The Defense Bill Passed. So What Does It Do?
—By Adam Serwer
| Fri Dec. 16, 2011 2:34 PM PST122. Paul Keller/FlickrFollowing the Obama administration’s withdrawal of its veto threat Wednesday, the National Defense Authorization Act passed both houses of Congress easily and is now headed to the president’s desk.

So what exactly does the bill do? It says that the president has to hold a foreign Al Qaeda suspect captured on US soil in military detention—except it leaves enough procedural loopholes that someone like convicted underwear bomber and Nigerian citizen Umar Abdulmutallab could actually go from capture to trial without ever being held by the military. It does not, contrary to what many media outlets have reported, authorize the president to indefinitely detain without trial an American citizen suspected of terrorism who is captured in the US. A last minute compromise amendment adopted in the Senate, whose language was retained in the final bill, leaves it up to the courts to decide if the president has that power, should a future president try to exercise it. But if a future president does try to assert the authority to detain an American citizen without charge or trial, it won’t be based on the authority in this bill.

So it’s simply not true, as the Guardian wrote yesterday, that the the bill “allows the military to indefinitely detain without trial American terrorism suspects arrested on US soil who could then be shipped to Guantánamo Bay.” When the New York Times editorial page writes that the bill would “strip the F.B.I., federal prosecutors and federal courts of all or most of their power to arrest and prosecute terrorists and hand it off to the military,” or that the “legislation could also give future presidents the authority to throw American citizens into prison for life without charges or a trial,” they’re simply wrong.

The language in the bill that relates to the detention authority as far as US citizens and permanent residents are concerned is, “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.”

As I’ve written before, this is cop-out language. It allows people who think the 2001 Authorization to Use Military Force against the perpetrators of the 9/11 attacks gives the president the authority to detain US citizens without charge or trial to say that, but it also allows people who can read the Constitution of the United States to argue something else. That’s why Sen. Dianne Feinstein (D-Calif.) has proposed legislation to make it clear that indefinite detention authority does not apply to US citizens arrested in the US—which at the very least, should force Congress to go on record about who exactly is opposed to detention without trial at the whim of the executive branch.

Does the defense bill change the status quo? Yes. Though detention of non-citizen Al Qaeda suspects captured in the US is now mandatory in name only, because of procedural loopholes that allow the president to avoid placing such a suspect in military custody, the bill nevertheless writes into law an assumed role for the military in domestic counterterrorism that did not exist before. This is not a power this president is likely to use, because neither he nor his top national security officials seem to think they even need it. A future US president, even one more enamored of executive power, might still not use it for similar reasons: Because his non-political advisers tell him it’s a bad idea.

Still, the reason supporters like Senator Lindsey Graham (R-S.C.) are happy with this bill is that it codifies into law a role for the military where there was none before. It is the first concrete gesture Congress has made towards turning the homeland into the battlefield, even if the impact in the near term is more symbolic and political than concrete.

But “symbolic” and “political” doesn’t mean “meaningless.” Codifying indefinite detention on American soil is a very dangerous step, and politicians who believe the military should have an even larger domestic counterterrorism role simply aren’t going to be satisfied with this. In fact, if there is another attack, it’s all but certain they will hammer the president should he choose not to place the suspect in military detention.

There really is no telling where inertia brings us from here. Graham and his colleagues have made no secret of the fact that they believe the president should (and does) have the ability to detain American terrorism suspects captured in the US indefinitely, and they may even have enough votes in Congress to make it happen some day. At that point, the only defense for Americans will be the Constitution and a Supreme Court willing to read what it says.

UPDATE: In case it’s not clear, I still think the president should veto the bill. What it does is bad enough. It just doesn’t do what a lot of people are saying it does.
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If You Liked This, You Might Also Like…FBI Chief: NDAA Detention Provisions Still Bad
In testimony on Capitol Hill, FBI director Robert Mueller III appears to lock the administration into a veto.
New NDAA’s Loopholes Make Its Military Detention Provisions Almost Pointless
Congress only wants to micromanage counterterrorism operations after the fact.
Former Bush Officials Slam Mandatory Military Detention Bill
Try to remember the last time former Bush officials, the Obama White House, and the ACLU were on the same side of an issue.
5 Things to Know About Detention in the Defense Bill
What the defense bill does and doesn’t do.
“That Is The Jewish Grandmotheriest Argument I Have Ever Heard For Indefinite Detention”
The Daily Show on the National Defense Authorization Act.Adam SerwerReporter
Adam Serwer is a reporter at the Washington, DC, bureau of Mother Jones. For more of his stories, click here. You can also follow him on Twitter. Email tips and insights to aserwer [at] motherjones [dot] com. RSS | Twitter
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William King 12/16/2011 10:25 AM

All Hail our Commander in Chief! And long live the Homeland! and if you disagree you will be snatched out of your home by the military and shipped off to prison for the rest of your life. show more show less
Flag Neo Conned and 13 more liked this Like ReplyReply Lumnights 12/16/2011 12:47 PM in reply to William King

Well, there’s one person who obviously didn’t read the article. show more show less
Flag villemar and 40 more liked this Like ReplyReply Chikachikahonkhonk 12/17/2011 09:58 AM in reply to Lumnights

i read it.. i just don’t buy it… to me it’s still indicating a media bias… it’s like defending the patriot act… you know i hate Al Qaeda less and less as time goes on… first off; they are all former CIA operatives… (Saddam was also a former CIA operative), so we can only blame the CIA for reading Al Qaeda… second; what were the targeted locations on 9/11? everybody was too butt hurt to think about what got attacked (instead of that we got attacked) they hit OUR FINANCIAL/BANKING SYSTEM, AND OUR MILITARY INDUSTRIAL COMPLEX… i think both should go… i do not agree with the violent methods or the collateral damage (innocent lives) but how else do you defeat a power hungry monopoly of world bullying? IDK how else you might do that… show more show less
Flag James Barbaria and 2 more liked this Like ReplyReply DaveD 12/17/2011 04:07 PM in reply to Chikachikahonkhonk

Yes it seems the “collateral damage (innocent lives)” is a horrible thing; worth expending trillions of dollars that we can’t afford, and wasting thousands of American military lives. It doesn’t seem though that it is quite such a horrible thing though when it is we who is inflicting “collateral damage (innocent lives)”. This is a very sad reflection on the “moral” values of this nation. show more show less
Flag Catseye71352 and 2 more liked this Like ReplyReply Say NO to Corporate America 12/19/2011 01:41 AM in reply to Lumnights

The author obviously didn’t read the “existing law”. Here’s a hint, YES HE CAN OPRDER MILITARY TO DETAIN US CITIZEN, INDEFINITELY!!!
* To the question on “EXISTING LAW” in NDAA amendment 1456, Jose Padilla, a US citizen, captured in US, held for almost 4 years by military without charge, Fourth Circuit Court of Appeals:
p.6
“We conclude that the President does possess authority pursuant to the
Authorization for Use of Military Force Joint Resolution enacted by
Congress in the wake of the attacks on the United States of September,
11, 2001. Accordingly, the judgment of the district court is reversed.”p.8 “The district court subsequently held that the President lacks the authority to detain Padilla, id. at 180-81, that Padilla’s detention is in violation of the Constitution and laws of the United States, id., and that Padilla therefore must either be criminally charged or released.”
‘Your Allotted Amount of Freedom has Expired!’ http://saynotocorporateamerica… is follow up to ‘Permanent Martial Law – NO Due Process for Americans in America’, http://saynotocorporateamerica… is follow up to
‘Proof Obama will sign NDAA 1031 Citizen Imprisonment Law in a few days’, http://saynotocorporateamerica… show more show less
Flag Like ReplyReply Say NO to Corporate America 12/19/2011 02:14 AM in reply to Say NO to Corporate America

IT IS CLEAR, you just have to look at existing law! Please get this straight Mother Jones! PLEASE!!!
Since Padilla case is the existing law, we have to look at Fourth Circuit Court of Appeals opinion!
I prefer the district court ruling, but seeing as how SCOTUS agreed to hear it, then said the case was improperly filed,
Lawmakers in CONgress tried to amend with clear language, but that is not in the agenda. Ask yourself why!
ADD IT UP! Army is hiring for internment camp officers + Occupy is deemed a “terror threat” by authorities + citizens can be detained by military [for vague reasons] + National Guard survey that just asked “WILL YOU USE LETHAL FORCE AGAINST THE AMERICAN PUBLIC IF ORDERED TO DO SO?” = WAKE UP!!!
My friend’s neighbor is National Guard, he confirmed this survey last week- he said, One Guardsman said he would not answer the question on “moral grounds” and he laid his weapon down and lined up he said it was “like a waterfall”, they all did the same thing and followed in formation behind him. GOOD! The officers were the only ones left, one started having chest pains as he yelled…show more show less
Flag 4 people liked this. Like ReplyReply eannie 12/17/2011 10:07 AM in reply to William King

I don’t think that is what it says. show more show less
Flag Like ReplyReply cHills 12/16/2011 10:39 AM

Lol @ William King. XD

Who would’ve thought this country would have bills like this (and SOPA/PIPA) going through congress ..15 years ago? Mind boggling the changes this country has gone through ..and they aren’t good changes. Lets hope the Supreme Court isn’t completely bought out like Congress and the Executive branch…

Lindsay Graham disgusts me. He is either a complete idiot, naive as hell or hes just completely corrupt. ORR maybe all three. I still can’t wrap my mind around the fact that someone like him wants to make our country “part of the battlefield”. Its so ridiculous that they think they can WIN THE WAR ON TERRORISM! (I think they are pushing that view but don’t actually believe in it. They are sneaky bastards and are probably doing this for a power grab IMHO)Terrorism has been around since the beginning of time, it is especially futile to try and fight it under the context of a “war” ..if anything we have created the next generation of anti-American terrorists (Like in Iraq ..at least we are gone now).

As Ben Franklin said, Those who give up their liberty for more security neither deserve liberty nor security. America is selling…show more show less
Flag Dr. Matt and 19 more liked this Like ReplyReply DaveD 12/17/2011 04:08 PM in reply to cHills

Lindsay Graham is suffering from a “mental recession”, and has been for many years. show more show less
Flag Catseye71352 and 4 more liked this Like ReplyReply ToobBox.com 12/16/2011 10:46 AM

Ok well I really think it would be in the best interest of the White House to make a public announcement that if they are going to arrest American citizens, that they will be given a fair trial – regardless of the type of crime (whether it’s terrorism or suspected terrorism, an enemy combatant etc.). Simply because the entire world and every major news organization thinks otherwise. There definitely needs to be some clarification.

On top of that – I know plenty of Democrats (I happen to be neither) that are getting disgusted with this current Administration. It appears that they are reversing their stance on a lot issues that they kicked off the 2008 campaign with. show more show less
Flag 11 people liked this. Like ReplyReply John Alexander Thacker 12/16/2011 09:00 PM in reply to ToobBox.com

Of course, too bad all the primary filing deadlines are over without a single credible protest candidate for people to vote for in Democratic primaries. Registering GOP and voting for Ron Paul may actually be your only choice of expressing discontent.

Paul might actually be better than the other Republican choices. show more show less
Flag James Barbaria and 2 more liked this Like ReplyReply ThePanicMan 12/17/2011 12:33 PM in reply to John Alexander Thacker

Yeah, vote for the racist sexist who dupes people into voting for him because of his stoner-college-kid-friendly grandstand views based solely in neo-feudalist anti-government bullcrap. show more show less
Flag Catseye71352 and 9 more liked this Like ReplyReply James Barbaria 12/18/2011 08:15 AM in reply to ThePanicMan

Racist because of a newsletter that he did not edit and was only in his name with statements from someone else makes HIM racist. I don’t think so. He is a supporter of the constitution JUST LIKE MLK and Like MLK he beleives it should be based on the person and NOT the color of their skin. If because of these newsletters Paul is guilty then HOLDER is certainly guilty for allegedly not reading memos. RON PAUL is the ONLY candidate that is not for more war, wants a strong defense, sound money, low or now personal taxes. THIS is what our constitution gives us. Not all these liberals destroying the morals of this country. If you would just look up Pauls views from OVER THIRTY YEARS AGO they are the same exact thing. SAME message. Voting record is rock solid. ALWAYS with the constitution. He believes in personal liberties and freedoms. Not like Newt Gangrape the constitution, MichellE ( my facts are right/NOT) Bachmann, I hate muslims and gays Santorium, I love mandates and flip flop ROmney, I added more to the national debt in one term then all other presidents combined Obama. I MEAN COME ON.. JUST RESEARCH…show more show less
Flag Like ReplyReply TeDeum 12/18/2011 08:34 PM in reply to James Barbaria

No, Holder’s guilty for not investigating or prosecuting crimes against humanity. (He feels federal limited manpower is better-used when busting weed coops to keep cancer patients starving, or something…). I don’t endorse him, but Dr. Paul has made it clear for the last 2 decades where he stands on that one, too! show more show less
Flag 1 person liked this. Like ReplyReply TeDeum 12/18/2011 08:29 PM in reply to ThePanicMan

Ba-zing! show more show less
Flag Like ReplyReply Cypherpunks (a public account) 12/21/2011 12:25 PM in reply to John Alexander Thacker

Ron Paul follows Ayn Rand. I consider her philosophy sociopathic, and anyone who thinks she’s great won’t be getting my vote. He’ll just be more of the same “screw you, I’ve got mine” mentality, only as leader of the free world and I’m not interested. Period. show more show less
Flag 3 people liked this. Like ReplyReply hockley 12/16/2011 11:02 AM

This is not a good idea. Current criminal law provides all that is necessary to deal effectively with people who are an actual threat. These provisions are not required. show more show less
Flag Neo Conned and 18 more liked this Like ReplyReply Neo Conned 12/16/2011 09:41 PM in reply to hockley

This new set of unconstitutional provisions is not about the application of the law. It is to facilitate authoritarian rule through raw power. show more show less
Flag Catseye71352 and 5 more liked this Like ReplyReply Say NO to Corporate America 12/20/2011 10:04 AM in reply to Neo Conned

YES! TO RULE BY FEAR, NOT RULE OF LAW!
LOOK At the FACTS… ADD
IT UP! US citizen imprisonment + Internment camps hiring + OWS labeled a
“terror threat” by the law + National Guard survey Asking if They Would
Use Lethal Force Against the American People (confirmed by multiple
sources) = WAKE UP WAKE UP WAKE UP! – Why worry? America’s TOTALITARIAN Regime… Remember what happened in Germany!!!
Rude Wake Up Call America! Your Allotted Amount of Freedom has Expired!
http://saynotocorporateamerica…
NOTE – Senators just introduced “Due Process Guarantee Act of 2011” in response to UNCONSTITUTIONAL NDAA.
THIS IS NOT A DRILL FOLKS!!! WAKE UP WAKE UP WAKE UP WAKE UP

show more show less
Flag Like ReplyReply Tawny Jones 12/16/2011 11:18 AM

Obama, standing tall with John McCain & Lindsay Graham, offers hope & change to a battered, bewildered nation. show more show less
Flag BruceMcGlory and 2 more liked this Like ReplyReply BruceMcGlory 12/16/2011 11:39 AM in reply to Tawny Jones

Interesting, isn’t it, that Obama is basically identical to Bush, Jr. in terms of retention and/or expansion of executive office powers, but I’m still supposed to pick him because he’s not a republican? Are we sure about that? I’m being serious – the country moves further to the right, democrats become republicans, republicans become Teahadists. He’s not a democrat in any meaningful sense, he’s what republicans were before they went fucking insane. show more show less
Flag fiverrah and 25 more liked this Like ReplyReply Wes 12/16/2011 01:40 PM in reply to BruceMcGlory

Ron Paul is the most civil liberties and thus sane guy running. show more show less
Flag James Barbaria and 4 more liked this Like ReplyReply WilmaSonoma 12/16/2011 01:58 PM in reply to Wes

You call Ron Paul SANE, then you must be INSANE! show more show less
Flag cachet and 13 more liked this Like ReplyReply cHills 12/16/2011 02:19 PM in reply to WilmaSonoma

Compared to Bachman (who thinks the CIA is run by the ACLU < -- lulz) and Romney (who thinks Corporations are PEOPLE) and Perry who is just a complete moron ...Paul does look pretty sane. Ron Paul can be PRETTY drastic in some of his views but at least hes not a mindless babbling idiot who repeats the same illogical rhetoric the rest of the GOP retorts. Everyone else has been bought out (including Obama and much of the Dems); The corporate media is intentionally blocking footage of Paul because they don't want him elected. I don't agree 100% with Paul but he seems like the only one who would shake things up ..and frankly that is something this country desperately needs IMHO (we don't need the two identical parties to continue marching in the same direction). show more show less Flag USMC2k and 13 more liked this Like ReplyReply Neo Conned 12/16/2011 09:43 PM in reply to cHills This is a tough choice: choosing between the 21st Century version of 1984, or going back to 1890 when corporations essentially held the kind of power they seek to re-establish as our government. show more show less Flag 4 people liked this. Like Bill Michtom 12/17/2011 09:42 PM in reply to cHills Paul is "pretty drastic" in all of his views except imperialism. show more show less Flag 1 person liked this. Like James Barbaria 12/18/2011 08:28 AM in reply to WilmaSonoma You obviously need to learn what critical thinking means and stop believing everything on Fox, Msnbc, Cnn, CBS AND ABC. They are ALL owned by 6 companies. Have you actually researched Pauls beliefs? Maybe but I highly doubt it. Anyone that I speak to that did not support him once they did CHANGE THEIR MIND IMMEDIATELY!!! When your limited to only thirty seconds it is difficult to get your point across. GO find some of his interviews where he actually lays it all out for you. He is the smartest man in Congress. Him and Dennis Kucnach. Just go youtube him from a few decades ago. Research the history of the banking industry. Research Andrew Jackson and the issues he had with the central bank and Rothchilds. WHY do you think Aaron Burr shot Andrew Jackson? Andrew Jackson was the US Treasury and Aaron Burr the VP. WHY would our VP shoot the Treasurer? Read some quotes from Thomas Jefferson about the banking industry. Read how Woodrow Wilson realized the grave mistake he made for his country by allowing the fed in in 1913. By his own admission afterwards of his mistake. OH YA, IRS came in at the EXACT...show more show less Flag 1 person liked this. Like ReplyReply Capkelly 12/16/2011 07:06 PM in reply to Wes I was going to vote Obama, but this really scares me. The language I've read says they can detain you without counsel, without trial, indefinitely if they suspect you of anything. It does not say you have to be a terrorist. Who is to say they won't decide the Tea Party or OWS are terrorists? I am considering Ron Paul now tho I agree with him on almost nothing. But I do agree stop the endless war and Empire. show more show less Flag John Nixdorf and 5 more liked this Like ReplyReply Surprised 12/16/2011 07:40 PM in reply to Capkelly Same Capkelly. I am left of center, but I will vote for Paul if given a chance. It pains me to say it because I think he is wrong on everything but civil liberties. show more show less Flag 2 people liked this. Like ReplyReply John Alexander Thacker 12/16/2011 08:51 PM in reply to Surprised Why not register Republican to vote in a primary for Ron Paul? It's not like there's a protest vote choice in the Democratic primaries. show more show less Flag James Barbaria liked this Like Neo Conned 12/16/2011 09:45 PM in reply to Surprised Writing him in at the general election will likely work better than re-registering as Republican if one truly wants Ron Paul as president. Otherwise, I smell a skunk. show more show less Flag Like James Barbaria 12/18/2011 08:37 AM in reply to Capkelly Just look up some video interviews from Paul from a couple of decades ago. Paul just wants sound money. Remember, the fed was not here until 1913 and before that we did just fine. Matter of fact the constitution gives our CONGRESS the right to create money WITHOUT having to pay interest on said money to a private bank. Watch "money masters" on google. Watch "New American Century" to learn about pnac and it will freak you out. Ron Paul is the only sane candidate. Supports constitutional rights. Supports sound money. Supports a solid defense here at home. We are living in different times then the fifties and sixties. Our military outspends China by like 10 to 1 or something like that. We can hit ANYONE ANYWHERE with piinpoing accruacy. WHY do we need bases for strategic locations around the world? WE DON"T We are LESS safe by pissing everyone off and making little 7 year old boys into terrorists to avenge their fathers death. Iraq, Iran, Libya, etc are ALL listed under the PNAC BEFORE the towers came down. IT WAS ALREADY PLANNED> Just PLEASE research his voting record and his early interviews where he actually has time to…show more show less
Flag Like ReplyReply Bill Michtom 12/17/2011 09:40 PM in reply to Wes

You desperately need to learn more about Paul. The ONLY positive thing about him is his anti-military stance. Everything else is hateful and ugly.

10 good reasons NOT to vote for Ron Paul | MadMikesAmerica http://bit.ly/tAB35i show more show less
Flag Catseye71352 and 3 more liked this Like ReplyReply James Barbaria 12/18/2011 08:49 AM in reply to Bill Michtom

First off, your list is things that need to be LEFT TO THE STATES. THAT is how Dr Paul votes. NOT to do away with anything but to TAKE IT OUT OF THE FED GOVT HANDS. Our education system is bad BECAUSE it is run by the fed govt and NEEDS TO GO BACK TO THE STATES. As far as guns. SO WHAT. Our 2nd amendment was NOT so we could go hunting or anything. It was so we could PROTECT ourselves against a tyrannical govt. Look at the history of countries that not long after they gave up their guns their was GENOCIDE. Nearly EVERY TIME. Thomas Jefferson stated that “When your govt tries to take away your right to bear arms it is time to STAND UP and be vigilant against that government.” RON PAUL has the most consistent voting record voting with the constitution and FOR liberties and freedoms and the STATES having power. He IS what the republican party USED to be. He IS for our freedoms and liberties. He is for THE CONSTITUTION!!! The fed govt is only there to PRESERVE our liberties. They have been doing a very poor job at it. THE PEOPLE…show more show less
Flag Zachary Daniels and 1 more liked this Like ReplyReply Ryan Ziebro 12/30/2011 10:30 PM in reply to Bill Michtom

You’re citing a blog that has spelling mistakes in the subtitle to support your very broad and unspecific point? Cheers! show more show less
Flag Like ReplyReply Catseye71352 12/19/2011 04:01 PM in reply to Wes

OK, let’s talk about “civil liberties”. Any OB-GYN who believes abortion should be illegal (ESPECIALLY one who, like Paul, is old enough to remember the days of the septic abortion ward) is dangerously irrational. That, combined with his overt racism, makes it clear he only supports “civil rights” for rich white males. show more show less
Flag 3 people liked this. Like ReplyReply AP Finley 12/16/2011 11:38 AM

This is a great article, Alex, and I appreciate it. I’ve been looking at the bill, looking at public outcry, looking at the bill, for a week, trying to understand what so many writers were up in arms about. Certainly, the precedent set by the bill is not a good thing and may set the stage for future degradation of our liberties, but Skynet will not be sending Terminators in to arrest Americans tomorrow. I get it now – thanks.

How about some of your spin-less magic in regard to SOPA next? show more show less
Flag TeDeum and 5 more liked this Like ReplyReply Neo Conned 12/16/2011 09:45 PM in reply to AP Finley

Try re-reading Sections 1031 and 1032 of NDAA and get back to us. show more show less
Flag 3 people liked this. Like ReplyReply Rhuls17 12/17/2011 10:51 AM in reply to Neo Conned

(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. show more show less
Flag 3 people liked this. Like ReplyReply Andrusha77 12/17/2011 11:15 AM in reply to Rhuls17

You did know that YOU, yes YOU, can lose your citizenship pretty easily right??? You may not know it, though, but it’s possible for you to lose your US citizenship.
Denaturalization is how the US government revokes or cancels your US citizenship because you’ve done something that’s contrary to being a US citizen. There are several things that can jeopardize your citizenship:
Concealing facts or lying to the immigration officialsRefusing to testify before the US CongressJoining certain organizations — like a Terrorist organization, Tea Party, OWSReceiving certain military discharges
So, now, you lose your citizenship, and under the provisions of this bill, you can be detained indefinitely. A ONE TWO PUNCH. And no messy trial. And it’s LEGAL. show more show less
Flag 1 person liked this. Like ReplyReply Say NO to Corporate America 12/19/2011 01:49 AM in reply to Rhuls17

key Not REQUIRED to, doesn’t mean they can’t!
the thing you need to look at is the amendment, “existing law” that says YES the military can detain US citizens, picked inside US, indefinitely.

It comes down to the question on “EXISTING LAW” in NDAA amendment 1456, Jose Padilla, a US citizen, captured in US, held for almost 4 years by military without charge, Fourth Circuit Court of Appeals:
p.6
“We conclude that the President does possess authority pursuant to the
Authorization for Use of Military Force Joint Resolution enacted by
Congress in the wake of the attacks on the United States of September,
11, 2001. Accordingly, the judgment of the district court is reversed.”
(fyi, what they reversed worth including because of their reasoning, in VIOLATION of US CONSTITUTION and US LAWS)
p.8 “The district court subsequently held that the President lacks the authority to detain Padilla, id. at 180-81, that Padilla’s detention is in violation of the Constitution and laws of the United States, id., and that Padilla therefore must either be criminally charged or released.”RUDE Wake up call America!!!”Your Allotted Amount of Freedom Has Expired!” http://saynotocorporateamerica… show more show less
Flag Like ReplyReply Jeremy Privett 12/17/2011 02:02 AM in reply to AP Finley

From Alex’s other article on the matter: “The bill also authorizes the indefinite military detention of American
citizens and permanent residents if they are suspected of links to Al
Qaeda, something so controversial that even the Bush administration
balked at it, slipping Jose Padilla back into the criminal justice
system after years of military detention in order to avoid a
confrontation with the Supreme Court.” show more show less
Flag Like ReplyReply Pherringster 12/16/2011 12:02 PM

In its calm reasonableness, I find this review to be a bit naive. Taken as a single bill, perhaps NDAA is not “as bad” (tho why any bill that even suggests these types of powers should be considered is beyond me) as everyone thinks. Great, I’ll relax now and go Christmas shopping. In the greater context of attempts to control the internet, the ongoing economic crisis that is reducing the U.S. to 3rd world status (1 in 2 struggling or poor…), the vast increase in our prison system, the control of the press, and the steady grinding away of our rights in the name of “protection” against terrorism that many believe to have been concocted…I believe we are correct in adamantly opposing this bill and seeing it for what it is, one step closer to the potential for military control in this country. Why do we believe that we are immune to history in America? I have written to all my friends on facebook regarding this bill and the response was a collective yawn. Amazing. What I find disheartening is not that those in power repeat history – I expect them to. It’s that those who, united, could have the…show more show less
Flag USMC2k and 20 more liked this Like ReplyReply Capkelly 12/16/2011 07:10 PM in reply to Pherringster

People do not want to believe there. I was talking to a dear friend who just has her head in the sand. She does not want to see how Democracy is disappearing fast. She wants to go Christmas shopping and consume. She is the collective ‘yawn” you mention.
After all, how many of us want to see our nation as a Nazi Germany in the making? To me that is terrifying, yet that is how I am seeing it when I read the text of that bill. It is really bad, IMO.

Please write whitehouse.gov and ask that Obama not sign. It may not help, but nothing to lose. show more show less
Flag Neo Conned and 1 more liked this Like ReplyReply John Nixdorf 12/16/2011 08:10 PM in reply to Capkelly

Nazi Germany? Of course not. Fascist Italy or Argentina’s Dirty War (where their fascists were backed by the CIA and the Nixon, Carter, and Reagan administrations) is a much more likely outcome. The Nazis weren’t the only authoritarian state. show more show less
Flag 3 people liked this. Like ReplyReply Capkelly 12/16/2011 07:11 PM in reply to Pherringster

And yes, your mention of control of the press is well noted. The average guy is NOT HEARING ABOUT THIS. He has no clue. The press is owned by 5 corporations. The Fourth Estate is not doing its job– it also is bought and paid for. show more show less
Flag Neo Conned and 5 more liked this Like ReplyReply RSteed 12/16/2011 12:02 PM

I think Mr Serwer misreads the provisions of revised sections 1031 and 1032. One is mandatory, the other is permissive. The mandatory section (1032) exempts citizens. The permissive section(1031) does not. Glenn Greenwald on Salon.com has a clearer legal understanding of these provisions and should be read.
The Detainee provisions do 2 main things. They codify the potential use of the military to detain citizens and they codify the claimed right to hold people indefinitely without charges, and indictment, or a trial. They violate Article 3 of the Constitution and the 4th, 5th, 6th and 8th Amendments contained in the Bill of Rights.
All the revisions did was clarify the power of the executive branch to pacify Pres. Obama, who has turned out to follow Bush in way too many ways. The revisions did not take away the president’s power to hold citizens or to hold people indefinitely based upon suspicion of wrongdoing. show more show less
Flag charlesmanson and 21 more liked this Like ReplyReply Charley Carpenter 12/20/2011 10:53 AM in reply to RSteed

Section 1021(e): —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.

Section 1022(b)(1) — —The requirement to detain a person in military custody under this section does not extend to citizens of the United States.

Yaser Hamdi and Hans H. Haupt were both citizens of the US. show more show less
Flag 1 person liked this. Like ReplyReply iamraging 12/16/2011 12:49 PM

I agree with RSteed. Greenwald has this one correctly characterized – http://www.salon.com/2011/12/1… show more show less
Flag James Barbaria and 7 more liked this Like ReplyReply John Nixdorf 12/16/2011 08:11 PM in reply to iamraging

And Greenwald is a constitutional and civil rights lawyer, an expert in understanding what laws mean. show more show less
Flag James Barbaria and 3 more liked this Like ReplyReply JD234 12/16/2011 01:32 PM

Though I am a fan of Serwer’s reporting on this, which has been enormously influential, he needs to respond to Greenwald’s points today. It’s not a matter of who wins an online fight — a lot of people on the left are deeply concerned about this bill, and want to know what is the correct interpretation.

It seems that there are two ways to interpret what a bill “does” ahead of time: a close reading of what it says, and a close reading of what those in power say it will do. The courts, of course, will look at both these things when (hopefully) it comes under review.

Regarding what it says, I myself think that 1031(e) makes it fairly clear that this “affirmation” does not pertain to US citizens, whether captured here or abroad. And of course 1032(b)(1) makes clear that the new mandatory bits don’t apply to US citizens either.

Regarding what those in power clearly believe, though, the failure of the Feinstein amendments and the comments of the Senators who opposed it make it clear that the intention of Congress is that the President have the authority to detain US citizens. I would imagine this…show more show less
Flag fiverrah and 5 more liked this Like ReplyReply JD234 12/16/2011 03:17 PM in reply to JD234

Adding to my point about the expressed intent of the Senate versus the literal meaning of the words, here is Al Franken’s statement yesterday about what he himself thinks that the bill means:

“The bill that came before the Senate today still includes several troubling provisions, the worst of which could allow the military to detain Americans indefinitely, without charge or trial, even if they’re captured in the U.S.” show more show less
Flag Robert_Cratchit and 2 more liked this Like ReplyReply John Alexander Thacker 12/16/2011 08:58 PM in reply to JD234

From a practical viewpoint, before the bill is passed you want to raise alarm to defeat it; after the bill is passed you want to argue that it doesn’t actually allow all the scary things in order to prevent them from happening. show more show less
Flag Like ReplyReply WordSmith 12/16/2011 02:02 PM

Quick question: How many times was this up for vote?

There was a vote on Dec 1st with my senators voting ‘yes.’ Then – did the language change (Dianne Feinstein? recommendation?) and they voted ‘no’ yesterday. show more show less
Flag Like ReplyReply USMC2k 12/16/2011 05:48 PM in reply to WordSmith

I’m glad Feinstein changed her vote. Wrote her directly after the first vote went through.

From my understanding it passed senate and went to house, was changed 1032, then passed and went back to senate for re-approval then to Obama’s desk where it’s at now. show more show less
Flag Like ReplyReply WordSmith 12/16/2011 06:54 PM in reply to USMC2k

Thank you; I’m at work until a little later so I couldn’t/can’t spend a great deal of time really reading right now.

One of our senators who voted ‘no’ this time, his communications director left a snide comment, posting on my little two-bit local blog. The last vote I have is from the 1st of Dec. At that vote both our senators voted ‘yes.’ Now with Feinstein’s changing 1032 and the resultant re-approval, both our senators changed their vote to ‘no.’ Why, I don’t know but we’ll find out. They are two of 6 Republicans who voted ‘no.’ I’m surprised by their vote. show more show less
Flag Like ReplyReply John Alexander Thacker 12/16/2011 08:57 PM in reply to WordSmith

Oh, you must be from Idaho? show more show less
Flag Like ReplyReply Guest 12/16/2011 09:02 PM in reply to John Alexander Thacker

What gave it away? show more show less
Flag Like ReplyReply WordSmith 12/16/2011 09:03 PM in reply to John Alexander Thacker

Geez, what gave it away?
Sent from my Verizon Wireless Phone show more show less
Flag Like ReplyReply John Alexander Thacker 12/16/2011 08:56 PM in reply to USMC2k

No, Feinstein still voted yea.

On the final vote, there were 6 Republicans against and 6 Democrats and also Sanders. Of course, the real action is in amendments, not the final bill.

The Rs against were, unsurprisingly, Rand Paul and Mike Lee, plus Tom Coburn, Jim DeMint, and the Senators from Idaho, Crapo and Risch. In Coburn and DeMint’s case it was possibly more about them hating spending (they’re the rare Republican that hates *military* spending in addition to all other spending) rather than the civil liberties.

“Moderates” are actually the worst on civil liberties, with a few exception like the sainted Ron Wyden of Oregon. show more show less
Flag Like ReplyReply Wei 12/17/2011 04:38 PM in reply to John Alexander Thacker

Ron wyden, who is championing a plan to privatize Medicare with the famed Paul Ryan now? You mean that saint? show more show less
Flag 1 person liked this. Like ReplyReply charlesmanson 12/16/2011 03:57 PM

I think this is wrong. In section 1031 we have a covered person being:

(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.

Here we could interpret a protester as being belligerent (even if non-violent but loud say) and in support of hostilities against the United States. It’s a loophole, granted but it does exist. show more show less
Flag USMC2k and 1 more liked this Like ReplyReply USMC2k 12/16/2011 05:53 PM in reply to charlesmanson

Yeah that’s the section that is worrying. The media and WH were focusing on 1032 when they were talking about not being for citizens. 1031 specifically was requested by Obama to make sure it wouldn’t hinder him from prosecuting even when the American citizen issue was brought up according to Levin IIRC. Then reports came out Obama just promised he won’t use it on citizens which is much different than can’t. Even when they were arguing in the senate McCain and Graham acknowledged it could affect citizens.

But either way as you said the simple fact it is there and can be used that way is a disgrace and should not be on the books especially when they could have specifically added the language to remove all doubts. show more show less
Flag Neo Conned and 3 more liked this Like ReplyReply SteveD 12/17/2011 06:07 AM in reply to charlesmanson

I’m not a lawyer, but “belligerent act” comes from “bellus” which means “warlike.” Jesus, people, get a freaking grip. The government isn’t coming to take you away because you are protesting at a rally somewhere. show more show less
Flag Like ReplyReply Somebody 12/17/2011 08:08 AM in reply to SteveD

They could. “Return the US to the top of world manufacturing by imprisoning persons in camps and private prisons and use them as cheap labor”. Cures the economy and gets rid of the annoying dissidents. show more show less
Flag Like ReplyReply Robert_Cratchit 12/17/2011 06:35 PM in reply to charlesmanson

So Peter King would be vulnerable for his support of the IRA in Ireland, which has killed British troops. That’s one Republican down, I guess. show more show less
Flag Catseye71352 liked this Like ReplyReply Guy Fawkes 12/16/2011 07:27 PM

Provides more money to kill people …. show more show less
Flag Like ReplyReply victorydave 12/16/2011 08:06 PM

The military should NOT be allowed to operate in a domestic setting, this gives them the right! your also wrong , President cheney and his right hand meat pupit dub-ya did this to a amerikan citizen and toutured him till he lost his mind before they let have a trial , what was it 3 years before anyone found out? show more show less
Flag Like ReplyReply Guy Fawkes 12/17/2011 09:42 AM in reply to victorydave

We should have no more than 50,000 in uniform at any one time. Anymore should require a draft and each draft would be a new law with a specific end date. DoD budget should be limited to no more than $100 b ….time to stop being an imperialist armed camp. We can’t afford it and its immoral. show more show less
Flag Catseye71352 and 2 more liked this Like ReplyReply Surprised 12/16/2011 08:44 PM

Unlike the article above, this link actually contains legal analysis by an attorney. NDAA does allow for indefinite detention of American citizens. http://www.salon.com/2011/12/1… show more show less
Flag Catseye71352 and 5 more liked this Like ReplyReply James Barbaria 12/18/2011 09:06 AM in reply to Surprised

anyone whom the President determines is “a member of, or part of,
al-Qaeda or an associated force” and “participated in the course of
planning or carrying out an attack or attempted attack against the
United States or its coalition partners.” For those persons, section (a)
not only authorizes, but requires (absent a
Presidential waiver), that they be held “in military custody pending
disposition under the law of war.” The section title is “Military
Custody for Foreign Al Qaeda Terrorists,” but the definition of who it
covers does not exclude U.S. citizens or include any requirement of
foreignness. show more show less
Flag Like ReplyReply Neo Conned 12/16/2011 09:33 PM

I would feel much better about these assertions if our author had cited the specific passages he claims aren’t being interpreted correctly. We already know from FISA and the Patriot Act and many other examples that even the Constitution is readily violated in the name of national security, so why wouldn’t these passages with all these alleged loopholes not also be ignored?

I hope there is a follow-up, or else a great topic will be allowed to slip under the jackboot heels. show more show less
Flag Like ReplyReply Dave 12/17/2011 05:10 AM

The other thing this bill does not attempt to do is overturn Hamdi v. Rumsfeld which clearly upholds US citizens’ right to Habeas Corpus so that they can challenge their enemy combatant status in civil courts. Plus, it codifies that the military must present details of all “covered persons” to congress on a regular basis. So we are talking about a substantial power, but it is far from granting the president supreme executive power since that power remains checked by both the legislative and judicial branches. show more show less
Flag SteveD liked this Like ReplyReply Robert_Cratchit 12/17/2011 06:34 PM in reply to Dave

How does Awlaki feel about this? Or his American kids who were killed in a drone attack? What about that hippie doofus from California in the gulag forever? How does Padilla feel about American law and justice? How many John Yoos does Obama have to massage the law? show more show less
Flag 1 person liked this. Like ReplyReply Cletis 12/17/2011 06:12 AM

Here’s another view.
http://www.salon.com/2011/12/1… show more show less
Flag 1 person liked this. Like ReplyReply Jason Edwards 12/17/2011 07:22 AM

Adam: Section 1022 talks about American citizens. You completely left that out of your article. I woud update if I were you because you are creating falsehoods. show more show less
Flag Like ReplyReply Dave 12/17/2011 08:04 AM in reply to Jason Edwards

Jason, the only mention in Section 1022 of the bill about American Citizens in section (b)(1), which clearly states “UNITED STATES CITIZENS.—The requirement to detain a person in military custody under this section does not extend to citizens of the United States.” show more show less
Flag Like ReplyReply Andrusha77 12/17/2011 11:29 AM in reply to Dave

1022 DOES NOT MATTER. Your citizenship can easily be REVOKED. And then this entire bill does apply to you. One two punch. Wake up! show more show less
Flag James Barbaria and 1 more liked this Like ReplyReply ThePanicMan 12/17/2011 12:36 PM in reply to Andrusha77

Flagged for “wake up”. Stupid stock fringer hate dogwhistle phrase. Get a real viewpoint. show more show less
Flag Dipper Well liked this Like ReplyReply Say NO to Corporate America 12/19/2011 01:56 AM in reply to Dave

that is only for [key word], “REQUIREMENT” does not extend… doesn’t mean they can’t!

To the question on “EXISTING LAW” in NDAA amendment 1456, Jose Padilla, a US citizen, captured in US, held for almost 4 years by military without charge, Fourth Circuit Court of Appeals:
p.6 “We conclude that the President does possess authority pursuant to the Authorization for Use of Military Force Joint Resolution enacted by Congress in the wake of the attacks on the United States of September, 11, 2001. Accordingly, the judgment of the district court is reversed.”
p.8 “The district court subsequently held that the President lacks the authority to detain Padilla, id. at 180-81, that Padilla’s detention is in violation of the Constitution and laws of the United States, id., and that Padilla therefore must either be criminally charged or released.”

“Your Allotted Amount of Freedom Has Expired!” http://saynotocorporateamerica… show more show less
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