Federal Judge Reaffirms Ban on Indefinite Detention of Americans

Federal Judge Katherine B. Forrest has answered a request from President Obama to clarify her May 16 ruling made in the Southern District of New York regarding the National Defense Authorization Act (NDAA). Judge Forrest confirmed in an eight-page memorandum opinion this week that the NDAA’s provision that allows for indefinite detention cannot be used on any American citizens.

Last month Judge Forrest ruled in favor of a group of journalists and activists who filed a suit challenging the constitutionality of Section 1021 of the NDAA, a defense spending bill signed into law by President Obama on New Year’s Eve. Judge Forrest said in her injunction that the legislation contained elements that had a “chilling impact on First Amendment rights” and ruled that the government cannot indefinitely imprison Americans over suspected ties with terrorists.
“In the face of what could be indeterminate military detention, due process requires more,” said the judge.
The Obama administration responded by asking Judge Forrest to reconsider her ruling and that in the interim, the government would interpret the injunction to mean that only the plaintiffs listed on the lawsuit would be excluded from indefinite detention. One of those named, journalist Chris Hedges said, “I have had dinner more times than I can count with people whom this country brands as terrorists … but that does not make me one.”
Judge Forrest did include in her ruling, however, that Americans can be indefinitely detained, but only if the government can link them directly to the September 11 terrorist attacks.

Obama “I Deserve a Second Term”

President Barack Obama said Sunday that he deserves to remain in the White House for four more years, even though the economy has been shaky throughout his first term in office.

“I deserve a second term, but we’re not done,” Obama said during a pre-Super Bowl interview with NBC’s Matt Lauer, who noted that Obama said in 2009 that if the economy hadn’t fully recovered by 2012, he would be a one-term president.

“When you and I sat down [then], we were losing 750,000 jobs a month,” Obama said. “Now we’re creating 250,000. We’ve created 3.7 million jobs over the last 23 months. We’ve created the most jobs since 2005, the most manufacturing jobs since 1990. But we’re not finished.”

The president also said he needs another term to boost manufacturing, energy and job training and that he also needs more time to ensure the country’s “return to old-fashioned American values,”.

“That means, for example, regulations that ensure that Wall Street is following the rules same as Main Street,” the president said. “But we’ve made progress. And the key right now is to make sure we don’t start turning in a new direction that could throw that progress off.”

While going from shedding 750,000 jobs a month to creating 250,000 is a good thing, it is hardly anything to brag about. Creating half a million jobs less per month than we were losing is an incredibly mediocre recovery especially considering that we spent at least a trillion dollars on said recovery. Obama’s green jobs initiative has been an abject failure and his administration has absolutely refused to prosecute any of the big banks for their role in the economic collapse despite mounds of evidence of criminal behavior. Add to that Obama’s signage of NDAA allowing for indefinite detention of American citizens, his attempt to negotiate an extension of troop presence in Iraq beyond 2011, his re authorization of the Patriot Act and secret assassination list that allows the President to kill whom ever he wants, including Americans, without due process.

Does Obama “deserve” another term? Absolutely not, but lucky for him his supporters are more interested in cheerleading than policy and the GOP leadership is too busy flying over the cuckoo’s nest.

14 Reasons to Not Re-elect President Obama

Conor Friedersdorf of the Atlantic has written a very insightful response to the Newsweek article authored by Andrew Sullivan defending the President against his critics on the left and the right.

You can read Friedersdorf’s entire article here, and I suggest that you do, as it provides numerous examples of why we as citizens, especially progressives, have legitimate reason to not support a President who ran on a progress platform promising to change Washington and has thus far failed on the most important issues facing the country.

Within the article are 14 actions that Obama has taken as President that either betray the trust of the American people, unnecessarily expand the federal government’s power, double down on the previous administration’s disastrous policies or outright violate the constitution. They are as follows:

(1) Codify indefinite detention into law

(2) draw up a secret kill list of people, including American citizens, to assassinate without due process

(3) proceed with warrantless spying on American citizens

(4) prosecute Bush-era whistleblowers for violating state secrets

(5) reinterpret the War Powers Resolution such that entering a war of choice without a Congressional declaration is permissible

(6) enter and prosecute such a war

(7) institutionalize naked scanners and intrusive full body pat-downs in major American airports

(8) oversee a planned expansion of TSA so that its agents are already beginning to patrol American highways, train stations, and bus depots

(9) wage an undeclared drone war on numerous Muslim countries that delegates to the CIA the final call about some strikes that put civilians in jeopardy

(10) invoke the state-secrets privilege to dismiss lawsuits brought by civil-liberties organizations on dubious technicalities rather than litigating them on the merits

(11) preside over federal raids on medical marijuana dispensaries

(12) attempt to negotiate an extension of American troops in Iraq beyond 2011 (an effort that thankfully failed)

(13) reauthorize the Patriot Act

(14) and select an economic team mostly made up of former and future financial executives from Wall Street firms that played major roles in the financial crisis.

How can anyone objectively look at Obama’s policies thus far and come to the conclusion that he is somehow the lesser of two evils?

Obama Signs Defense Authorization Bill, Despite Having Serious Reservations

President Obama has signed the controversial Defense authorization bill even though he says he had “serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists,”.

Strange that he would be more concerned about the parts of the bill relating to terrorist treatment than the part about indefinitely detaining U.S. citizens. Oh but don’t be worried King..err, I mean President Obama also said “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.”

We can definitely trust the President to keep his word even though he issued a signing statement in regards to the bill after candidate Obama once promised to never use them, right? According to candidate Obama, signing statements were an effort on the behalf of former President Dubya Bush to accumulate more power. Wonder how candidate Obama would describe President Obama’s current actions.

Below you can read Obama’s latest circumvention of the constitution that he brags about having taught for 10 years.

Statement by the President on H.R. 1540:

Today I have signed into law H.R. 1540, the “National Defense Authorization Act for Fiscal Year 2012.” I have signed the Act chiefly because it authorizes funding for the defense of the United States and its interests abroad, crucial services for service members and their families, and vital national security programs that must be renewed. In hundreds of separate sections totaling over 500 pages, the Act also contains critical Administration initiatives to control the spiraling health care costs of the Department of Defense (DoD), to develop counterterrorism initiatives abroad, to build the security capacity of key partners, to modernize the force, and to boost the efficiency and effectiveness of military operations worldwide.

The fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists. Over the last several years, my Administration has developed an effective, sustainable framework for the detention, interrogation and trial of suspected terrorists that allows us to maximize both our ability to collect intelligence and to incapacitate dangerous individuals in rapidly developing situations, and the results we have achieved are undeniable. Our success against al-Qa’ida and its affiliates and adherents has derived in significant measure from providing our counterterrorism professionals with the clarity and flexibility they need to adapt to changing circumstances and to utilize whichever authorities best protect the American people, and our accomplishments have respected the values that make our country an example for the world.

Against that record of success, some in Congress continue to insist upon restricting the options available to our counterterrorism professionals and interfering with the very operations that have kept us safe. My Administration has consistently opposed such measures. Ultimately, I decided to sign this bill not only because of the critically important services it provides for our forces and their families and the national security programs it authorizes, but also because the Congress revised provisions that otherwise would have jeopardized the safety, security, and liberty of the American people. Moving forward, my Administration will interpret and implement the provisions described below in a manner that best preserves the flexibility on which our safety depends and upholds the values on which this country was founded.

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.

Section 1022 seeks to require military custody for a narrow category of non-citizen detainees who are “captured in the course of hostilities authorized by the Authorization for Use of Military Force.” This section is ill-conceived and will do nothing to improve the security of the United States. The executive branch already has the authority to detain in military custody those members of al-Qa’ida who are captured in the course of hostilities authorized by the AUMF, and as Commander in Chief I have directed the military to do so where appropriate. I reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat. While section 1022 is unnecessary and has the potential to create uncertainty, I have signed the bill because I believe that this section can be interpreted and applied in a manner that avoids undue harm to our current operations.

I have concluded that section 1022 provides the minimally acceptable amount of flexibility to protect national security. Specifically, I have signed this bill on the understanding that section 1022 provides the executive branch with broad authority to determine how best to implement it, and with the full and unencumbered ability to waive any military custody requirement, including the option of waiving appropriate categories of cases when doing so is in the national security interests of the United States. As my Administration has made clear, the only responsible way to combat the threat al-Qa’ida poses is to remain relentlessly practical, guided by the factual and legal complexities of each case and the relative strengths and weaknesses of each system. Otherwise, investigations could be compromised, our authorities to hold dangerous individuals could be jeopardized, and intelligence could be lost. I will not tolerate that result, and under no circumstances will my Administration accept or adhere to a rigid across-the-board requirement for military detention. I will therefore interpret and implement section 1022 in the manner that best preserves the same flexible approach that has served us so well for the past 3 years and that protects the ability of law enforcement professionals to obtain the evidence and cooperation they need to protect the Nation.

My Administration will design the implementation procedures authorized by section 1022(c) to provide the maximum measure of flexibility and clarity to our counterterrorism professionals permissible under law. And I will exercise all of my constitutional authorities as Chief Executive and Commander in Chief if those procedures fall short, including but not limited to seeking the revision or repeal of provisions should they prove to be unworkable.

Sections 1023-1025 needlessly interfere with the executive branch’s processes for reviewing the status of detainees. Going forward, consistent with congressional intent as detailed in the Conference Report, my Administration will interpret section 1024 as granting the Secretary of Defense broad discretion to determine what detainee status determinations in Afghanistan are subject to the requirements of this section.

Sections 1026-1028 continue unwise funding restrictions that curtail options available to the executive branch. Section 1027 renews the bar against using appropriated funds for fiscal year 2012 to transfer Guantanamo detainees into the United States for any purpose. I continue to oppose this provision, which intrudes upon critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests. For decades, Republican and Democratic administrations have successfully prosecuted hundreds of terrorists in Federal court. Those prosecutions are a legitimate, effective, and powerful tool in our efforts to protect the Nation. Removing that tool from the executive branch does not serve our national security. Moreover, this intrusion would, under certain circumstances, violate constitutional separation of powers principles.

Section 1028 modifies but fundamentally maintains unwarranted restrictions on the executive branch’s authority to transfer detainees to a foreign country. This hinders the executive’s ability to carry out its military, national security, and foreign relations activities and like section 1027, would, under certain circumstances, violate constitutional separation of powers principles. The executive branch must have the flexibility to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers. In the event that the statutory restrictions in sections 1027 and 1028 operate in a manner that violates constitutional separation of powers principles, my Administration will interpret them to avoid the constitutional conflict.

Section 1029 requires that the Attorney General consult with the Director of National Intelligence and Secretary of Defense prior to filing criminal charges against or seeking an indictment of certain individuals. I sign this based on the understanding that apart from detainees held by the military outside of the United States under the 2001 Authorization for Use of Military Force, the provision applies only to those individuals who have been determined to be covered persons under section 1022 before the Justice Department files charges or seeks an indictment. Notwithstanding that limitation, this provision represents an intrusion into the functions and prerogatives of the Department of Justice and offends the longstanding legal tradition that decisions regarding criminal prosecutions should be vested with the Attorney General free from outside interference. Moreover, section 1029 could impede flexibility and hinder exigent operational judgments in a manner that damages our security. My Administration will interpret and implement section 1029 in a manner that preserves the operational flexibility of our counterterrorism and law enforcement professionals, limits delays in the investigative process, ensures that critical executive branch functions are not inhibited, and preserves the integrity and independence of the Department of Justice.

Other provisions in this bill above could interfere with my constitutional foreign affairs powers. Section 1244 requires the President to submit a report to the Congress 60 days prior to sharing any U.S. classified ballistic missile defense information with Russia. Section 1244 further specifies that this report include a detailed description of the classified information to be provided. While my Administration intends to keep the Congress fully informed of the status of U.S. efforts to cooperate with the Russian Federation on ballistic missile defense, my Administration will also interpret and implement section 1244 in a manner that does not interfere with the President’s constitutional authority to conduct foreign affairs and avoids the undue disclosure of sensitive diplomatic communications. Other sections pose similar problems. Sections 1231, 1240, 1241, and 1242 could be read to require the disclosure of sensitive diplomatic communications and national security secrets; and sections 1235, 1242, and 1245 would interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with foreign governments. Like section 1244, should any application of these provisions conflict with my constitutional authorities, I will treat the provisions as non-binding.

My Administration has worked tirelessly to reform or remove the provisions described above in order to facilitate the enactment of this vital legislation, but certain provisions remain concerning. My Administration will aggressively seek to mitigate those concerns through the design of implementation procedures and other authorities available to me as Chief Executive and Commander in Chief, will oppose any attempt to extend or expand them in the future, and will seek the repeal of any provisions that undermine the policies and values that have guided my Administration throughout my time in office.

THE WHITE HOUSE, December 31, 2011.

Lawmakers Submit Letter Opposing Indefinite Detention for U.S. Citizens

Forty members of Congress have sent a letter urging the House and Senate Armed Services Committee leaders to protest provisions of the National Defense Authorization Act that would allow for the indefinite detention of American citizens. The NDAA first passed in the House of Representatives weeks ago but endured strong opposition from a handful of lawmakers in the U.S. Senate last Thursday, where the bill was passed but with the addition of an amendment that forced the measure to be revised for a final vote. The final version of the NDAA was completed and a vote on it is set to take place this week.

“I strongly oppose mandating military custody and allowing for indefinite detention without due process or trial. These provisions are deeply concerning and would risk putting American citizens in military detention, indefinitely. In short, this authority is at complete odds with the United States Constitution.” stated Rep. Martin Heinrich (D-N.M.)

On December 5, Senator Rand Paul (R-KT.) wrote of the dangerous provisions found in the NDAA in the National Review: “If you allow the government the unlimited power to detain citizens without a jury trial, you are exposing yourself to the whim of those in power. That is a dangerous game.”

The final version of the bill does not address any of the concerns of members of congress.

Any issues that the Obama administration supposedly had with the Senate-passed version of the bill, apparently had nothing to do with the indefinite detention of Americans. Recent revelations by Senator Carl Levin (D-Mich.) indicate that the White House actually insisted that any language exempting American citizens from the indefinite detention provision be removed.

“The language which precluded the application of Section 1031 to American citizens was in the bill that we originally approved … 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.” said Levin.

The provisions found in Section 1031 of the bill provide the President full power to arrest and detain citizens of the United States without due process. Under that provision, the President is also given the authority to use the military to apprehend and detain those suspected individuals, dubbed “covered persons.” Section 1031, defines a “covered person” as one who either engages in terrorist acts, or is associated with an organization guilty of “belligerent acts.”

According to Senator Rand Paul the FBI publishes characteristics of people you should report as possible terrorists. The list includes the possession of “Meals Ready to Eat,” weatherproofed ammunition and high-capacity magazines, missing fingers, brightly colored stains on clothing, paying for products in cash, and changes in hair color.

Still, supporters for the bill say that it should not make exceptions for anyone, regardless of their citizenship.

“It is not unfair to make an American citizen account for the fact that they decided to help al Qaeda to kill us all and hold them as long as it takes to find intelligence about what may be coming next,” remarked Senator Graham (Rep.-S.C.) “And when they say, ‘I want my lawyer,’ you tell them, ‘Shut up. You don’t get a lawyer.’”

According to the Huffington Post, “the last time something of this magnitude was even talked about was during World War Two when Japanese-Americans were put into internment camps following the bombing of Pearl Harbor.”

While the indefinite detention provision managed to remain in the bill, some other significant items found their way out of it, including a 2014 audit requirement for the Pentagon, reports Congressional Quarterly.