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Not much to say here.  Obama apologists will find a way to excuse it.  Romney feels NDAA does not go far enough.  Write-in Dennis Kucinich for president?

The new ruling in favor of Obama's right to detain Americans in military custody comes a week after a federal judge struck it down, and ruled it unconstitutional.  The administration appealed the decision and won.

Obama Fights to Continue Indefinite Detentions, NDAA - Common Dreams:

The US government filed an "emergency stay" with the US Second District Court on Monday, in a bid to maintain its ability to indefinitely detain any person without charge or trial.

US President Barack Obama speaks before signing the National Defense Authorization Act (Photo: Agence France-Presse/Getty Images) The move comes as a desperate attempt to lift last week's federal court ruling in which Judge Katherine Forrest ruled against a provision of the US National Defense Authorization Act (NDAA) which allows the military to apprehend anyone, including US citizens, who may be assumed to be a terrorist, or affiliated with terrorists, and in turn detain them indefinitely.

The law, signed by Obama, lead to a lawsuit, which was filed by a large group of journalists and activists, spearheaded by journalist Chris Hedges, who argued that the law was unconstitutional and a threat to free speech.

Now Politico reports:
A single federal appeals court judge put a temporary hold Monday night on a district court judge's ruling blocking enforcement of indefinite detention provisions in a defense bill passed by Congress and signed into law last year by President Barack Obama.

U.S. Court of Appeals for the 2nd Circuit Judge Raymond Lohier issued a one-page order staying the district court judge's injunction until a three-judge appeals court panel can take up the issue on September 28.

Lohier offered no explanation or rationale for the temporary stay. However, the Justice Department has asked the appeals court to block the injunction issued by U.S. District Court Judge Katherine Forrest last Wednesday.

So much for the canard "it doesn't apply to American citizens," so carefully nourished and spread among unwitting believers in hope and change.  We can thank law professor Jonathan Turley for putting that to rest, not in the American media of course.  He had to go on BBC.  

So now we are left with the shreds of a constitutional republic, and nowhere to turn.   Earlier in the month Obama punted when Ben Swann asked why his administration was fighting for this power, saying the power to detain US citizens without charge or trial by the US military is not something a president should have, but still not explaining why his administration is fighting for it.  What the interview does is cut off at the knees those who would say "Obama is not aware of everything going on in his administration.  IT'S NOT HIS FAULT!"  Obama was asked point blank.  He knows about it.

More and better Democrats.  Please see details at

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Comment Preferences

  •  we need to combine... (4+ / 0-)

    homeless policy with national security we can "detain" the homeless indefinitely...

    As a nation, the U.S. consumes the most hot dogs per capita. So you'd be wise to never underestimate our powers of denial.

    by jbou on Thu Sep 20, 2012 at 12:49:46 PM PDT

  •  Would rec but for the first para (6+ / 0-)

    This is probably the most important constitutional question looking forward: are we a nation of laws or a despotic bureaucracy?

  •  I don't see how this stay (0+ / 0-)

    validates your belief that it applies to American citizens residing within within the US.

    Republican Family Values: Using the daughters from your first wife to convince everybody that your second wife is lying about your third wife.

    by jsfox on Thu Sep 20, 2012 at 12:53:37 PM PDT

    •  Well first of all I can read. n/t (3+ / 0-)
      Recommended by:
      Pluto, aliasalias, dancewater
      •  Are you sure? (1+ / 0-)
        Recommended by:

        When this first came up, quite a few of us actually looked at the legislation as actually passed, and found that it did NOT allow "indefinite detention of American citizens residing within the U.S.".

        Though some still claim it did, to my knowledge, since that time the only change is that the administration made clear it felt that way, too, in a signing statement.

        So, I, for one, would like to see some evidence, in the form of the actual language of the NDAA (sorry, won't take links to Glenn Greenwald) that proves it.

        •  OMG BUT GREENWALD = TRUTH (0+ / 0-)


          ALL HAIL.

        •  The best proof is that the govt refused to give (6+ / 0-)

          Chis Hedges the assurance that NDAA does not detain American citizens:

          The government lawyers, despite being asked five times by the judge to guarantee that we plaintiffs would not be charged under the law for our activities, refused to give any assurances. They did not provide assurances because under the law there were none. We could, even they tacitly admitted, be subject to these coercive measures.

        •  yea Obama said he would "not authorize.. (1+ / 0-)
          Recommended by:

          "not authorize the indefinite military detention without trial of American citizens" just to hear himself talk.  

          Why promise you are not going to do something you don't have the power to do anyway?  

          You are about 3 iterations behind in this debate, you are playing catch-up ball.  Everyone knows it means American citizens.  If you want to read the language to to the Turley video.  You are wasting my time.

            •  Thanks for the link Ralph Lopez. I have read (2+ / 0-)
              Recommended by:
              Lujane, dancewater

              elsewhere that the Admin is doing what you say.

              However, saw this in the linked document:

              Section 1021 affirms the executive branch's authority to detain persons covered by the 2001 Authorization for Use of Military Force (AUMF) (Public Law 107-40; 50 U.S.C. 1541 note). This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then. Two critical limitations in section 1021 confirm that it solely codifies established authorities. First, under section 1021(d), the bill does not "limit or expand the authority of the President or the scope of the Authorization for Use of Military Force." Second, under section 1021(e), the bill may not be construed to affect any "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." My Administration strongly supported the inclusion of these limitations in order to make clear beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF. Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.

              How did Supreme Court decision ACA help the 23 million still uncovered? Ask the 18,000 Doctors of PNHP -- they're not waiting, FORWARD now to pass H.R. 676, the “Expanded and Improved Medicare for All Act .

              by divineorder on Thu Sep 20, 2012 at 02:15:33 PM PDT

              [ Parent ]

    •  Too bad you are not a federal judge (2+ / 0-)
      Recommended by:
      penguins4peace, aliasalias

      Too bad you are not a federal judge, because then you could rule for the emergency stay, and allow the US military to detain US citizens indefinately.

      Of course, if you were a federal judge you might also be familiar with the Sixth Amendment of the US constitution, and have an understanding of how the NDAA conflicts with the civil rights described in the Sixth Amendment

      In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

      "The fool doth think he is wise: the wise man knows himself to be a fool" - W. Shakespeare

      by Hugh Jim Bissell on Thu Sep 20, 2012 at 01:30:53 PM PDT

      [ Parent ]

  •  what is Obama's rationale? (2+ / 0-)
    Recommended by:
    divineorder, Aspe4

    "Tax cuts for the 1% create jobs." -- Republicans, HAHAHA - in China

    by MartyM on Thu Sep 20, 2012 at 12:54:12 PM PDT

  •  The law was passed by Congress as a rider (8+ / 0-)

    to an appropriations act for the whole Pentagon operation. The President does not have the option of cherry picking which part of a law he'll follow and which not.  If, it is un-Constitutional (wouldn't be the first time), the proper process is to appeal it through the courts.  To do that, there has to be a case and opposing parties. If the Administration were to go with the ruling of one judge at a low level, the issue would remain undecided.
    If you don't want un-Constitutional laws passed, get a new Congress.

    We organize governments to provide benefits and prevent abuse.

    by hannah on Thu Sep 20, 2012 at 01:05:59 PM PDT

    •  Well Your Statement Might Work (3+ / 0-)
      Recommended by:
      penguins4peace, divineorder, Aspe4

      if, and this is a HUGE if, the DOJ wasn't fighting against and court that overturns Obama's power as POTUS. Time and time again they fight FOR their right to do these things in court.

      When opportunity calls pick up the phone and give it directions to your house.

      by webranding on Thu Sep 20, 2012 at 01:11:00 PM PDT

      [ Parent ]

    •  If he didn't want it (4+ / 0-)

      he should've stood aside when it was taken away.

      Or is this one of those things where he has to fight to keep it no matter how much he desperately wants to be rid of it?

      Pull the other one.  It's got bells on it.

      You may think that. I couldn't possibly comment.-- Francis Urqhart

      by Johnny Q on Thu Sep 20, 2012 at 01:16:20 PM PDT

      [ Parent ]

    •  you overlook the fact that he 'insisted' it be (4+ / 0-)

      included and it's a shame that people have to keep trotting out this story again and again that it was just part of a Bill that he had no part in crafting...(if you want you can skip to 2:00 to Sen. Levin)
       For those that don't look here's what Sen. Levin is saying and it amounts to him explaining that the exemption for American citizens NOT being detained indefinitely was removed "at the request of the administration".

      without the ants the rainforest dies

      by aliasalias on Thu Sep 20, 2012 at 01:31:29 PM PDT

      [ Parent ]

    •  A better Congress? (1+ / 0-)
      Recommended by:

      President Obama supports indefinite detention. He is indefinitely detaining people at Bagram; he is indefinitely detaining people at Bagram; he never opposed the indefinite detention measure in the NDAA; he didn't veto the NDAA despite its indefinite detention measure.

      What does he have to do before people accept that he supports that cornerstone of totalitarianism known as indefinite detention?

  •  But...But... (4+ / 0-)

    I thought he wasn't going to use that power.  He even wrote a NONBINDING PERSONAL MESSAGE to that effect when he signed it.  

    If that's the case why is he so intent on keeping that power that no President should have, no matter how nice a guy he is or how much he tells us to trust him, in his toolbox.

    You may think that. I couldn't possibly comment.-- Francis Urqhart

    by Johnny Q on Thu Sep 20, 2012 at 01:09:42 PM PDT

  •  there seems to be an error (2+ / 0-)
    Recommended by:
    Cedwyn, GoGoGoEverton

    in the way you report the procedural posture of the case.

    The ruling of the trial court, which struck down the offending provision, has been appealed.  With the appeal, the government askrd that the lower court's order, striking down the provision, be stayed pending the outcome of the appeal.  The stay was granted.   The appeal is still pending and has not been decided, the administration has not yet 'won' the appeal.

    •  yeabbut (0+ / 0-)

      that hurts, that really hurts, the narrative and stuff.

    •  I think you missed the point of the diary.n/t (3+ / 0-)
      Recommended by:
      aliasalias, Aspe4, dancewater
      •  no, I didn't miss the point (1+ / 0-)
        Recommended by:

        but I also think to make it sound like indefinite detention, of anyone, citizen or not, has become the law on an appeal that hasn't been heard yet is terribly misleading for readers who  think its over and all is lost.

        The Courts may yet continue to strike down indefinite detention.  I have my doubts about the Supreme Court.   But right now, this was not the end of the appeal and it is misleading to say it is.

        •  Really? I read the title and the diary and didn't (0+ / 0-)

          get that impression.

          The comments don't seem to see it that way, either.

          SW can get under some people's skin though...

          •  second paragraph (0+ / 0-)

            I think he just made an error in describing what happened:

            The new ruling in favor of Obama's right to detain Americans in military custody comes a week after a federal judge struck it down, and ruled it unconstitutional.  The administration appealed the decision and won.
            The administration appealed and won is not what has happened yet.   The appeal hasn't been decided, no court has yet said this law is constitutional.  I think that is important because it means this isn't over.

            What the administration did win is a stay, which isn't all that hard to win because laws are presumed to be valid and that is a hard presumption to overcome on a stay.  But ultimately has little to do with the final outcome, for example see the litigation on Prop 8 in California.  

            I think many people don't understand the arcane procedural twists of federal litigation.  It is far from self-evident.  So any diarist that wants to put out diaries on the course and meaning of federal case law needs to be careful to separate the procedural from the substantive battles in the case when reporting.

  •  It won't stand. (7+ / 0-)

    NDAA so clearly violates the constitution that I have every faith it's going to be struck down.

    I'm voting for Obama, and I'm fighting for Obama, but I have a lot of criticisms for him over drones, NDAA, and other aspects of foreign policy.

    I understand why people are frustrated with the people you call "Obama Apologists" but we don't have a choice between Barack Obama and Dennis Kucinich.

    We have a choice between Barack Obama and Mitt Romney.

    That's the choice we have. I have the same kinds of disagreements with Barack Obama that I would have had with FDR had I lived in the same time period, and though I'm a critic of the president and want him to move forward on some issues I don't think he's prepared to move forward on, I still think he'll go down in history as one of the greatest presidents we've ever had, and I'm not keen to replace him with Mitt Romney.

    Which again, is the choice we have.

    So make your choice.

    An Fhirinn an aghaidh an t'Saoghail. (The truth against the world.) Is treasa tuath na tighearna. (The common people are mightier than the lords.)

    by OllieGarkey on Thu Sep 20, 2012 at 01:10:35 PM PDT

    •  Do you think he should've vetoed the bill? (1+ / 0-)
      Recommended by:

      It was hung on an appropriations bill.

      I'm not being rhetorical btw, but some people who think Obama is "right of Nixon" and "the War president" never have "hey this is how it should've been done instead".

      •  Veto is not the issue (3+ / 0-)

        The issue is an apparent ongoing defense of the thing he said he didn't want, and that he wouldn't use. And he has chosen not to defend some things in court, like DOMA. I think there's a fair point of criticism here, even if the diarist takes it to extremes that I will not rec.

        "I'm addicted to placebos. I could quit, but it wouldn't matter." -- Steven Wright

        by tytalus on Thu Sep 20, 2012 at 01:30:25 PM PDT

        [ Parent ]

        •  The Unconstitutionality of the item defended (2+ / 0-)
          Recommended by:
          divineorder, tytalus

          was the explanation for not defending DOMA. I don't know what argument is being used here. In the absence of a determination that it is facially unconstitutional, the DOJ usually has to defend statutes. I have no idea why this one is not going through the "It's unconstitutional' filter. I dearly hope it is not the continued existence of AUMF.

          •  Nor does anyone else. See my comment (0+ / 0-)

            upthread, press has sued for documents to see what the arguments are.

            How did Supreme Court decision ACA help the 23 million still uncovered? Ask the 18,000 Doctors of PNHP -- they're not waiting, FORWARD now to pass H.R. 676, the “Expanded and Improved Medicare for All Act .

            by divineorder on Thu Sep 20, 2012 at 02:28:08 PM PDT

            [ Parent ]

      •  again as Sen. Levin explains on the Senate floor (1+ / 0-)
        Recommended by:

        without the ants the rainforest dies

        by aliasalias on Thu Sep 20, 2012 at 01:37:11 PM PDT

        [ Parent ]

      •  Oh I totally agree. You can't really veto an (0+ / 0-)

        appro bill.

        I think this is a complicated issue, and I've got a limited amount of time right now otherwise I'd delve further into this.

        My criticism of Barack Obama is that during the war on terror he's acting as if the constitution stops at the US Border.

        I don't think that's appropriate. I don't get the PDB, though, and I might be convinced of the necessity of it in certain circumstances.

        The issue we're talking about here, indefinite detention, can happen if habeas corpus is suspended during a time of national emergency. That happens during times of war.

        What NDAA seems to authorize is for the US military to operate with automatic suspension of habeas corpus for Americans overseas, or in the US during a time of emergency.

        Correct me if I'm wrong on any of this. I don't like NDAA, but I don't think it's as sweeping as some think it is, and I've read the bill.

        An Fhirinn an aghaidh an t'Saoghail. (The truth against the world.) Is treasa tuath na tighearna. (The common people are mightier than the lords.)

        by OllieGarkey on Thu Sep 20, 2012 at 05:16:27 PM PDT

        [ Parent ]

  •  Nope. (5+ / 0-)
    Write-in Dennis Kucinich for president?
    Nothing has changed. Obama released a signing statement while signing this bill that, as Hannah states up above, as a rider to an appropriations act.

    Nice pre-emptive strike against the "obama apologists" there, Mr. George W. Obamasuxer.

    •  Yeah, couldn't rec this because of that sentence. (0+ / 0-)

      But Hannah is wrong, see the response to her post.

      •  Hannah is right about the way the federal (1+ / 0-)
        Recommended by:

        court system works.  An unappealed district court case is law for the case, it has no binding affect over other cases at the circuit level or other circuits. So you can have, and do have,  totally different rules as to a statute's meaning in different circuits, which eventually get resolved at some point if they are important at the Supreme Court.

        I am not saying how much Obama really wants or doesn't want this provision, all I am saying, if he doesn't want it, he would probably have justice fight enough cases to get up to the circuit level, pick the best case to appeal and create a pretext to take it to the Supreme Court.  The process would look the same if he does want the power, appeal on up the line.

  •  It's absolutely astonishing considering (7+ / 0-)

    what's happening in Afghanistan with the same issue.   Perhaps it's a simple as keeping the charade of the war on terror in place.  
    Once again something that if it happened under Bush, the democratic partisans would be going absolutely bonkers.  There's no excuse, end the war on terror, end the U.S. reign of terror.

    "The Global War on Terror is a justification for U.S. Imperialism. It must be stopped."

    by BigAlinWashSt on Thu Sep 20, 2012 at 01:15:31 PM PDT

  •  I think we can all agree he will have more (1+ / 0-)
    Recommended by:

    "flexibility" after the elections to address these GOP land mines.

    "Gentlemen, you can't fight in here! This is the War Room." - President Merkin Muffley

    by Farkletoo on Thu Sep 20, 2012 at 01:15:31 PM PDT

  •  Hey Ralph, how come every time I check out your (0+ / 0-)

    profile, the link to your website doesn't work?

  •  Dennis Kucinich showed his true colors when he (0+ / 0-)

    supported the Ohio GOP's redistricting model because he thought it would benefit him even though that redistricting model was a blatant plan for disenfranchisement.  Kaptur is also a great Democrat and he tried to drag her name through the mud.  

    •  asdf. I miss Kucinich, warts and all. He was (0+ / 0-)

      a constant advocate for truth and public accountability of the MIC, and we need more like him in that regard in the House and Senate.

      However, I think Ralph should have probably left that mention out.

      Of course there are other options beside writing in Kucinich...

      How did Supreme Court decision ACA help the 23 million still uncovered? Ask the 18,000 Doctors of PNHP -- they're not waiting, FORWARD now to pass H.R. 676, the “Expanded and Improved Medicare for All Act .

      by divineorder on Thu Sep 20, 2012 at 02:37:53 PM PDT

      [ Parent ]

  •  I'm torn between (1+ / 0-)
    Recommended by:

    wondering if he's merely testing the constitutional limits of this law or whether this is an executive power grab. There are arguments for both of those outcomes.

    "In the depth of winter I finally learned that there was in me an invincible summer."- Albert Camus

    by valadon on Thu Sep 20, 2012 at 01:27:35 PM PDT

  •  Congress first tried to give this detention power (1+ / 0-)
    Recommended by:

    directly to the Pentagon, and used the military appropriations bill as a hostage to deter a veto.

    Democratic senators (Feinstein in particular) tried to pull the measure's teeth - and were outvoted. The next gambit was to shift the power to detain from the generals to the C-in-C... that worked.

    Not a touchdown for our side, but given the Reptile's majority in the House and their super-minority power in the Senate, it can at least be said that PBO "intercepted their pass".

    We need to keep fighting this, and I can only offer conjecture about why the DOJ is defending it: election year politics, keeping "possession" of the detention power until Congress recovers it's sanity...

    Go ahead and vote for the Green Party candidate, if you must. But I am withholding judgement for the time being.

    PBO is still the guy who tried to shut down Gitmo (blocked by Congress) and put KSM on trial in New York (also blocked by Congress).


    Have you noticed?
    Politicians who promise LESS government
    only deliver BAD government.

    by jjohnjj on Thu Sep 20, 2012 at 01:29:00 PM PDT

  •  Just a note: Forrest didn't actually rule (1+ / 0-)
    Recommended by:

    against indefinite detention of American citizens as such... She ruled that the clause was overbroad e.g. enough to include journalists doing their job when they should be covered by the First Amendment.*   In other words, the case doesn't deal with the constitutionality of indefinite detention at all, and in fact assumes it.  I've covered this more detail here, but to wit:

    Military detention  based on  allegations  of  "substantially supporting"  or "directly supporting the  Taliban, al-Qaeda  or  associated  forces",  is  not encompassed  within  the  AUMF  and  is  enjoined  by  this  Order regarding  §  1021(b) (2).  No  detention  based  upon  § 1021(b) (2) can  occur.
    Which itself is a little confusing (is the first sentence the scope of the decision or the second one?)  Earlier in the decision she even suggests a quick fix to keep indefinite detention legal!

    In the decision Forrest rules almost exclusively on the basis of the First Amendment; the extent of her discussion of the Fifth Amendment and Due Process is only that the provision's extent is "unclear", and thus people could violate it without knowing.  I don't think, in light of other cases, that her argument is going to gain much traction.

    Worse still, the DOJ's arguments in the case were troubling (more on that in my link above), in that they're not even willing to concede First Amendment guarantees.  Yikes.  I'm not bothered by the appeal or the request for a stay, which are pretty standard legal stuff, but by their dismissing of what should be a baseline of constitutional protections.

    Saint, n. A dead sinner revised and edited. - Ambrose Bierce

    by pico on Thu Sep 20, 2012 at 02:08:55 PM PDT

  •  Grossly misleading diary. (0+ / 0-)

    Where's the part where Obama says he supports indefinite detention?

    Mentioning that Obama signed NDAA without mentioning his signing statement against indefinite detentions is misleading.
    Suggesting that he supports it now is misleading. The video you posted shows that. Obama said in the video that he still disagrees with indefinite detentions and that he believes the courts will eventually agree. Pretending he didn't say those things is misleading.

    In other words, the Justice Department is allowing this to work its way to the Supreme Court, where it will likely be declared unconstitutional. Obama makes it clear in his video that's what he wants and expects to happen.

    Do you want this law to reach the Supreme Court where it will be declared unconstitutional? Yes? Then you should support Obama's position and current course of action.

    We saw a lot of these kinds of distortions and exaggerations about Obama from the third-party cynics during Obama's first two years, and I don't think it helped accomplish anything.  

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