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The NDAA Explained: Part One in a Two-Part Series of Columns on the National Defense Authorization Act

Passed by the House and Senate last week, the National Defense Authorization Act (NDAA) now awaits the president’s signature.  Because of its controversial provisions on indefinite detention, President Obama had threatened to veto the bill back in May, when the House passed one version of it, and again in November, when the Senate passed another, somewhat different version of it.

But last week, after the House and Senate reconciled their two versions of the bill, the president lifted his veto threat.  His press secretary explained in a written statement that the revised bill was considered acceptable because problematic provisions had been removed, and because “the most recent changes give the President additional discretion in determining how the law will be implemented, consistent with our values and the rule of law.”

Numerous human rights advocates, civil libertarians, and members of Congress disagree. Human Rights Watch said that President Obama’s decision not to veto the bill “does enormous damage to the rule of law both in the US and abroad.”  The ACLU said, “if President Obama signs this bill, it will damage both his legacy and American’s reputation for upholding the rule of law.” Representative Jerrold Nadler, who voted against the bill, said that it presents a “momentous challenge to one of the founding principles of the United States—that no person may be deprived of his liberty without due process of law.”

The bill’s congressional supporters reacted with outrage to such criticism, calling it false and misleading. “Rarely in my time have I seen legislation so consistently misunderstood and misrepresented as these detainee provisions,” complained Senator John McCain, one of the bill’s main drafters.

So what do the detention provisions of the NDAA actually say, and who, in particular, do they affect?

Background to the NDAA

To fully understand the NDAA’s provisions on detention, a brief review of recent history is needed.

During the Bush years, despite massive public and press attention to the administration’s detention policies, Congress remained largely out of the picture. While the USA PATRIOT Act contained some provisions on detention, they were never put to use; the Bush administration preferred to create a detention system that was, it assumed, largely free of legal constraints and judicial oversight.

The military prison at Guantanamo and the CIA’s secret prison system were therefore created by executive fiat, without congressional input or restriction. When cases challenging Guantanamo and the military detention of US citizens on US soil got to court, however, the administration claimed that the Authorization for Use of Military Force (AUMF), a joint resolution passed by Congress in September 2001, gave congressional approval for those detentions.

The AUMF, which authorizes the president to use “necessary and appropriate force” against those whom he determined “planned, authorized, committed or aided” the September 11 attacks, or who harbored such persons or groups, is silent on the issue of detention. A plurality of the US Supreme Court agreed with the administration, nonetheless, that the power to detain is necessarily implied by the power to use military force.

Hamdi v. Rumsfeld, the 2004 ruling that upheld the US government’s detention power, left many questions unanswered.  Because it involved a prisoner who was captured during the armed conflict in Afghanistan, it did not raise the Bush administration’s broad claims of a “global war on terror,” in which terrorism suspects far from any battlefield were treated like enemy soldiers.  It did not even give much guidance regarding the scope of the armed conflict, geographic or temporal, although it included, in dicta, a skeptical reference to the administration’s broadest claims.

Congress maintained its hands-off approach to detention during the entirety of President Bush’s two terms in office, even as it legislated on closely related issues like minimum standards of humane treatment and the rules for military commission proceedings.  When Obama took office in January 2009, however, Congress’s attitude changed.  Many members of Congress reacted negatively to Obama’s stated goal of closing Guantanamo, and, since that time, Congress has imposed various ever tighter restrictions on the release and transfer of detainees.

One last historical fact that is important to remember, when considering the scope of the NDAA, is that the Bush administration held two American citizens in indefinite military detention, Yaser Hamdi and Jose Padilla.  While Hamdi was picked up as a combatant in Afghanistan in 2002, Padilla was arrested in a civilian setting in Chicago that same year.  The Padilla case was never definitively adjudicated—Padilla was finally moved to the civilian justice system in 2006 — but it underscores the Bush administration’s claim of power to hold even American citizens picked up in the United States indefinitely without trial.

Subtitle D of the NDAA

What is now known as Subtitle D of the NDAA—the section on detention—made its first appearance in March of this year.  Called the Detainee Security Act in the House, and the Military Detainee Procedures Improvement Act in the Senate, the bills, introduced by Representative Buck McKeon and Senator John McCain, respectively, were meant to shift counterterrorism responsibilities from law enforcement to the military. The clear goal of the two bills was to require that suspected terrorists either be tried before military commissions or be held in indefinite detention without charge.

By May, the House version of the bill had been added to the NDAA, a $662 billion spending bill that finances the military’s annual operations.  It passed by a vote of 322-96, even as President Obama issued a veto threat, complaining that the bill improperly limited the government’s ability to fight terrorism effectively.

The Senate version of the bill, which also became part of the NDAA, passed in November on an overwhelming 93-7 vote.  Prior to the Senate’s passage of the bill, nearly every government official with responsibility over counterterrorism, from FBI head Robert Mueller to CIA director David Petraeus, had voiced concerns that the bill would have a negative impact on US counterterrorism efforts.

President Obama again issued a veto threat after the Senate vote, but as soon as the bill was modified slightly during the process of reconciling its House and Senate versions, the threat was dropped.  The final version of the bill passed both houses of Congress last week with large majorities.

Substance and Procedure in the NDAA

Subtitle D of the NDAA consists of twelve sections, covering issues that range from the military’s power over detention to technical amendments to the Military Commissions Act of 2009. Overall, the thrust of its provisions is to create a presumption of military jurisdiction over terrorism suspects, expand post-hoc congressional scrutiny of decisions over the detention and prosecution of such suspects, and effectively prevent Guantanamo from being closed.

Rather than establishing categorical rules to achieve these ends, however, the bill mostly relies on an array of procedural techniques like reporting, briefing and certification requirements.  The substantive rules that it does establish are, in large part, qualified by waiver options and other potential loopholes.

Nonetheless, nearly every provision in subtitle D is objectionable from the standpoint of human rights and civil liberties.  Among the controversial provisions are sections 1026, 1027 and 1028 of the bill, which restrict detainee transfers and releases from Guantanamo.  But while human rights organizations are worried about these limitations, their gravest concerns pertain to sections 1021 and 1022.

Sections 1021 and 1022

It is sections 1021 and 1022 that human rights organizations have in mind when they say that the NDAA enshrines indefinite detention without charge into US law.

Section 1021 purports to “affirm” the military’s authority to hold people in indefinite detention without charge pursuant to the AUMF.  Although the original House version of the bill would have stated explicitly that the US continues to be in an armed conflict with Al Qaeda, the Taliban and associated groups, the final version of the bill is somewhat more circumspect.

Section 1022 takes a subset of the persons possibly subject to military detention under section 1021—focusing essentially on persons with a stronger connection to terrorism—and creates a presumption that they will be held in military detention.

The bad news is that, as passed, sections 1021 and 1022 represent clear congressional approval of what, up to now, has been solely the executive branch’s decision to hold people in indefinite detention without charge.  (Remember that the AUMF itself was silent on detention questions.)  Giving the practice a firm and explicit statutory grounding not only makes it less vulnerable to legal challenge, it may well make the practice more permanent.

The good news, to the extent there is any, is that neither section 1021 nor section 1022 defines the “war” or the “hostilities” at issue.  They do not, in other words, explicitly embrace the “global war on terror” paradigm that equates terrorism with armed conflict and suspected terrorists with enemy soldiers.  By failing to address that question, they leave open the theoretical (if unlikely) possibility that a court could give the statute a narrow reading consistent with international law understandings of armed conflict.

Yet even this qualified success should be further qualified.  First, some of the people explicitly covered by section 1021—who, for example, harbored persons responsible for the September 11 attacks—might have no meaningful link to armed conflict.  More importantly, the focus of section 1022 is clearly terrorism, not armed conflict: it covers Al Qaeda members and members of groups that act in coordination with or under the direction of Al Qaeda.  Although the people subject to presumptive military detention under section 1022 are supposed to be a subset of the larger group of people covered by section 1021, which includes a requirement of a nexus to armed conflict under its subsection (b)(2), the thrust of the provision is still to equate armed conflict with terrorism.

Finally, it should also be noted that the set of “covered persons” subject to possible military detention, as defined in section 1021(b) of the NDAA, is far broader than the set of persons mentioned in the AUMF.  While section 1021(b)(1) relies on the wording of the AUMF, section 1021(b)(2), which defines an additional category of potential detainees, is based on the Obama administration’s definition of “unprivileged enemy belligerent” (which, itself, is just a slight tweaking of the Bush administration’s definition of “unlawful enemy combatant”).

This provision covers not only persons who are members of Al Qaeda, the Taliban and associated forces (all broad and possibly inchoate categories in themselves), but also persons who “substantially supported” those groups.  The concept of “substantial support” is potentially quite broad (what kind of support is covered, and might opinion or expression count?).  Also, support is an extremely controversial basis for law of war detention, even in traditional wars, and the issue has sparked enormous litigation at Guantanamo.

The Indefinite Detention of American Citizens

In my next column, I will address the most vexed and contested question about the scope of the NDAA’s detention provisions:  the extent to which they authorize the detention of American citizens, including citizens picked up in the United States.

For the moment, I’ll just note some recent remarks of one of the NDAA’s key drafters.  In applauding the bill’s passage last week, Senator McCain spoke of its “strong, unambiguous language that recognizes that the war on terror extends to us at home.”

Joanne MarinerJoanne Mariner, a Justia columnist, is the director of Hunter College's Human Rights Program. She is an expert on human rights, counterterrorism, and international humanitarian law. She is the author of the Human Rights Watch report, No Escape: Male Rape in U.S. Prisons. She is a co-author of the new Human Rights Watch report, “In the Name of Security: Counterterrorism Laws Worldwide since September 11.”
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100 Responses to The NDAA Explained: Part One in a Two-Part Series of Columns on the National Defense Authorization Act

  1. unbelievable. Im furious about this. I hope everyone that reads this call their local congressmen and tell him you strongly oppose NDAA provisions 1021 & 1022 due to the language that allows the indefinite detention of American civilian without trial or charge. and furthermore you also oppose SOPA & PIPA internet bills under the guise of protection really meant to limit free speech. And if you don’t believe me read some independent news on who voted for this and how much they received in contributions from lobbyists who paid out to make this happen. Keep calling, keep emailing and share share share. Many people I talk to aren’t even aware of this, sadly. Please it’s up to us.

    • Marc Iao says:

      2 years later and everything is now out in the open… but now everyone is so chemically castrated they don’t give a shit. I guess we shouldn’t feel bad this time around if millions end up exterminated since they didn’t seem to mind. Let’s wait and see.

  2. Anonymous says:

    Nazi Germany’s SS is back,  people can go missing in the middle of the night and no one ill ever see them again….

  3. Shidduchleit says:

    Mccain isan itiot He passed a bill allowing bestiality in the army and wasnt even aware of it. He is not sufficiently competent to realize the dangers of this bill

    • Guest says:

      I think it is more likely that he is counting on the dangers of this bill.

    • Ronchristianpersonal says:

      He and the other tyrant/traitors who supported this Bill, including those who stood by and valued their power and prestige too much to actually take a real stand, knew EXACTLY what they were doing and what this legislation means.  That is why they passed it and why the president signed it.  WAKE UP!  the Citizens United case recognized the economic reality that we are no longer a capitalist country, but a fascist country.  The language in this legislation was designed to make enforcement of that facism “legal” against anyone who does not gratefully accept the crumbs that fall from the table of the owners of our politicians.

  4. Pingback: Today, I agree with Bagley: Indefinite Detention of Americans is Wrong. | Publius Online

  5. Anonymous says:

    “Because of its controversial provisions on indefinite detention, President Obama had threatened to veto the bill back in May”

    Absolutely false.  ““Obama’s objections to this bill had nothing to do with civil
    liberties, due process or the Constitution. It had everything to do with
    Executive power. The White House’s complaint was that
    Congress had no business tying the hands of the President when deciding
    who should go into military detention, who should be denied a trial,
    which agencies should interrogate suspects (the FBI or the CIA). Such
    decisions, insisted the White House, are for the President, not Congress, to make. In
    other words, his veto threat was not grounded in the premise that
    indefinite military detention is wrong; it was grounded in the premise
    that it should be the President who decides who goes into military
    detention and why, not Congress.”  (from Glenn Greenwald at Salon)”

    Furthermore, the initial bill had language that expressly exempted
    American citizens from the indefinite detention power. That language has
    since been removed. According to senator Carl Levin, it was Obama who
    requested that congress remove this language:

  6. Patrickwills17 says:

    Bravo Joanne!   Thank you.  

  7. As says:

    isn’t it 1031 and 1032?

    • Fastpup says:

      Ron Paul’s assistant in DC helped me pull up the bill.  He kept referring to section 1021, and I said 1021 did not talk about detaining anyone.  He was SURE it was 1021, but when he went to the bill itself he was surprised that it was actually 1031 in the conference version.

  8. K Bratches says:

    Peeling away basic rights ever so slowly. The beginning of the end for the constitution. Time and time again our goverment proves that laws like these however well intended they may seem when scripted, are routinely abused way beyond the scope of there intentions. I wish it wasnt so. But it is. God Bless America!

  9. The NDAA only goes to further stifle our Constitutional
    Rights without the approval of the Americans, just as the Patriot Act was
    adopted WITHOUT public approval or vote just weeks after the events of
    9/11.  A mere 3 criminal charges of
    terrorism a year are attributed to this act, which is mainly used for no-knock
    raids leading to drug-related arrests without proper cause for search and
    seizure.  The laws are simply a means to
    spy on our own citizens and to detain and torture dissidents without trial or a
    right to council.  You can read much more
    about living in this Orwellian society of fear and see my visual response to
    these measures on my artist’s blog at http://dregstudiosart.blogspot.com/2011/09/living-in-society-of-fear-ten-years.html

  10. John says:

    wonderful article -thank you very much

  11. BDPIERCE says:

    How disgusting that these men would give up liberty for the illusion of security. WE THE PEOPLE will not allow this disregard of the bill of rights in particular the 4tj amendment!!f

  12. Conun Drum says:

    The language is NOT “unambiguous”.  The House and Senate have effectively amended the Constitution of the United States of America without putting such amendment to the vote of the people.  This bill  DOES take formerly self-evident truths out of the Constitution and puts the freedoms that were formerly enjoyed by American citizens into the hands of the President. 
    This is not a law against THEM.  It’s a law against US.

    • Jshelzi says:

      Whick of course clearly makes these provisions of the bill totally unconstitutional!!! And it’s not Constitution of America. It’s the word FOR in there & it does acctually make a difference. Words have meaning!!!

  13. Pingback: Ron Paul: Building a Bridge to the 18th Century | The Daily Segfault

  14. Pingback: Don’t trust Russia Today (RT) over NDAA. Or anything else for that matter. « Politics and Whatnot

  15. Blicious says:

    actually, the bible (specifically the book of revelations) talked about the tribulation which will soon take place on this earth. I scope on this is by the december 2012, as we enter a new era, we all will enter the beginning of the endtimes!

  16. Jim Childers says:

    NDAA UPDATE – More FUN and GAMES from your Crapitol hill gang:
    Section 1021 in their bill is now section 1031/1032 of the conference
    bill. What’s worse they can DEPORT even US Citizens to ANY COUNTRY –
    WITHOUT telling anyone EVER, if it is in the “Interest of National
    Security” Wouldn’t you like to know? – http://www.box.com/s/jtf7dbsd33m81lv3riir Say NO to tyranny – http://www.box.com/s/h7ijt7t0piyj4uxp15m6

  17. Citizen Rights Law says:

    I shall expect that ‘part 2′ includes the summary fact that this bill, at the bottom line, gives ONE person the right to indefinitely detain U.S. citizens, on Accusation Alone and that person or persons will have No right to trial by jury of peers by which to defend the accusation. 

    .

  18. truth in media says:

    I shall expect that ‘part 2′ reviews and does Not diminish the Fact that this bill gives or attempts to codify giving ONE person the right to detain U.S, citizens on Accusation Alone, Indefinitely, without a trial by jury of peers.

    .

  19. Pingback: Lawfare » Joanne Mariner on the NDAA

  20. Pingback: “Lawfare” – using the law to undermine the Constitution (a powerful tool in the quiet coup now in progress) « Fabius Maximus

  21. Anonymous says:

    Yes, Senate proponents told us clearly enough that we here in the U.S. are the targets of this awful legislation.  But many in the public are being confused by Section 1021 (d), which seems to leave everything as it is now.

    Basic rules of statutory construction assume Congress, when it passes legislation, is not engaged in idle activity.  When it enacts laws, it intends to have an effect.  So when a court reads paragraph (d) of Section 1021, it will not assume Congress meant to leave everything as it was.  Instead, it will assume that Congress meant to authorize military detention of U.S. citizens when the President thinks that is necessary. And the court will enforce that intent, unless the defendant can convincingly show Section 1021 is unconstitutional. 
     
    Yes, a court will then need to decide what Congress intended by adding paragraph (d).  But whatever a court may decide about that, it will not negate the impact of paragraphs (a), (b) and (c).  Because if Congress really wanted to negate the impacts of those paragraphs, Congress would have struck them from the bill.  And that’s not what it did.
     
    So what was Congress up to in Section 1021, aside from a head fake in paragraph (d) to mislead the public? 
     
    Two things, in my opinion, both very dangerous.
     
    (1) It is assuming the validity of the argument advanced by Administration lawyers that the inherent power of the President, as augmented by the AUMF, already includes the power to detain citizens indefinitely without trial, even if they are in the United States and have engaged in no hostilities against the United States, so long as the President says they are a threat to the United States.  And the fact that Congress is now on record as agreeing with this expansionist view of presidential power will greatly strengthen the Administration’s ability to withstand constitutional challenges.
     
    (2) It is taking away a potentially winning argument defendants have been using against the Bush and Obama lawyers in litigation:  that the AUMF, because it did not specifically authorize military detention, does not meet the requirement of the 1971 Non-Detention Act, which provides that “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”  Section 1021 provides a link that has been missing ever since 1971 (when Congress tried to fix the injustice of the Japanese internment).
     
    Think of what would have happened if this law had been on the books during “the troubles” in Northern Ireland.  All those Irish-Americans who gave moral support to the Irish cause, and who sent money to Irish aid organizations, could have been labeled “terrorists” and locked up for the duration of the troubles.  The Kennedys, the O’Neills, they all would have been subject to military detention because they gave “substantial support” to a group that allegedly had ties to other terrorists and that was engaged in hostilities against an ally, England. 

  22. Pingback: NDAA The Devil is in the Discretion

  23. Pingback: Political Irony › Know Your Rights, What’s Left of Them

  24. Savage13 says:

    his discretion, his values when the hell did obama become king. also why are Our employees(the government(congress)) voting for a bill that is a serious violation of our civil rights. i think these buffoons need to read a little political treatise called the U.S. constitution

  25. John Simmons says:

    Where is part 2?

  26. ForTheTruth says:

    Is this research old or something?  Because the document I am looking at has the article amended on page 428 section 1031 not 1021…  My source is Government Printing Office here: 
    http://www.gpo.gov/fdsys/pkg/BILLS-112s1867es/pdf/BILLS-112s1867es.pdf

  27. Aaron Freeman says:

    Obama should be arrested and tried for treason.  He should certainly be drummed from office.

  28. Jtmoneybag says:

    Your all idiots this has nothing to do with normal everyday American people. This simply is taking away the right of the so called bad guys! If you just live a normal life dont try look at stuff your no supposed to do say things that may convict you and dont act out in stupid ways then you will not be bothered at all. The problem with the Law is there are so many ways around it and everyday people go free that should be locked up. This is a way to make sure these kind of people dont go free. The only reason you should be frecking out like school girls as all of you are, is if you plan on doing something against the law? So what is it ? you all criminals or you just like to see criminals go free? I got some advice for you idiots, Stop wasting your time on crying about what freedoms you dont have an realize the ones you still have are more then most! When you start having people doing stupid things it ruins it for everyone. So you dont wanna be told what to do like a kid? Then stop acting like children? How about you turn people in who are suspious how about you control this country? You cant so stand by and let the people who can do their jobs you act civil and dont bother people or come up with stupid plots you wont be bothered! Guess what America??? Freedom Don’t Come Free!!!! Live with it or like i wish all of you would……………….GET OUT!!!

    • Gloria says:

      I understand what you’re saying.  But what happens when the detention is a “mistake”, “misunderstanding”, “false”,etc…?    What if someone is erroneously detained?  What if the detention is based on suspicions?   How long will the American citizen be held before the facts come out?  Indefinitely.  THAT is not right.  

    • Jessica D. says:

      This is a type of mentality that is scary. If we all just turn a blind eye to the law encroaching on our civil liberties, our collective power will continue to be stripped away.

      You are saying that we shouldn’t be protesting the fact that the military can detain any one of us indefinitely, without a trial, on the mere SUSPICION that we are terrorists.

      I’m sorry you’re so willing to sit silent while the basic rights you’re entitled to under the federal constitution are threatened; some of us, are not.

      • Caro says:

         I am a frustrated novelist. I write in a variety of genres. I am also working on political satire and a thriller plot. (I am merely researching at this point and trying to line up the necessary.)

        In my teens I made the mistake of writing letters criticizing President Nixon’s illegal policies in SE Asian.

        In  2009,  I made the mistake of writing the current President a letter hoping he would put the fear of God into the bankers.  I also sent a copy to Chris Cuomo’s office, hoping it would show how the public felt around the financial meltdown due to the Commodity Futures Modernization Act of 2000, which exempted bankers trading derivatives from regulation and gambling laws, which followed in lockstep with the repeal of Glass-Steagall.  Now because I said I hoped he put the fear of god into them, does that make me a terrorist?

        I’ve also written Congress suggesting religion is a business that makes extravagant claims about the benefits of its product that are unverifiable in this life and that it should be taxed like any other business. (Which Jim and Tammy Faye Baker have fleeced the public if God wasn’t exempt from taxation? Personally, I see no conflict between freedom of religion and taxing religion. Didn’t the New Testament say Render unto Caesar what is Caesar’s?
        That is clearly an unpopular idea.

        Does the fact that iread Tom Clancy and research information online about bioweapons and drones and the drug trade in search of inspiration for a thriller plot make me a terrorist? My actual works in progress are romances, but I would like to try my hand at a thriller. I enjoy reading them and writing one would be challenging.

        Popular Science talked about a safe new chemical wonder cleaner remediation agents for safely cleaning all kinds of things? I emailed the CEO of the company and asked if it would clean grout or whiten teeth. He was so amused he sent me a sample. (It’s used to decontaminate nuclear submarines. ) Now I am afraid to use it on my grout because it can cause birth defects and I would need a biohazard suit.) Two local fire departments biohazard departments refused the donation of the substance. So, far I’ve been too embarrassed to return it to the manufacturer. Does the fact I have this substance in my possession mean I am a terrorist or plotting something?

        Think back to being a kid in school and the game gossip or rumor. Should peoples lives possibly be destroyed by gossip or suspicion because they are denied the due process of a civilian trial.

        Think back to the McCarthy Era and how people were blacklisted.

        Think about it, these laws gives government the right to exile citizens to a gulag. Whether an abuse happens in error or by intent, it is still an abuse. Imagine the possibilities for asset forfeiture. 

        Back before the French Revolution, King Louis the XVI used to affix his signature to a lettre de cachet. He did not like the practice, but it was a traditional way for the government to raise money and the government was broke. Basically, a wealthy person could buy a lettre de cachet, A BLANK WARRANT,  from the King, take it home and fill in any name he or she wished. Is the wife, mother-in-law or mistress troublesome? Do you want to get rid of your stepson so your son will inherit? Is your business rival trying to steal your mistress? Just buy the lettre and make the person disappear into the night to be imprisoned forever in places like the Bastille.

        Are you really comfortable turning the clock back two centuries and destroying the protections of the Bill of Rights? Ask the Japanese Americans how it felt being sequestered in concentration camps as possible traitors on mere suspicion. The law has abuse written all over it if you would open your eyes.

    • historian says:

      I don’t like your attitude I am going to detain you and you have no right to council, for ever…Wake up Jtmoneybug you live in a state very similar to Nazi Germany, wake up and smell the liberties disappearing

    • Anonymous says:

      No dickhead. The occupy protesters were just added to the list of terrorist organizations in the US, along with teapartiers, churches, and all other PEACEFUL and PASSIVE protesters. Educate yourself shitbird.

    • Lakers24girl says:

      It all cones down to what we define a terrorist, or should I say what the president would define a terrorist. You would be defining a terrorist as a person who is planning to blow something or possibly be leaking national secrets that threaten our national security which is probably why you don’t see the problem with such a bill. The problen cones when we leave such broadbess to the definition. Would posting a facebook post disagreeing with the government qualify you a terrorist? Would this make Glenn Beck or Sean Hannity terrorists because they have the nerve to question their government, it is basically left open that a terrorist is anyone who threatens the government or national security. Threaten as in threaten their power, and threaten their control. Maybe this is why the mainstream media refuses to utter a negative word, or omits to bring up and discuss anything that would show King Obama in a negative light, because they are afraid, knowing what is to come from this bill, to be detained for being terrorists. With all the “terrorists” gone, it would leave one sided media (already leaning that way), with one sided media cone restriction on internet (also already happening), forcing religious entities to partipate in providing contraception which is against their beliefs disregarsing their first amendment right for freedom of religion (already happening), comes to people not knowing their candidates as a result of the one sided media (already happening) which limits their vote and their understanding which deminishes the purpose of a democratic society and eventually elimiates our right to freedom of speech. If you don’t get that, read a book and please don’t vote until you know who John Hancock, James Madison, Thomas Jefferson, George Washington, and Benjamin Franklin are and what they wanted for this country.

    • Lakers24girl says:

      It all cones down to what we define a terrorist, or should I say what the president would define a terrorist. You would be defining a terrorist as a person who is planning to blow something or possibly be leaking national secrets that threaten our national security which is probably why you don’t see the problem with such a bill. The problen cones when we leave such broadbess to the definition. Would posting a facebook post disagreeing with the government qualify you a terrorist? Would this make Glenn Beck or Sean Hannity terrorists because they have the nerve to question their government, it is basically left open that a terrorist is anyone who threatens the government or national security. Threaten as in threaten their power, and threaten their control. Maybe this is why the mainstream media refuses to utter a negative word, or omits to bring up and discuss anything that would show King Obama in a negative light, because they are afraid, knowing what is to come from this bill, to be detained for being terrorists. With all the “terrorists” gone, it would leave one sided media (already leaning that way), with one sided media cone restriction on internet (also already happening), forcing religious entities to partipate in providing contraception which is against their beliefs disregarsing their first amendment right for freedom of religion (already happening), comes to people not knowing their candidates as a result of the one sided media (already happening) which limits their vote and their understanding which deminishes the purpose of a democratic society and eventually elimiates our right to freedom of speech. If you don’t get that, read a book and please don’t vote until you know who John Hancock, James Madison, Thomas Jefferson, George Washington, and Benjamin Franklin are and what they wanted for this country.

    • Lakers24girl says:

      It all cones down to what we define a terrorist, or should I say what the president would define a terrorist. You would be defining a terrorist as a person who is planning to blow something or possibly be leaking national secrets that threaten our national security which is probably why you don’t see the problem with such a bill. The problen cones when we leave such broadbess to the definition. Would posting a facebook post disagreeing with the government qualify you a terrorist? Would this make Glenn Beck or Sean Hannity terrorists because they have the nerve to question their government, it is basically left open that a terrorist is anyone who threatens the government or national security. Threaten as in threaten their power, and threaten their control. Maybe this is why the mainstream media refuses to utter a negative word, or omits to bring up and discuss anything that would show King Obama in a negative light, because they are afraid, knowing what is to come from this bill, to be detained for being terrorists. With all the “terrorists” gone, it would leave one sided media (already leaning that way), with one sided media cone restriction on internet (also already happening), forcing religious entities to partipate in providing contraception which is against their beliefs disregarsing their first amendment right for freedom of religion (already happening), comes to people not knowing their candidates as a result of the one sided media (already happening) which limits their vote and their understanding which deminishes the purpose of a democratic society and eventually elimiates our right to freedom of speech. If you don’t get that, read a book and please don’t vote until you know who John Hancock, James Madison, Thomas Jefferson, George Washington, and Benjamin Franklin are and what they wanted for this country.

      • Best response. Famous quotes of Thomas Jefferson…
        “The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government. ”

        “Was the government to prescribe to us our medicine and diet, our bodies would be in such keeping as our souls are now.”

        “Laws that forbid the carrying of arms…disarm only those who are neither inclined nor determined to commit crimes… Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.”

        “The policy of the American government is to leave their citizens free, neither restraining nor aiding them in their pursuits.”

        “No man has a natural right to commit aggression on the equal rights of another, and this is all from which the laws ought to restrain him.”

        “When the people fear their government, there is tyranny; when the government fears the people, there is liberty. ”

        “I am not a friend to a very energetic government. It is always oppressive. ”

        “Shake off all the fears of servile prejudices, under which weak minds are servilely crouched. Fix reason firmly in her seat, and call on her tribunal for every fact, every opinion. Question with boldness even the existence of a God; because, if there be one, he must more approve of the homage of reason than that of blindfolded fear. ”

        “The god who gave us life, gave us liberty at the same time: the hand of force may destroy, but cannot disjoin them.”

  29. Ananda says:

    Does this mean that any jerk can just delcare Occupy action protests as a threat to terrisism and just hall us all away into permenanet detention? 

  30. John kemp says:

    Tyais Terry the congress has ALL READY PASSED this bill the only person that can stop the destruction of the US Constitution is the President . 

  31. Ritam says:

    Thank you much for this substantive analysis…looking forward to the next one!
    For Your Information and Action: The City of Berkeley adopted Resolution NO. 65,491-N.S. on 25 October 2011 supporting the closure of Guantanamo, and urging that Congress and Homeland Security remove bans on the movement of cleared detainees to the US.  The Resolution was sent to President Obama, Attorney General Holder, Senator Feinstein, Senator Boxer, and Congresswoman Barbara Lee, with copies to endorsers Amnesty International USA and Dominican School of Theology & Philosophy, and also to UN High Commissioner for Human Rights Navi Pillay. Readers take note: Copy this resolution and present to your city Council for similar action,with copies to your Senators and House Representatives.

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  33. Anonymous says:

    Just FYI — in case anyone actually wants to try to do something about this, rather than just spin our wheels — might I recommend this? https://wwws.whitehouse.gov/petitions#!/petition/veto-national-defense-authorization-act-2012-several-provisions-bill-pose-threat-civil-liberties/GLfhBn6D

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  35. belle says:

    This horrible usurpation of our rights is why we need Ron Paul as President. He alone is the defender of the Bill of Rights and against the erosion of our civil liberties. Ron Paul 2012 for Freedom, Liberty, and the Constitution!

  36. Anonymous says:

    JTMoney bag should realize that this is what I call the federal government’s “do anything to anybody law”. JTMoney bag should understand the constitution was written to protect us from an out of control government which is exactly what we have now. This is not about terrorism, this is about control and doing away with the constitution. He is childish to think that the government has good intentions with a law that breaks the Constitution. All the politicians who voted for this law are guilty of treason pure and simple. The patriot Act, National Defense Authorization Act, SOPA, and so on are whittling our rights away faster that we can imagine. How do you have a war on terror with open borders, and now the obommunist has a hot line for illegals to call if they feel their rights have been violated. The whole situation is lights and mirrors and fools like JTMoneybags are typical sheep that will someday be enslaved. A nation of sheep breeds a nation of wolves!

  37. Anonymous says:

    The Nation Defense Authorization act is the Federal Governments version of do anything to anybody at any time law. This is a direct violation of our Constitutional rights and clearly has bad intentions. Any politician who voted for this law is guilty of treason. The Patriot Act, National Defense Authorization Act, SOPA, and on and on, are clearly the tools that are intended to enslave We The People. Anybody who thinks this is just for the bad guys are fools. When you have to worry about anything you say, write or do, like I am doing write now is like living in a commie country. What JTMonebag doesn’t realize they could come and knock on his door right now for what he has written. The war.on.terror is lights and mirrors as an excuse to exclude the Constitution so we no longer  have the rights we do. A nation of sheep breeds a government of.wolves.

  38. Yourking1965 says:

    In my experience, black boys and men have been stopped, arrested, AND indefinitely detained for as long as I have read into American history. It has and always will happen in our free country. SO…..as a black man, I don’t really see the danger in such “language”.

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  40. PaulTorrent says:

    This should have never even been raised. This is laying down the precedents to a military regimes and opening the doors to fascism. It is clear and obvious that the world economy is going to collapse sooner or later and government are looking for excuses to get rid of protesters. This is a well planned out war against the people of the world and there is way too little courage coming from people in power who should call this for what it is. SS. Gestapo. Fascism. New World order in plain site. The USA has no place in saying a word as far as justice, freedom or democracy. What a putrid spectacle. 

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  53. Arthur Brennan says:

    Dear Attorney Mariner,
    Thank you so much for your valuable work.  A few days ago I parsed out the offending law and  came up with a John Yoo plain language sort of interpretation.  Here’s what Congress and President Obama have made the law of the land: 

    “Congress agrees with the President’s claim that he can order the forceable seizure, transportation and endless military imprisonment of any American citizen without legal proof and without access to the courts. The President’s chosen Americans can be imprisoned in the US or any other country or corporation the President chooses.”

    I am a veteran and a retired judge.  I know something but not everything about statutory interpretation. I have also been an advocate and know a little about how to play on that one-way street. For an American imprisoned under this act it really doesn’t matter what any court may think about the law because under this law the prisoner has no access to the courts.  Kind of a snake eating its tail sort of thing.Peace,Art

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  59. James Manning says:

    Too late to oppose it peacefully. “Thats what you get for pretending the dangers not real.”
    Pink Floyd

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  65. Onemorecup says:

    “Numerous human rights advocates, civil libertarians, and members of Congress disagree. Human Rights Watch said that President Obama’s decision not to veto the bill “does enormous damage to the rule of law both in the US and abroad.”  The ACLU said, “if President Obama signs this bill, it will damage both his legacy and American’s reputation for upholding the rule of law.” Representative Jerrold Nadler, who voted against the bill, said that it presents a “momentous challenge to one of the founding principles of the United States—that no person may be deprived of his liberty without due process of law.”
    Does anyone feel differently about the so-called “rule of law” in the United States? All of these aspiring leaders from Human Rights Watch, ACLU, and a member of congress all appealed to the rationale of this notion of “rule of law” in the USA. Notwithstanding a President who violates the very “rule of law” which is purported to be the US Constitution even today in a way with waivers for health care with additional czar appointees, this president is way to far out of bounds to make any clear and cohesive statement.

    In fact it could be argued that the entire left-leaning side of the populace of the USA stands convicted in our current helter-skelter “undocumented” person hood status of the overwhelming number of illegal aliens. Thank you.

  66. Onemorecup says:

    “Numerous human rights advocates, civil libertarians, and members of Congress disagree. Human Rights Watch said that President Obama’s decision not to veto the bill “does enormous damage to the rule of law both in the US and abroad.”  The ACLU said, “if President Obama signs this bill, it will damage both his legacy and American’s reputation for upholding the rule of law.” Representative Jerrold Nadler, who voted against the bill, said that it presents a “momentous challenge to one of the founding principles of the United States—that no person may be deprived of his liberty without due process of law.”
    Does anyone feel differently about the so-called “rule of law” in the United States? All of these aspiring leaders from Human Rights Watch, ACLU, and a member of congress all appealed to the rationale of this notion of “rule of law” in the USA. Notwithstanding a President who violates the very “rule of law” which is purported to be the US Constitution even today in a way with waivers for health care with additional czar appointees, this president is way to far out of bounds to make any clear and cohesive statement.

    In fact it could be argued that the entire left-leaning side of the populace of the USA stands convicted in our current helter-skelter “undocumented” person hood status of the overwhelming number of illegal aliens. Thank you.

  67. Onemorecup says:

    “Numerous human rights advocates, civil libertarians, and members of Congress disagree. Human Rights Watch said that President Obama’s decision not to veto the bill “does enormous damage to the rule of law both in the US and abroad.”  The ACLU said, “if President Obama signs this bill, it will damage both his legacy and American’s reputation for upholding the rule of law.” Representative Jerrold Nadler, who voted against the bill, said that it presents a “momentous challenge to one of the founding principles of the United States—that no person may be deprived of his liberty without due process of law.”
    Does anyone feel differently about the so-called “rule of law” in the United States? All of these aspiring leaders from Human Rights Watch, ACLU, and a member of congress all appealed to the rationale of this notion of “rule of law” in the USA. Notwithstanding a President who violates the very “rule of law” which is purported to be the US Constitution even today in a way with waivers for health care with additional czar appointees, this president is way to far out of bounds to make any clear and cohesive statement.

    In fact it could be argued that the entire left-leaning side of the populace of the USA stands convicted in our current helter-skelter “undocumented” person hood status of the overwhelming number of illegal aliens. Thank you.

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  78. checkedsources says:

    I know its been awhile, but if you people took a second to research into these claims, they would appear completely unprecedented.
    NDAA 2012 Sec 1021 & 1022 read as follows:

    LIMITATION ON AVAILABILITY OF FUNDS FOR PLACING MARITIME PREPOSITIONING SHIP SQUADRONS ON REDUCED OPERATING STATUS.

    (Copied directly from the legislature, available at govtrack.us)
    and

    SEC. 1022. MODIFICATION OF CONDITIONS ON STATUS OF RETIRED AIRCRAFT CARRIER EX-JOHN F. KENNEDY.
    Infact, there is NO mention of “indefinite detention” and the only time the word “Detention” is ever mentioned is in reference to DoD making/modifying prisons in the US for Git-Mo, and holding Afghan militants on US Navel Vessels.

    Go ahead, search the bill if you don’t believe me. Even go ahead and use the “Search” function, put in as many words as you’d like, you won’t find what you’re looking for.

    • gpenglase says:

      checkedsources I’d suggest it might be time for you to change your handle to something else (maybe, doesntchecksourcesverywell or itsbeendicussedbythewholecountrybutistillcantfinditsoidontbelieveitexists)

      Specifically is states that while everyone else is held accountable to the constitution, the President alone has the right to overrule detention of citizens.

      Interestingly I recall another national leader enacting the same measures roughly 60 years ago. And he was from a different country too but was still elected. And he also was hailed as a great leader by all the fools who looked the other way (though he actually did turn his country’s fortunes around, as opposed to Obama). And then when he had “cleansed” his country of all dissidents he plunged the world into war and his country into a genocide of Jews. Stalin and Mao of course didn’t have any such annoying legislative restrictions like these that he or Obama had to bypass – they just went ahead and wiped out millions of their countrymen.

      Hmmm, there seems to be a pattern here… now what is it I wonder? Could it be that leftist humanists see everyone else as expedient in their lust for power, and will remove whatever “petty” obstacles that stand in their way and use whatever words or means necessary to achieve domination?

      I am so glad that my children, though US citizens, don’t live in the U.S. but in Australia with me.

      SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.

      (a) In General- Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

      (b) Covered Persons- A covered person under this section is any person as follows:

      (1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

      (2) 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.

      (c) Disposition Under Law of War- The disposition of a person under the law of war as described in subsection (a) may include the following:

      (1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.

      (2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)).

      (3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.

      (4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.

      SEC. 1022. MILITARY CUSTODY FOR FOREIGN AL-QAEDA TERRORISTS.

      (a) Custody Pending Disposition Under Law of War-

      (1) IN GENERAL- Except as provided in paragraph (4), the Armed Forces of the United States shall hold a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107-40) in military custody pending disposition under the law of war.

      (2) COVERED PERSONS- The requirement in paragraph (1) shall apply to any person whose detention is authorized under section 1021 who is determined–

      (A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and

      (B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.

      (3) DISPOSITION UNDER LAW OF WAR- For purposes of this subsection, the disposition of a person under the law of war has the meaning given in section 1021(c), except that no transfer otherwise described in paragraph (4) of that section shall be made unless consistent with the requirements of section 1028.

      (4) WAIVER FOR NATIONAL SECURITY- The President may waive the requirement of paragraph
      (1) if the President submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.

      (b) Applicability to United States Citizens and Lawful Resident Aliens-

      (1) UNITED STATES CITIZENS- The requirement to detain a person in military custody under this section does not extend to citizens of the United States.

      (2) LAWFUL RESIDENT ALIENS- The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.

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  81. gpenglase says:

    What??!! The Patriot Act is what instituted this! Bush Jr brought this and Guantanamo into being – Obama like the good lapdog he is, has followed suit by expanding it and in a single stroke give himself total free reign in terms of detention (and worse) of persons.

    It’s about time you woke up and smelled the roses. No matter what side of politics, the gov’t exists for itself and those that rule the country, no one else. The concept of 2 parties is a successful smokescreen that the gov’t is elected and does the will of the people. At a low level it is allowed to but in the high level where power over the people rests it doesn’t – it is a snake with two heads.

    The Patriot Act of 2001 was brought in because of what they wish to be able to do, not because of what happened on 9/11 – for goodness sake long before and long after 9/11 Republicans (read: Bush) and Democrats were still in business with the bin Laden’s. History is littered with powerful people who have arranged attacks on their own countries to enable them to seize the power they need to rule. Do you seriously think the powers that be treat America any differently? The US is the Babylon of the modern age – magnificently wealthy, incredibly resource-rich glittering jewel of a nation with unmatched military power who deals in wars and topples kingdoms around the world year in and year out.

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