Defense authorization bill S.1867; WH threatens to veto

[Winehole23]

http://www.gpo.gov/fdsys/pkg/BILLS-112s1867pcs/pdf/BILLS-112s1867pcs.pdf


http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/saps1867s_20111117.pdf

[Winehole23]

The Senate’s new NDAA language (http://www.politico.com/static/PPM156_11_15_11_ndaa_revised.html) changes almost nothing. Yes, there are some technical adjustments, which Bobby has described in detail (http://www.lawfareblog.com/2011/11/detention-bill-sasc-ndaa/), and some of these may serve to lessen slightly the irrational burden this bill would put on those who have to handle detainee affairs and terrorism investigations both domestically and abroad. But the core of the tinkered-with provisions remains the same. The bill still authorizes law of war detention. It still seeks to make military detention mandatory for certain categories of cases. And it still seeks to encumber transfers of Guantanamo detainees out of American custody. The first of these is a good idea. The second two are very bad ideas. And the problem with them is not the specific language with by which the bill seeks to do this. The problem, rather, is the core policy objective. Gumming up the mandatory detention provision with requirements that seek to regulate when it applies and when it will–and will not–require an interrogation to be interrupted so that a different agency can take custody of a detainee really doesn’t help. It only layers micromanagement on top of the underlying stupidity. Limiting the transfer restrictions to Fiscal Year 2012 does not make them any less counterproductive if, as Defense Secretary Leon Panetta put it in an appropriately grouchy letter (http://www.politico.com/static/PPM229_111115_dodletter.html), “Congress simply continues to insert these restrictions into legislation on an annual basis without ever revisiting the substance of the legislation.” The problem here is not the trees, but the forest.http://www.lawfareblog.com/2011/11/why-the-new-senate-detention-language-still-stinks/

[Winehole23]

http://thehill.com/blogs/floor-action/senate/196207-senate-votes-to-advance-department-of-defense-authorization-bill

[Halberto]

http://randomgifs.com/images/catdr.gif

[boutons_deux]

but Human-Americans' rights are inalienable!!

God, you gave those right to us, please help us.

[Winehole23]

http://www.emptywheel.net/2011/11/18/the-detainee-debate-heats-up-the-rule-of-martial-law-vs-the-unitary-spookery/

[Winehole23]

but Human-Americans' rights are inalienable!!

God, you gave those right to us, please help us.boutons takes a mischievous delight in mocking those he only pretends to sympathize with. He crushes them under his corporate-American boot heel, while calling for reinforcements from his friends in the MIC/police state/VRWC who keep him warm and cozy in the big pile of $$$ he has stolen from his employees.

[spursncowboys]

http://www.emptywheel.net/2011/11/18/the-detainee-debate-heats-up-the-rule-of-martial-law-vs-the-unitary-spookery/

can't trust what someone says who a. plays frisbee golf; and b. meets, dates and marries a man she meets while playing frisbee golf

[Winehole23]

fair enough

[spursncowboys]

So a budget is passed bi-partisanly. Of course Obama will veto it. Just shows that both parties are trying to create the feel of a lame duck congress. That way they can both just point fingers. I can't say I argue with him vetoing this though.

[Winehole23]

why not?

[spursncowboys]

That early retirement part of the budget gave me hope. I will one day be called mr. spursncowboys. and not by my rank. yes that is my real last name btw.

[TeyshaBlue]

Anybody else read the headline as if Winehole was going to veto the bill?




Figures...it was just me.

[Winehole23]

I did.

[Winehole23]

(Thanks for noticing, doubt anyone else will.)

[TeyshaBlue]

:lol

[Bender]

Figures...it was just me.no, it was me too. He will always be "WH" ....

[LnGrrrR]

Of course the WH would want to veto this law... then it might actually get overturned. Far better for them to just do this without any sort of legal backing.

[Winehole23]

...according to Senator Carl Levin, it was the Obama administration which told Congress to remove the language in the original bill which exempted American citizens and lawful residents from the detention power. See the C-Span video of the debate (http://www.c-spanvideo.org/program/SenateSession4951) on the floor of the Senate, at 4:43:29.http://volokh.com/2011/11/30/defense-bill-will-allow-president-to-indefinitely-detain-american-citizens/

[LnGrrrR]

http://volokh.com/2011/11/30/defense-bill-will-allow-president-to-indefinitely-detain-american-citizens/

Nice. Way to go Obama. :lol I wonder why he even cares about putting it into law... after all, the Presidency has already claimed power to this in respect to Bush w/ Jose Padilla. Why have it enshrined in law when you can just do it secretly?

It's shit like this which makes me very leery of voting for Obama. Then again, I know most Republican nominees would be as bad. I guess I'll pull for Huntsman. :lol

[boutons_deux]

Barry blocks it, Repugs will say that fist-bumping terrorist Barry loves/supports terrorism and hates America.

[boutons_deux]

If overturned, then it's Exec signing statement opportunity.

[boutons_deux]

Come on, God, how can you let these assholes take away those "inalienable God-given rights" you gave us? God giveth, but man can taketh away? Time to Man up, Dude!

[Winehole23]

The Constitution says quite clearly: 'In the trial of all crimes -- no exception -- there shall be a jury, and the trial shall be held in the State where said crimes have been committed.' Clearly, the Founding Fathers were talking about a civilian court, of which the U.S. person is brought before in its jurisdiction.

They talk about treason against the United States, including war in the United States. The Constitution says it "shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort."

The following sentence is instructive: No person -- 'No person,' it says -- 'shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.' I would say that pretty clearly, 'open court' is likely to be civilian court.

Further, the Constitution goes on, that when a person is charged with treason, a felony, or other crime, that person shall be 'removed to the State having Jurisdiction of the Crime' -- once again contemplating civilian, state court and not the U.S. military. As everyone knows, we have amended the Constitution many times. The Fourth Amendment of the Constitution is instructive here. It says: 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures' -- including, by the way, the seizure of the person -- 'shall not be violated, and no Warrants shall issue, except upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

Now, in section 1031(b)(2), I do not see the requirement for a civilian judge to issue a warrant. So it appears this legislation directly violates the Fourth Amendment of the Constitution with regard to those rights which are inalienable, according to the Declaration of Independence, and should be inviolate as your birthright as an American citizen.

Recall the Fifth Amendment, which says: 'No person' -- by the way, remember, 'no person'; there is not an exception here. 'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment,' hear the words, 'of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War' -- meaning there is a separate jurisdiction for U.S. citizens who are in the uniformed service of the United States. But unless you are in the service of the United States, you are one of those 'no persons' who shall be answerable for a 'capital' or 'infamous crime,' except on 'indictment of a Grand Jury.'

The Sixth Amendment says: 'In all criminal prosecutions' -- not some, not by exception, 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' ... I go on to these because I regard all of these rights as inherent to U.S. citizens, granted to them by their birth in the United States.http://www.theatlantic.com/politics/archive/2011/12/ceding-liberty-to-terror-senate-votes-against-due-process-rights/249388/#

[Winehole23]

And the terrorists have won. If a primary purpose of terrorism is to induce fear, and Americans are willing to give up their most precious freedoms in the name of fighting terrorism, how is this anything less than a monumental victory for our enemies?

Most who support this new power for the federal government — and especially Graham — also agree that what we call the “war on terror” is a war that will last forever. In this light, this new legislation poses a particular danger, or as Sen. Paul explains: “During war, there has always been a struggle to preserve constitutional liberties. During the Civil War, the right of habeas corpus was suspended … Fortunately, those actions were reversed after the war.”


Paul then notes:

The discussion now to suspend certain rights to due process is especially worrisome, given that we are engaged in a war that appears to have no end. Rights given up now cannot be expected to be returned. So we do well to contemplate the diminishment of due process, knowing that the rights we lose now may never be restored.Read more: http://dailycaller.com/2011/12/02/the-terrorists-have-won/#ixzz1fSVTv5lq

[Winehole23]

Bush lawyers offered a theory for why due-process-free imprisonment was justifiable. The theory had these four fairly simple premises:
(1) Terrorism is not primarily a criminal offense. It is an act of war. Thus: We Are At War With The Terrorists.
(2) Those who try to harm the U.S. as part of this War are combatants and Terrorists — not criminals — and are thus entitled to no due process or any other rights to which accused criminals are entitled. It is the U.S. military (led by the Commander-in-Chief) — not courts — which decides who is and is not a combatant and Terrorist.
(3) Whether someone is a combatant or Terrorist is decided by only one thing: the President’s unilateral decree. Once the President decrees someone a combatant or Terrorist — including one of his own citizens — that person by definition becomes one, and he can then be treated as such without any further judicial process or Constitutional protection. Once that presidential accusatory decree issues, protections of the Constitution and law disappear. In sum, presidential accusations that someone is a Terrorist are the same as proof and a verdict of guilt.
(4) Unlike virtually every other war ever fought, the “battlefield” of this War is not found where opposing forces are shooting at each other, but is rather defined as: wherever an accused Terrorist is found anywhere in the world. Thus, the President’s battlefield powers — which are limitless: unilateral targeting for death, indefinite imprisonment without charges, spying on communications without any oversight – are not confined to any geographical location, but instead can be applied everywhere. Wherever an accused combatant or Terrorist physically exists — sleeping in a bed, riding in a car with his children, thousands of miles away from any actual shooting — is the “battlefield.”
Those were the once-controversial theoretical premises offered repeatedly by Bush lawyers and other defenders to justify the Guantanamo detention system. More generally, these theories were (and remain (http://www.salon.com/2011/12/01/congress_endorsing_military_detention_a_new_aumf/singleton/undefinedsingleton/#comment-2399326)) the heart and soul of the neocon view of the War on Terror. Once you accept those four premises, there is no coherent way to oppose Guantanamo. So here is my question:


At this point, do Obama defenders reject any of these four premises? I mean this literally: I cannot count how many times I have heard exactly this same theory offered by Obama supporters justifying his assassination powers (the President is entitled to target citizens for death because we are at War, and once you take up arms against the U.S. (meaning: once the President accuses you of doing so) you have no due process rights). Indeed, there simply is no possible way to defend the assassination powers claimed by Obama without embracing each of these theories. And therefore, here is what Obama lawyers said on Thursday:

U.S. citizens are legitimate military targets when they take up arms with al-Qaida, top national security lawyers in the Obama administration said Thursday. The lawyers were asked at a national security conference about the CIA killing of Anwar al-Awlaki, a U.S. citizen and leading al-Qaida figure. . . .
The government lawyers, CIA counsel Stephen Preston and Pentagon counsel Jeh Johnson, did not directly address the al-Awlaki case. But they said U.S. citizens do not have immunity when they are at war with the United States.
Johnson said only the executive branch, not the courts, is equipped to make military battlefield targeting decisions about who qualifies as an enemy.
When Obama lawyers refer to “U.S. citizens who take up arms with al-Qaida,” what they mean is this: those whom the President accuses (in secret, with no due process or evidence presented) of having taken up arms with al-Qaida. When they refer to “battlefield targeting decisions,” they do not mean a place where there is active fighting, but rather: anywhere in the world an accused Terrorist is found (leaving no doubt about that, Johnson decreed (https://twitter.com/#%21/deviatar/status/142262971287076865) that the limits of “battlefield v. non battlefield is a distinction that is growing stale“). In other words: the whole world is the battlefield, a claim Obama officials have long embraced (http://emptywheel.firedoglake.com/2010/06/29/elena-kagan-and-lindsey-graham-on-the-gwot-the-sequel/), and someone is a Terrorist the minute the President declares him to be one: the President is the sole judge, the sole jury, and now even the sole executioner.


So my question to defenders of Obama’s assassination powers is this: which of those four core Bush/Cheney War on Terror premises do you reject, if any? Given the theories used to justify Bush/Cheney powers — ones that were just repeated almost verbatim by Obama lawyers when asked about the Awlaki assassination — how can anyone coherently have objected to the Bush/Cheney Guantanamo detention system but support Obama’s assassination powers now? Indeed, if anything, the Obama assassination powers are more extremist than the Guantanamo detention system; that’s true for two reasons: (1) Bush/Cheney imprisoned foreign nationals at Guantanamo, whereas Obama has targeted U.S. citizens with death (foreign nationals captured on foreign soil have – according to (http://supreme.justia.com/us/339/763/case.html) the Supreme Court (http://www.salon.com/2010/02/01/collins_5/singleton/) – far less Constitutional protections (if they have any) than U.S. citizens, who retain Constitutional protections no matter where they are); and (2) death-by-CIA-drone is obviously a more draconian deprivation than imprisonment at Guantanamo. In sum, how is it possible to support Obama’s assassination powers without embracing each of those four theories used to justify Guantanamo?


Once you have embraced those theories offered by Obama lawyers, you have, by definition, embraced the Bush/Cheney War on Terror (indeed, as Marcy Wheeler documents (http://www.emptywheel.net/2011/12/02/why-the-iraq-aumf-still-matters/), those Obama lawyers even explicitly defended the very theories used by Bush DOJ lawyers to justify the Bush NSA eavesdropping program and sweeping secrecy powers; Obama DOJ lawyer Marty Lederman, for instance, announced: because of secrecy powers, “we’re in armed conflicts with some groups the American public doesn’t know we’re in armed conflict with“). During the Bush presidency, I spent years arguing — without opposition from a single progressive, literally — that the two most radical and dangerous premises ushered in by Bush/Cheney were these: (1) the whole world — including places where this is no shooting or fighting — is now deemed a War battlefield (which means unlimited Presidential war powers exist everywhere); and (2) presidential accusations of being a Terrorist are now deemed the equivalent of binding verdicts of guilt. Is there any possible way to support Obama’s assassination powers without embracing both of those notions? I’m genuinely interested in hearing answers to that question.
http://www.salon.com/2011/12/03/the_we_are_at_war_mentality/singleton/

[Winehole23]

Outlawry is making a revival, in the sense that the state is explicitly placing people -- US citizens -- beyond the protection of the law.

Caput gerat lupinum.


(I know I've said it before, but no one replied the first time.)

[Winehole23]

http://www.spurstalk.com/forums/showthread.php?p=5363065&highlight=outlawry#post5363065

[Winehole23]

http://www.spurstalk.com/forums/showthread.php?p=4646149&highlight=outlawry#post4646149

[Winehole23]

times, I should say

[Winehole23]

http://www.spurstalk.com/forums/showthread.php?p=4065300&highlight=outlawry#post4065300

[Winehole23]

http://www.spurstalk.com/forums/showthread.php?p=4056620&highlight=outlawry#post4056620

[Winehole23]

The normalization of torture represents a reversion to outlawry and self-help, hence, to the barbaric origins of Anglo-Saxon justice.http://www.spurstalk.com/forums/showthread.php?p=3399747&highlight=outlawry#post3399747

[Wild Cobra]

Wow...

10 in a row. What's up? Bored?

[Winehole23]

linking relevant material. hope you don't mind -- you're not required to read anything.

[Winehole23]

theme: return of outlawry.



chime in if you like, counselor.

[Wild Cobra]

theme of outlawry. chime in if you like, counselor.
Sorry, not interested right now. Hitting the forum every once in a while as I watch a new DVD box set I got. Almost finished with the first season of It Takes a Thief (http://www.imdb.com/title/tt0062572/). Loved the show as a kid. Don't remember any of the first season though.

[Winehole23]

have fun, 'ese

[Winehole23]

http://www.spurstalk.com/forums/showthread.php?t=145894&highlight=outlawry&page=4

[Winehole23]

In one of the least surprising developments imaginable, President Obama – after spending months threatening to veto the Levin/McCain detention bill – yesterday announced that he would instead sign it into law (http://www.guardian.co.uk/world/2011/dec/15/americans-face-guantanamo-detention-obama?CMP=twt_gu) (this is the same individual, of course, who unequivocally vowed (http://tpmelectioncentral.talkingpointsmemo.com/2007/10/obama_camp_says_it_hell_support_filibuster_of_any_ bill_containing_telecom_immunity.php) when seeking the Democratic nomination to support a filibuster of “any bill that includes retroactive immunity for telecom[s],” only to turn around (http://www.nytimes.com/2008/07/02/us/politics/02fisa.html) – once he had the nomination secure — and not only vote against such a filibuster, but to vote in favor of the underlying bill itself, so this is perfectly consistent with his past conduct). As a result, the final version (http://www.lawfareblog.com/wp-content/uploads/2011/12/NDAA-Conference-Report-Detainee-Section.pdf) of the Levin/McCain bill will be enshrined as law this week as part of the the 2012 National Defense Authorization Act (NDAA). I wrote about (http://www.salon.com/2011/12/01/congress_endorsing_military_detention_a_new_aumf/) the primary provisions and implications of this bill last week, and won’t repeat those points here.

The ACLU said last night (http://ggdrafts.blogspot.com/2011/12/aclu-on-obamas-non-veto.html) that the bill contains “harmful provisions that some legislators have said could authorize the U.S. military to pick up and imprison without charge or trial civilians, including American citizens, anywhere in the world” and added: “if President Obama signs this bill, it will damage his legacy.” Human Rights Watch said (http://ggdrafts.blogspot.com/2011/12/human-rights-watch.html) that Obama’s decision “does enormous damage to the rule of law both in the US and abroad” and that “President Obama will go down in history as the president who enshrined indefinite detention without trial in US law.”


Both groups pointed out that this is the first time indefinite detention has been enshrined in law since the McCarthy era of the 1950s, when — as the ACLU put it — “President Truman had the courage to veto” the Internal Security Act of 1950 (http://writing.upenn.edu/%7Eafilreis/50s/mccarran-act-intro.html) on the ground that it “would make a mockery of our Bill of Rights” and then watched Congress override the veto. That Act authorized the imprisonment of Communists and other “subversives” without the necessity of full trials or due process (many of the most egregious provisions of that bill were repealed by the 1971 Non-Detention Act (http://www.fas.org/sgp/crs/natsec/RS22130.pdf), and are now being rejuvenated by these War on Terror policies of indefinite detention). President Obama, needless to say, is not Harry Truman. He’s not even the Candidate Obama of 2008 who repeatedly insisted that due process and security were not mutually exclusive and who condemned (http://www.salon.com/2009/04/11/bagram_3/) indefinite detention as ”black hole” injustice.
http://www.salon.com/2011/12/15/obama_to_sign_indefinite_detention_bill_into_law/singleton/

[z0sa]

This one's ugly and for whatever reason reminds me of the Gestapo detaining and torturing Germans who opposed the Nazis during the latter stages of the second world war.

[Viva Las Espuelas]

Brown Shirts, yes.

[boutons_deux]

Barry caves on the veto, 5th and 6th amendments nullified

Dems cave on surtax on millionaires to pay for SS cut extension.

Barry's next cave in:

White House rejects Ryan-Wyden: 'This plan would end Medicare as we know it'

"We are concerned that Wyden-Ryan, like Congressman Ryan’s earlier proposal, would undermine, rather than strengthen, Medicare," said White House Communications Director Dan Pfeiffer. "The Wyden-Ryan scheme could, over time, cause the traditional Medicare program to “wither on the vine” because it would raise premiums, forcing many seniors to leave traditional Medicare and join private plans. And it would shift costs from the government to seniors. At the end of the day, this plan would end Medicare as we know it for millions of seniors. Wyden-Ryan is the wrong way to reform Medicare."

That's pretty strong language (not just "end Medicare as we know it" but also "wither on the vine" and "wrong way), and it echoes concerns from other Democrats. Rep. Pete Stark said it "ends Medicare as we know it, pure and simple" and Rep. Jim McDermott said he couldn't understand why Wyden was giving political "cover" to Paul Ryan by agreeing to turn Medicare into a voucher program.

There's no reason to think that turning Medicare into a voucher program—even if it's a voucher program with a public option—will save money over the current system. In fact, Ryan and Wyden rely on a trigger to reduce costs, just like the debt ceiling deal. Triggers didn't work with the debt ceiling and they won't work with Medicare. Why would we want to try them again ... especially as part of a plan that would get rid of Medicare as we know it?

Unlike the White House, Mitt Romney and Newt Gingrich are both celebrating Ryan-Wyden, obviously hoping that Wyden's support for voucherizing Medicare gets them off the hook for supporting such an unpopular plan. But given the strong Democratic rejection of the proposal, that's not going to happen. And let's not forget: not only has virtually every House Republican voted for Ryan's original Medicare-repeal plan, both Mitt Romney and Newt Gingrich (belatedly, in the latter case) have said they would have signed it into law.

http://www.dailykos.com/story/2011/12/15/1045680/-White-House-rejects-Ryan-Wyden:-This-plan-would-end-Medicare-as-we-know-it?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+dailykos%2Findex+%28Daily+Kos %29

[spursncowboys]

Obama’s White House that demanded the law apply to U.S. citizens in the first place.
Will not veto
http://www.infowars.com/indefinite-detention-bill-heads-to-obamas-desk/

[leemajors]

remember when the world was shocked that Chinese tanks nearly ran over student protesters?

[Spurminator]

remember when the world was shocked that Chinese tanks nearly ran over student protesters?

If that happened in the U.S. today, half of the country would conclude they deserved it.

[byrontx]

You are so damn right.

Fox News would be making cheerleaders out of the wingnuts.

[Winehole23]

A defense spending bill that passed both houses of Congress overwhelmingly and is set to be signed by President Barack Obama as early as this week could make it easier for the government to transfer American terrorist suspects to foreign regimes and security forces.


The National Defense Authorization Act (PDF (http://www.gpo.gov/fdsys/pkg/CREC-2011-12-12/pdf/CREC-2011-12-12-pt1-PgH8356-5.pdf)) contains a section that says the president has the power to transfer suspected members and supporters of Al Qaeda, the Taliban, or "associated" groups "to the custody or control of the person's country of origin, any other foreign country, or any other foreign entity."

That means if the president determines you're a member or supporter of Al Qaeda or "associated forces," he could order you to be handed over to the Saudis, the Egyptians, the Yemenis ("any other foreign country"), any of their respective security forces, or even the United Nations ("any other foreign entity"). (You can read the relevant section of the law in the document viewer at the end of this article.)


Many legal experts consider the NDAA a congressional codification of war powers the Bush and Obama administrations have claimed they already possess. David Glazier, a professor at Loyola Law School in Los Angeles and expert on the law of war, argues that Obama already had the power to transfer suspected Al Qaeda members (even Americans) to foreign custody, and the NDAA simply endorses that view. "If the president could lawfully transfer a German prisoner of war to a foreign country, then in theory he could do the same thing with an American prisoner of war," Glazier explains.
http://motherjones.com/politics/2011/12/did-congress-just-endorse-rendition-americans

[Wild Cobra]

I don't know if this is good or bad, but I do know that there have been false representations of it. Just impossible to tell to what degree.

Wouldn't it be nice if it was required for our government, and the news media, to be honest to us?

[Winehole23]

ministry of truth?

no thanks.