NYT and the Law that Dare Not Speak Its Name

An article today by Charlie Savage in the New York Times looks at President Obama’s announcement of “waivers” related to the National Defense Authorization Act (NDAA) and its provisions related to the open-ended military detention of suspects. It is noteworthy in two respects:

a) It manages to get through all 16 paragraphs while never once actually naming the National Defense Authorization Act explicitly, but only making oblique references to it.

b) It describes the law thusly:

The rule, imposed by Congress, applies only to a narrow category of terrorism suspects: those who are not American citizens, who are deemed to be part of Al Qaeda or its allies and who are suspected of participating in a terrorist plot against the United States or its allies.

Which is untrue. The first draft of the act explicitly exempted US citizens from military detention, but Sen. Carl Levin (D – MI) removed that exemption at the behest of the White House.

In the end, the “waivers” are another attempt by the president to assert his own power over detainees rather than to limit the potential impact of the open-ended detentions. The waivers don’t rule out military detention for anybody (not even American citizens) but instead just gives the Attorney General the power to make the final decision on whether or not they get access to civilian courts.

14 thoughts on “NYT and the Law that Dare Not Speak Its Name”

  1. SEC. 1022. MILITARY CUSTODY FOR FOREIGN AL-QAEDA TERRORISTS.
    ,,,
    (b) Applicability to United States Citizens and Lawful Resident Aliens-
    (1) UNITED STATES CITIZENS- The requirement to detain a person in military custody under this section does not extend to citizens of the United States.

  2. @Whoops

    The federal government is PERMITTED, but not REQUIRED, to detain US citizens in military custody.

  3. This is Charlie Savage.

    The author of this post is confused.

    Specifically, he is mistakenly conflating Section 1021 of the NDAA, which was the center of the controversy over whether US citizens are potentially subject to being held in indefinite military custody, with Section 1022, which does not apply to US citizens and which was the subject of the procedures the administration issued yesterday.

    1021 codified the view that the 9/11 AUMF enacted by Congress included the authority to hold Qaeda suspects in indefinite military detention, if executive branch officials wanted to do so as a matter of their policy discretion. In its final form, it is silent on whether or not that power extends to citizens.

    1022 imposed on the executive branch a mandate that officials must hold a smaller group of Qaeda suspects — specifically, non-citizens — in indefinite military detention, even if executive branch officials did not want to do that and preferred to use the civilian criminal justice system. That "mandate" is the one that was swiss-cheesed yesterday by these procedures.

    Here is an article that explains what became 1021 – and the murky question of US citizen rights – in greater detail: http://www.nytimes.com/2011/12/02/us/senate-decli

    Here is an article that explains what became the 1022 mandate at issue in yesterday's presidential directive – and which, again, does not apply to citizens – in greater detail: http://www.nytimes.com/2011/11/30/us/politics/sen

  4. Charlie, you're wrong. 1022 does "apply" to US citizens in that it doesn't *forbid* their forever-detention. This was a subject of much controversy and examination before and after the bill was passed, and many lawyers not in thrall of the president have concluded it can easily in fact apply to citizens as it does not repeal other laws and precedents that deal with citizens. And as you know, "not required" is not at all remotely the same thing as "forbidden."

    Anyway, *if* anyone were confusing the sections, you could forgive them as not only did you not name the specific sections in your piece, you didn't even name the piece of legislation the article described. You only mentioned "a" defense authorization bill deep in the piece. What's your angle?

    1. Technically I think Charlie is right regarding 1022 because that section deals only with the "requirement" to transfer people to military custody, and 1021 is the one that urges it as an option (1021c – Disposition Under Law of War).

      The overall thesis of Obama's waivers, that he claims the powers in 1021c for whenever he feels like it, and rejects 1022 because it suggests someone other than him has supreme power over life and death, remains unchanged.

  5. Really doesn't matter. Debating the nuances of legislation crafted by the fascists. Bottom line would be, Dear Obama will do EXACTLY whatever he's a mind to do. Detain me, you, indefinitely, forever and a day, 4 life terms without the possibility of parole, and/or until death we do part. The son-of-a-b*tch is out of control. But so is the United States Senate and the House of Reprehensibles. They are, to an elected person, straight up freaking insane. America's Constitution is 'null and void' and that's the really sinister aspect of all this.

  6. The NDAA can say whatever it wants- the bottom line is that Obama can order your death for any reason at any time and justify the act by declaring you an enemy of the state with no evidence and no judicial oversight or due process. Once you assume unto yourself the unlimited power of life or death over your fellow man, you can pretty much ignore anything in the rule book.

    So you want to contest the provisions of the NDAA before or after you've been detained? Fine, we'll just kill you now and be done with the whole problem.

  7. Even the existing statutes that allow America''s indefinite detention of alleged 'Al Queda terror suspects' constitute an insidious attack on liberty and the sovereignty of every nation on earth.

    On what legal basis can Obama or any regime in Washington preemptively invade foreign nations and then kidnap and/or murder their inhabitants? This is contrary to the UN Charter's prohibition against 'first strike' and preemptive war. It is an expression of State terror.

    The US constitution must be revamped since the framers never imagined (1) the President being allowed to unilaterally initiate preemptive wars and (2) the Zionization of Washington and American culture now pits our country against all potential rivals of Israel. Like Israel, America is now locked in a state of perpetual war.

    Unlike Israel, our nation is being continuously steered by outside forces to preemptively attack the rivals of a foreign power.

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  10. US citizens are potentially subject to being held in indefinite military custody, with Section 1022, which does not apply to US citizens and which was the subject of the procedures the administration issued yesterday.

  11. if executive branch officials wanted to do so as a matter of their policy discretion. In its final form, it is silent on whether or not that power extends to citizens.

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