Rights. In other words, these provisions combined would allow a President to detain virtually anyone without ever having the basis for that detention reviewed, without the government being required to prove that person’s guilt, and without the person who was detained having an opportunity to confront the evidence against them. That is a radical departure from the constitutional norms that are supposed to govern the determinations of guilt and innocence in our nation, and any supporter of civil liberties should find those provisions abhorrent.

Section 1021 is tempered somewhat by an 11th hour amendment offered by Senator Diane Feinstein (D-CA) that provides:

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.

(NDAA Section 1021(e)). What that provision does, essentially, is to kick the question of whether the military should be able to indefinitely detain US citizens to the federal courts. But that provides little solace, as the US Supreme Court in the Hamdi case has already ruled that US citizens arrested oversees as part of the “war on terror” can be indefinitely detained, and the U.S. Court of Appeals for the Fourth Circuit held the same with regards to US citizens arrested in the US in the Padilla case. While the Padilla case never reached the Supreme Court because the W. Bush Administration transferred Padilla to the judicial system, we here at Winning Progressive do not feel very secure leaving the question of indefinite military detention of US citizens up to a future Supreme Court, especially after Congress has authorized such detentions and the President signed such authorization (even with reservations).

Our confidence on this point is further eroded by the fact that various efforts to remove the provisions authorizing indefinite detention of US citizens were defeated by the US Senate. For example, Sen. Feinstein offered an amendment to make clear that only US citizens arrested overseas could be indefinitely detained by the military. That amendment failed 45-55. Senator Rand Paul, joined by five Democratic Senators (Leahy, Wyden, Merkley, Gillibrand, and Manchin), proposed an amendment to repeal the AUMF. That amendment failed 30-67. And Senator Mark Udall (D-CO), joined by six Democratic Senators (Durbin, Leahy, Webb, Feinstein, Wyden, and Franken) and Senator Rand Paul (R-KY), proposed an amendment to remove the detention provisions from the NDAA. That amendment failed 38-60. That vote total, however, does suggest that the Senate may not have been able to override a veto had the President issued one.

Congressional authorization for the President to have the military indefinitely detain US citizens is a dangerous blow to our Constitutional rights. In signing the NDAA, President Obama did express “serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists.” In his signing statement, President Obama clarified his interpretation of, and expressed his reservations regarding, portions of the NDAA. Most relevant to the detention of American citizens issue, the signing statement explained with regards to Section 1021 of the NDAA that:

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.

This is certainly a helpful and reassuring statement for as long as the Obama Administration is in the White House. But the Administration is simply wrong when it claims that Section 1021 does nothing more than confirm existing authorities. In particular, Section 1021 represents the first time that Congress has clearly stated that it supports the President having the authority to indefinitely detain US citizens, and such statement could impact how the Supreme Court would rule on such detention.

More importantly, President Obama’s signing statement is not binding on anyone including future Administrations. And future Administrations are the biggest concern here. We have little doubt that President Obama does not intend to have the military indefinitely detain US citizens without trail, but Congressional authorization of such power is a ticking time bomb just waiting for a future reactionary President to use it. If you think the NDAA is not problematic in the hands of President Obama, ask yourself whether you would feel comfortable with President Romney, Santorum, or Gingrich having that same authority. If not, call the White House – 202-456-1111 – and let them know what you think of the detention provisions in the NDAA, and then support the organizations listed below that are fighting to protect our civil liberties.

* ACLU – the flagship organization defending civil liberties in the US since 1920 - BlogFacebookLocal Affiliates

* Bill of Rights Defense Committee – an organization formed in 2001 to defend the Bill of Rights against over-broad national security and anti-terrorism efforts – BlogFacebook - Take Action

* Center for Constitutional Rights – a legal and educational advocacy organization that seeks to protect and promote the rights guaranteed by the US Constitution and the Universal Declaration of Human Rights – Get InvolvedFacebook

Civil Liberties Part 1 – Introduction to an Obama Disappointment

Monday, December 26th, 2011

As readers of this blog know, Winning Progressive supports our President both because he has done much to advance the progressive cause and because the Republican alternative would be an absolute disaster for our country, economy, and people.  That being said, there are areas where we have been seriously disappointed with the President, the most significant of which is in the area of civil liberties.  Unfortunately, especially when purported national security issues are involved, the Obama Administration has not only largely failed to fight for progressive values with regards to civil liberties but has on a number of occasions specifically approved and even expanded dangerous policies enacted by the W. Bush Administration.

Over the next few weeks, we plan to cover four areas regarding civil liberties where the Obama Administration has inexcusably fallen short.  Tomorrow’s post will focus on indefinite military detention and the National Defense Authorization Act of 2012 (“NDAA”).  Future posts will discuss rendition of suspects to other countries, the expansion of the Transportation Security Administration, and the militarization of police forces throughout the country.

In terms of civil liberties, our focus here is on the core protections offered by the US Constitution and Bill of Rights, including the rights of individuals to be free from unwarranted searches and seizures, the fundamental assumption that people are innocent until proven guilty beyond a reasonable doubt, and the entitlement of suspects to a fair trial before a neutral decision maker at which the suspect is represented by counsel and is able to confront evidence against them.   Winning Progressive understands the serious political hurdles facing this or any other Administration in protecting these rights, especially when they are (wrongly) perceived to conflict with national security.  And we have no doubt that the GOP would be even worse on civil liberties.  However, given how important civil liberties are to who we are as a people, and how easy it is to slide down the slippery slope of even further eroded civil liberties, we expect any President, and especially a largely progressive Democratic President who used to be a Constitutional law professor, to defend the civil liberties that are at the core of our Constitutional and criminal justice systems.  The Obama Administration’s failure to do so is a major disappointment that simply cannot be brushed aside.

As an introduction to this series, we’d like to provide some resources for how you can get involved in helping to stop the erosion of our civil liberties and restore the Constitutional values that has made our nation great.  Very few issues are more important than this one.

* ACLU – the flagship organization defending civil liberties in the US since 1920 - BlogFacebookLocal Affiliates

* Bill of Rights Defense Committee – an organization formed in 2001 to defend the Bill of Rights against over-broad national security and anti-terrorism efforts – BlogFacebook - Take Action

* Center for Constitutional Rights – a legal and educational advocacy organization that seeks to protect and promote the rights guaranteed by the US Constitution and the Universal Declaration of Human Rights – Get InvolvedFacebook

Weekend Reading List

Sunday, December 18th, 2011

For this weekend’s reading list, we have articles on how far off-base the GOP is, how militarization of the police has been going on for years in African American neighborhoods, an overview of the fundamental US economic changes that need to be addressed, and a thorough identification of all of the hurdles that the poor face in getting ahead.

If you have any feedback on these articles, or would like to recommend an article for next weekend’s reading list, please let us know at Winning Progressive’s Facebook page.

The GOP’s Crackpot Agenda – An accounting of how pro-wealthy elite, anti-environmental, anti-worker, and anti-government the GOP candidates running for President are.

From War on Drugs to War on Occupy – A report documenting how the increasingly militarized police forces who evicted Occupy Wall Street are nothing new, as such militarized force has been used in African American communities for decades.

The Book of Jobs – an essay explaining how structural changes in our economy from industrial to service-based have weakened our economy by shrinking the availability of secure middle class jobs.

If I Were a Poor Black Kid -an essay detailing the numerous hurdles to success that poor children of any race in the US face.  This post was in response to the absolutely ridiculous essay of the same name that was published in Forbes magazine earlier.

Weekend Reading List

Sunday, December 11th, 2011

For this weekend’s reading list we have articles on racial disparities in Presidential pardons, policy primers on state and federal spending, how economic inequality harms economic growth, the backlash against a Medal of Honor recipient who questioned military contractors selling technology to Pakistan, and the numerous problems with the killing of US citizen Anwar Al-Awlaki based on secret evidence.

If you have any feedback on these articles, or would like to recommend an article for next weekend’s reading list, please let us know at Winning Progressive’s Facebook page.

Presidential Pardons Heavily Favor Whites - a ProPublica investigation of Presidential pardons during the W. Bush Administration finds that whites are four times more likely to get pardoned than members of other racial groups, even when factors such as the type of crime or the length of the sentence are factored in.   The rest of ProPublica’s series on Presidential pardons can be found here.

Policy Basics: Where Do Our Federal Tax Dollars Go? – a great primer on how approximately 60% of federal spending goes towards military, Social Security, Medicare, and Medicaid, and 14% goes towards safety net programs.  A similar primer on state spending details how more than 50% of state spending goes towards education and Medicaid, with only 1% directed towards public assistance. 

The 1 Percent Club’s Misguided Protectors - an essay explaining how high levels of economic inequality in a society harms everyone by stunting economic growth.    

The Case of Dakota Meyer - how the first living Marine to receive the Medal of Honor since the Vietnam War has allegedly been blacklisted from future employment with military contractors after raising concerns about their sales of military technology to Pakistan.

Killing Our Citizens Without Trial - the disturbing nature of the Obama Administration’s secret decision to kill a US citizen not on the battlefield in the “war on terror” based on evidence in a memo that remains secret.

Police Needlessly Kill Drug Addict in Utah – Another Day in the Failed War on Drugs

Wednesday, January 19th, 2011

We here at Winning Progressive have long believed that the war on drugs is a horrible nightmare that has done little to stem drug use in America while wasting vast resources on incarceration, leading to problematic curbs of our civil liberties, and having a horribly destructive impact on African Americans and other people of color.   This is ground that has been very well covered by others, so for the basics on the absurdity of the war on drugs, we’d recommend reading the following:

Smoke and Horrors, by New York Times columnist Charles M. Blow, which focuses on the racial disparities in arrests and sentencing for marijuana possession

War on Drugs: $1 Trillion Wasted  – Nothing Accomplished, a blog post by Ted McLaughlin at Best of the Blogs about how we’ve spent more than $1 trillion on the war on drugs over the past 40 years, but have only made the drug problem worse, not better

Let’s Stop Both Wars – by redwagon at Booman Tribune – an overview of the impacts of the drug war on African American families

What compelled us to write about the war on drugs right now is this truly sickening video of a police raid on the house of Todd Blair, an apparent meth addict in Utah who was believed to have a small amount of drugs in his possession.  In essence, 10 heavily armed police officers busted down the door to Mr. Blair’s house in the middle of the night, hearing someone break in Mr. Blair came out of his bedroom brandishing a golf club, and the police immediately and fatally shot him three times.  (Warning, the video is quite disturbing):

This video is a graphic example of how militarized our police forces have become and how we are increasingly giving up basic civil liberties in the name of fighting an unsuccessful war against drugs.  There is no dispute that Mr. Blair was a drug addict who had a history of arrests and convictions for drug possession.  But there is little to no evidence that he was a major or dangerous drug dealer (which is what led the police to have a no-knock warrant that allows them to enter a person’s house without knocking), that he had committed any violent crime, or that police could not have subdued Mr. Blair without fatally shooting him three times.

There is no dispute that drug addiction is a serious problem and there is no perfect solution to the drug issue.  But it also seems indisputable that the war on drugs has been an economically and socially costly mistake.  A new approach is needed, involving decriminalization combined with increased funding for drug addiction treatment and education to keep people from becoming addicted to begin with.  Such an approach has been largely successful in Portugal over the past nine years, and holds great promise for better outcomes here in the U.S.

The main hurdle to stopping the drug war is the fear that politicians have of a great public backlash from appearing “soft on crime.”  Therefore, it is critical that we make our voices heard in favor of a more sensible approach to drugs that focuses on decriminalization, treatment, and education rather than police and prisons.  If you’d like your voice to be heard on this issue, write a letter to your local newspaper editor about the Todd Blair case or other problems with the war on drugs.  Here are links for submitting letters to the editor for national papers, and to newspapers in Connecticut, DelawareIllinois, Maine, Massachusetts, Michigan, New Hampshire, Ohio, Pennsylvania, Rhode Island, Vermont, and Wisconsin.

Weekend Reading List

Saturday, January 1st, 2011

Happy New Year!  For this, our first weekend reading list of 2011, we have essays on the impracticality of libertarianism, the end of Kodachrome, the vast surveillance network that is gathering information on Americans, the vanishing glaciers, and the challenges faced by the White House.

If you’d like to share your thoughts about any of the following, or recommend something for next weekend’s reading list, send us an email.

The Trouble With Liberty – An essay by Christopher Beam in New York Magazine of libertarianism and how it would not work in the real world.   Includes this classic paragraph about what would happen if we tried to put libertarian principles into action:

The result wouldn’t be a city on a hill. It would be a port town in Somalia. In a world of scarce resources, everyone pursuing their own self-interest would yield not Atlas Shrugged but Lord of the Flies. And even if you did somehow achieve Libertopia, you’d be surrounded by assholes.

For Kodachrome Fans, Road Ends at Photo Lab in Kansas – New York Times article about the final days of the last processors of Kodachrome, which was the first successful color film that started seventy five years ago.

Monitoring America – A disturbing look in the Washington Post at the vast surveillance and information gathering network that has been built since 9/11 to compile informati0n on Americans.  This is part of the Post’s investigative series about the expansion of the national security state entitled Top Secret America.

The Vanishing Ice Sheets – An article in Rolling Stone magazine by Ben Wallace-Wells about the how rapidly glaciers are melting because of climate change, and what that could mean for sea levels.

Washington, We Have a Problem – an inside view from Todd Purdum at Vanity Fair of the media, lobbyist, congressional paralysis, and bureaucratic challenges faced by the White House.