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I know you all saw the diary the other day with the video of Levin saying that Obama had specifically requested the language precluding the provisions applying to U.S. citizens be struck from the bill.  But that video isn't but one minute or so of Levin, taken from a 10-hour floor debate session.  And Levin said a damn sight more than just Obama requested they strike that language.

It's very important to remember that the detainee provisions are several separate provisions of the bill; statements made for or against one don't necessarily apply to all.  It's also helpful to know that the video in question is from November 17th; why it's suddenly all the rage right now, I don't know.  Circle Jerk of Attribution strikes again, I guess.  But I do know that anytime one is presented with a one-minute sliver of video as "proof" of anything, one should do a little more digging.

In this case, there's a lot of digging to be had, starting back in mid-November, when the Administration released this statement in response to the original detainee provisions of the FY 2012 Budget, as drafted by Congress:

The Administration strongly objects to the military custody provision of section 1032, which would appear to mandate military custody for a certain class of terrorism suspects. This unnecessary, untested, and legally controversial restriction of the President's authority to defend the Nation from terrorist threats would tie the hands of our intelligence and law enforcement professionals. Moreover, applying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets.

So we have Obama on record as opposing the indefinite military detention of American Citizens; he advocated for the removal of that section outright.  He also supported DiFi's amendment to limit the detention to people apprehended "abroad."  According to DiFi (Dec 6 or 7 session, I forget), this kerfuffle was partly behind Obama's veto threat, in response to the Armed Services Committee not adopting his request for the "abroad" language in section 1032.  Which is why she offered her amendment.

That amendment for 1032 failed, so she submitted a new one for section 1031, which passed 99-1:

On page 360, between lines 21 and 22, insert the following:

   Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens or lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.

I think a clear understanding has been gained of the problems inherent in the original bill. I think Members came to the conclusion that they did not want to change present law and they wanted to extend this preservation of current law not only to citizens but to legal resident aliens as well as any other persons arrested in the United States. That would mean they could not be held without charge and without trial. So the law would remain the same as it is today and has been practiced for the last 10 years.

So, according to DiFi, U.S. citizens and legal residents are already exempted from the provisions of section 1031 of the bill.  Levin, from that floor session November 17th, about three hours before the "proof" snippet (1:30:00 or so), agrees with her:

Administration officials reviewed the draft language for this provision and recommended additional changes. We were able to accommodate those recommendations, except for the Administration request that the provision apply only to detainees captured overseas and there's a good reason for that. Even here, the difference is modest, because the provision already excludes all U.S. citizens. It also excludes lawful residents of U.S., except to extent permitted by the constitution. The only covered persons left are those who are illegally in this country or on a tourists/short-term basis.

Contrary to some press statements, the detainee provisions in our bill do not include new authority for the permanent detention of suspected terrorists. Rather, the bill uses language provided by the Administration to codify existing authority that has been upheld in federal courts.

Here, Levin is referring to the bill as modified in response to Obama's objections, not the original version that Congress wrote and Obama threatened to veto.  So, what are Levin and DiFi talking about?  If, as the "proof" video says, Obama specifically requested the language protecting U.S. citizens be struck, what is protecting them?  The 2002 AUMF and whatever legislation (War Powers Resolution, Geneva Conventions, etc.) that delineates it; section 1031, to which all the other detainee provisions are subordinate, is the crux of all of this.  Here is Obama's statement on 1031 before it was modified:

Section 1031 attempts to expressly codify the detention authority that exists under the Authorization for Use of Military Force (Public Law 107-40) (the “AUMF”). The authorities granted by the AUMF, including the detention authority, are essential to our ability to protect the American people from the threat posed by al-Qa'ida and its associated forces, and have enabled us to confront the full range of threats this country faces from those organizations and individuals. Because the authorities codified in this section already exist, the Administration does not believe codification is necessary and poses some risk.

Here is what Levin said about section 1031:

New bill modifies detainee provisions -- modified 1031 as requested by administration to assure that provision which provides statutory basis for detention of individuals captured in the course of hostilities conducted pursuant to the 2002 AUMF -- to make sure that provisions and statutory basis is consistent with the existing authority upheld by courts and neither limits nor expands the scope of activities authorized by the AUMF.

And here is Levin in the "proof" video (about 4:42:00 or so in the C-SPAN video):

Is the Senator familiar with the fact that the language which precluded the application of section 1031 to American citizens was in the bill that we originally approved in the Armed Services committee and the Administration asked us to remove the language which says that U.S. citizens and lawful residents would not be subject to this section? Is the Senator familiar with the fact that it was the administration that asked us to remove the very language -- which we had in the bill which passed the committee, and that we removed it at the request of the administration -- that would have said that this determination would not apply to U.S. citizens and lawful residents?

So 1031 is all about codifying and clarifying the already existing detainee provisions as defined by the AUMF, but not fundamentally changing any of them.  Apparently, those provisions already exclude U.S. citizens.  So why would Obama object to the redundancy of specifying in section 1031 that section 1031 does not apply to U.S. citizens? Why would he request that language be excised, as Levin says?  IANAL and I can't claim to know what is in Obama's head. Taking a few wild guesses, though, it seems likely there is language in the AUMF that could be muddied by the specific language of excluding U.S. citizens in section 1031 of this bill.  I'm thinking the AUMF and its subordinating legislation already address how to deal with U.S. citizens.  The Hamdi case is very informative here.  

In any event, Levin goes on to say that this bill actually affords detainees more rights than before.  For example, they are all entitled to habeas hearings, with a military lawyer and judge present (no more "tribunals") and even if someone is deemed legitimately detainable, that is now subject to annual review.  The modifications to the bill allow the Commander in Chief to retain the authority to remove anyone from military detention to be transferred to civilian custody or for a civilian court trial at any time, i.e., there would actually be fewer people languishing indefinitely in military detention.  

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