Yes, the NDAA really does authorize indefinite detention for U.S. citizens

We noted here the news that — contrary to words from his actual mouth — President Obama would in fact sign the NDAA (National Defense Authorization Act, the so-called “Indefinite Detention” bill) into law, and not veto it as once promised.

The clickage on our report was huge — people are obviously awake to just how big a deal, how dangerous to civil liberties, this law would be.

As a result, Obama’s fierce defenders have started spreading myths about the NDAA in an obvious attempt to calm (and muddy) the roiling pre-election waters.

I therefore offer lawyer Glenn Greenwald’s analysis of the bill itself. In a post entitled “Three myths about the detention bill” Greenwald refutes the pro-Obama assertions. His introduction states the situation precisely (my paragraphing, emphasis in original):

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 [Dec 16] 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 [Dec 15] 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)[.]

He then lists the three myths, along with his refutation. I invite you to read this excellently argued post. I present below just the myths themselves and the skeleton of Greenwald’s refutation. If you find yourself in conversation with one of the aforementioned Obama Fierce Defenders, here’s your reply:

Myth # 1: This bill does not codify indefinite detention

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.” … It simply cannot be any clearer within the confines of the English language that this bill codifies the power of indefinite detention.

Myth #2: The bill does not expand the scope of the War on Terror as defined by the 2001 AUMF [Authorization to Use Military Force]

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 … (see what Law Professor Jonathan Hafetz told me in an interview last week about the dangers of those terms).

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

There are two separate indefinite military detention provisions in this bill. The first, Section 1021, … 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”[.] …

But the next section, Section 1022, … specifically deals with a smaller category of people … [T]he definition of who it covers does not exclude U.S. citizens or include any requirement of foreignness.

Greenwald notes, as further evidence that the bill doesn’t exempt American citizens or those captured in the U.S., that “amendments offered by Sen. Feinstein providing expressly for those exemptions were rejected.” That’s telling; proof in my book as to how this deliberately vague section would be argued in court.

Yet another turning point in a rolling coup replete with turning points (I’ll detail those sometime, in a much longer post.)

Barack Obama — Crossing Dem lines of conscience, Dem after Dem after Dem. Has your line been crossed yet?

Another stunning pre-election performance by Team Smarter Than You. (Note to Team: Chess is played in two dimensions — and mainly forward and back. If you aren’t doing one, you’re doing the other. Even I get that.)

[Update: Fixed chess ref; thanks.]

GP


Gaius Publius is a professional writer living on the West Coast of the United States. Click here for more. Follow him on Twitter @Gaius_Publius and Facebook.

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