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That’s right. Is this is OK with you? Is this what you think we stand for as a country?

The NDAA is beyond radical so defending it cannot coincide to a principled rejection of the Bush polices this whole site was once against until now. Now that Barack Obama and most Democrats in Congress have embraced them it's suddenly a different story for some. Principled?

Not only are all of the excuses I hear about the NDAA off base(creative theories about Jurisprudence that might make one feel good or super wonky but the torturous actual historical record supports what I, the ACLU, Human Rights Campaign, and Amnesty International are saying regarding the NDAA)these are things you might hear from John Yoo or the Heritage Foundation.

Under the NDAA there is no doubt that a U.S citizen can be indefinitely detained if they are overseas. Anyone from a foreign country can be detained whether overseas or within U.S. borders. You also actually do have to look at the real implications behind President’s Obama’s signing statement which doesn’t really rid the NDAA of the possibility of detaining American citizens at all.

Obama Signs Controversial Defense Bill On New Year's Eve

Detention of American citizens. This was the most controversial section, of the bill, and the most misreported. A Senate compromise amendment to the bill leaves open the question of whether the 2001 Authorization to Use Military Force against the perpetrators of the 9/11 attacks authorizes the president to detain American citizens suspected of terrorism who are captured on American soil. This matter may never be settled, as the risk of getting smacked down by the courts may dissuade presidents with even more expansive views of executive power than Obama from ever trying it.

In his statement, Obama says he wants "to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens." He continues: "Indeed, I believe that doing so would break with our most important traditions and values as a Nation." Note what the president does not say: that indefinitely detaining an American suspected of terrorism would be unconstitutional or illegal. Obama's signing statement seems to suggest he already believe he has the authority to indefinitely detain Americans—he just never intends to use it. (In the context of hot battlefields the courts have confirmed he does indeed have that power.) Left unsaid, perhaps deliberately, is the distinction that has dominated the debate over the defense bill: the difference between detaining an American captured domestically or abroad. This is why ACLU Director Anthony Romero released a statement shortly after Obama's arguing the authority in the defense bill could "be used by this and future presidents to militarily detain people captured far from any battlefield."

Look at what Adam Serwer pointed out and read real carefully if you don’t understand the implications. Is it OK with you that Obama believes he already has the power to indefinitely detain Americans but he won’t be the one to do it? Is passing the ball to a future president OK if the end justifies the means--of George W. Bush? That’s not hyperbole, all of these excuses are about continuing a BS Global War on Terror started by GWB.

So what do you want me to say? I’m not going to sugar coat it, because it’s covered in oil, blood, and wasted treasure the unemployed in our country desperately need right now like they need their rights and protections under the law.

If the Hamdi vs Rumsfeld case above happens to be trotted out as another excuse, let it be known that this affirmation by the courts is what Obama mentioned in his signing statement erroneously. Why? What Obama didn’t mention was that this affirmation was only in the context of a battlefield.

The NDAA takes indefinite detention much further to domestic territory.

That case, however, involved an actual battlefield in an actual war. The current version of the defense funding bill—formally known as the National Defense Authorization Act, or NDAA—goes further. It says the military can detain anyone deemed to be "a part of" or deemed to have "substantially supported" Al Qaeda, the Taliban, or "associated forces." Terror suspects would not have to be on an actual battlefield or fighting in an actual war, as Hamdi was, to be detained by the military. And although Americans, unlike foreigners, are not required to be held in military detention if apprehended on American soil, the NDAA affirms that they can be, based on the 2001 Authorization to Use Military Force (AUMF) against Al Qaeda.

Another thing I am getting sick of hearing about is the cited language in 1021 section (e) in the NDAA that is trotted out constantly to show that this gives no new authority when it comes to detainee rights and who can be detained. This is supposed to be a “big clarification” as in “See you’re overreacting!” but that was never even the point because this is the same existing authority Bush used to hold detainees. This was clearly stated by even Glenn Greenwald to Cenk Uygur in my first diary on this subject. The authority Bush used like what this administration just codified with the NDAA goes all the way back to the 2001 AUMF for the war in Afghanistan.

And now I’m going to address what’s surely to come in more creative legal theories about how this NDAA isn’t such a big deal because of just a possible interpretation of the law. The problem is that when the law is this vague and open to interpretation it tends to go the route of abuse and this is the pattern in the real world. Risking solid planks involving our Constitution and the Bill of Rights to continue a Bush/Obama style BS Global War on Terror hardly sets a good precedent to preserve those said planks in the future. Like a lot with this administration this is probably the most dangerous false hope there is.

Even the smartest wonkiest law student who loves the Democratic party so much he’d be willing to suspend his knowledge of how the law has actually been interpreted  for the worse as opposed to its stated purpose since 2001, can’t deny this.

Democrats took the House and Senate in 2006. They were outraged at GWB’s abuses of authority, warrantless wiretapping, and the war in Iraq, or so they said. So they won and immediately Nancy Pelosi took impeachment off the table even though the Geneva Conventions was violated for an illegal immoral war.

Democratic leadership told us they’ll get to righting warrantless wiretapping in 2008 when they had the votes. They got to it all right and decided to permanently forget all about the 4th amendment altogether and reaffirm FISA and the Patriot Act. Then Senator and candidate Obama said he was against it and that he would even filibuster it. However, we know now that was all fake bluster and it passed and the 4th amendment has never recovered.

President Obama has reauthorized FISA and the Patriot Act multiple times as President as well. The authority for FISA that was used then by both parties as it being used now by both parties for the NDAA in the first place came from that same 2001 AUMF for the war in Afghanistan. It looks like Rep Barbara Lee knew what she was talking about on multiple fronts when she voted against it.

Why do I bring this up now? Well within that same framework came the same authority being cited right now by this Democratic freewheeling Executive that former Attorney General Alberto Gonzales invoked for his interpretation of FISA but don’t worry. Attorneys for the Bush WH John Yoo and David Addington told us not to worry then because of how the law might be interpreted either way and “they really know the law” and “we just don’t understand the nuances” which were both clear as day and murky as the deep, so we were told which was BS, familiar sounding BS.

The Freewheeling Executive

In fact, Gonzalez was referring to the four-year-old Authorization for the Use of Military Force, or AUMF, enacted the week after the 9/11 attacks. With Afghan operations looming, Congress at that time gave the President power to use all necessary and appropriate force, but only against those who had planned, authorized, committed, or aided the 9/11 attacks.


Start with the NSAs spying. Gonzalezs legal reasoning is not limited to U.S.-to-overseas communications. Indictments issued earlier this year against home-grown extremists in California with no foreign connection remind us that conspiracies need no foreign link to pose a threat. If the NSAs legal rationale hinges on the scope of the terrorist threat, the administrations decision to exclude entirely domestic communications from its program was a matter of grace, which could be retracted at any time. Indeed, Secretary of State Condoleezza Rice on Sunday rejected any safe haven for terrorists operating here, seemingly including the safe haven of the Fourth Amendment.

Earlier this summer, in oral argument in the case of enemy combatant Jose Padilla, Judge Michael Luttig asked Solicitor General Paul Clement whether the United States is a battlefield in the War on Terror. Without skipping a beat, Clement said yes and relied on the AUMF. In Clements view, the government can pick up and detain anyone, even a citizen, in the United States, as if the nation were a savage battlefield and the ordinary law a nullity. Judge Luttig and his colleagues accepted this argument and authorized Padilla’s indefinite lock-up a decision that since then has been thrown into question by evidence that the government was manipulating the facts.

And if indefinite detention, why not assassination? Two former administration lawyers, Jack Goldsmith and Curtis Bradley published an analysis in the Harvard Law Review of the AUMF that tracks Gonzalezs sweeping position. Buried deep in footnote 325, they explain that the AUMF has the potential to authorize the President to target and kill persons covered by the AUMF found in the United States. They caution that nonthreatening enemies ought to be arrested, per international law, but also argue that the President cannot be checked by international law. The scope of who falls under the AUMF, at least according to Gonzalez, is troublingly broad: anyone affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda. Following this logic, a reporter whose story supports al Qaeda or a lawyer for a criminal defendant charged with terrorism related-offenses are legitimate candidates for assassination.

It’s obvious but some might ask why I am comparing Alberto Gonzales and President Obama? You mean besides the fact that after taking office President Obama immediately reaffirmed Executive Order 13233 that was drafted by Gonzales and issued by President George W. Bush on November 1, 2001? And he did so even after it was partially struck down in 2007.

It’s no wonder CREW(Love their work and Melanie Sloan) is on his case and he gets a failing grade on transparency because of their use of state secrets from the Brennan Center for Justice. Also Executive Order 13233 limits access to Presidential records so there may be many things we may not ever find out. Not exactly the transparency we were promised from candidate Obama so the comparison is valid on multiple fronts.

We all know Alberto Gonzales “can’t recall anything” and his laundry list of crimes is very long but the problem for President Obama is that I recall even recent events that directly coincide with the bolded passages above invoking two former Bush lawyers, Jack Goldsmith and Curtis Bradley that used the same authority in footnote 325 involved with the assassination US citizen Anwar al-Awlaki by this administration today.  You see, these comparisons are not outrageous. This is on the record.

If the authority from this 2001 AUMF and its abuses bothered you then, but it doesn’t bother you now when I just showed you how it directly relates then that is actually what shows you don’t have very many principles on these issues thus qualifying my title. There are too many dead people and people who are permanently psychologically damaged by the crimes performed with this same horrendous authority being codified with the NDAA to really respect your intellectual academic(John Yoo was also an academic) exercise in Jurisprudence which I don’t find very strong anyway. Neither do most credible legal organizations that fought against these abuses during the Bush years.

However now you say the ACLU are “Just in it for the money?” They just hate Obama? That they just don’t understand the deep nuances in the law?

That if only we critics did, we would have gotten back the 4th amendment when we had our Super-majority in 2009? We didn't. Democrats helped destroyed it. They obviously were never were against this authority as much as they claimed.

This proves the point that rights are easy to take away but almost impossible to restore with our corrupt system, its sellout politicians, and the people who enable them by making excuses for them.

Not all Democrats of course as Senator Russ Feingold tried to stop FISA, but certainly not enough Democrats spoke up to support him or had enough principle to do what was right to restore our right to privacy. FISA is still being used against US citizens today. That’s where this intellectual exercise in theoretical Jurisprudence fails and has an actual historical record we can see with our eyes that failed this country.

So excuse me if I don’t want to play this game. It’s stupid, immoral, and it’s not what we stand for.

BTW, I shouldn't have to say this, but please be respectful. No name calling or ad hominem will be tolerated in this diary. Don't be a dick.

Originally posted to The Amateur Left on Thu Jan 05, 2012 at 07:53 AM PST.

Also republished by The Rebel Alliance, Anonymous Dkos, Friends of Keith Olbermann and Rachel Maddow, and Anonymiss Dkos.

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