By an overwhelming margin of 406-17, the House has voted to place deliberations on NDAA behind closed doors and away from public scrutiny, where lawmakers will attempt to secretly reconcile Senate and House versions of a bill that gives the military the authority to detain U.S. citizens without due process.
And, unsettling as such news may sound, this is actually the good news.
The bad? According to Donny Shaw at OpenCongress, the Obama administration is not strongly opposed to giving the military such authority:
Contrary to popular perception, the Obama Administration is not strongly opposed to the provisions in the bills that would authorize indefinite military detentions for U.S. citizens. Here’s what the Administration had to say in a Statement of Administrative Policy on the Senate bill:
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. After a decade of settled jurisprudence on detention authority, Congress must be careful not to open a whole new series of legal questions that will distract from our efforts to protect the country. While the current language minimizes many of those risks, future legislative action must ensure that the codification in statute of express military detention authority does not carry unintended consequences that could compromise our ability to protect the American people.
In other words, they’ll take it and recommend that Congress passes clarifying legislation in the future, which, of course, will never happen.
I fully agree with Shaw's interpretation, for it seems clear the Obama administration is not opposed to giving the military the authority to detain citizens; rather, the administration seems to think such authority already exists, and that codifying it in NDAA will open it up to legal vulnerabilities.
What's most upsetting is that the Obama administration, according to Shaw, is opposed to extending indefinite military detention to a particular class of terror suspects that are NOT U.S. citizens. In other words: it could stomach codifying indefinite detention of U.S. citizens, but won't stomach mandating indefinite detention of suspects outside the U.S.
The proof? From the administration statement above:
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.
Again, Shaw with a precise explanation:
As you can read for yourself here, Section 1031, affirming the “authority of the armed forces of the United States to detain covered persons…” does not contain an exemption for U.S. citizens. Section 1032, mandating the military detention authority be used for terrorism suspects, does, but that is the section that the Obama Administration says must be removed or else he will veto.
If this is an accurate reading – and I believe it is – this means one thing: a secretive conference committee will now decide whether or not the U.S. military is given legislative authority to indefinitely detain U.S. citizens.
Good night and good luck. Emphasis on the good luck.
-----------------------------------
Follow me on Twitter @David_EHG
-----------------------------------