Saturday, December 31, 2011

Get your heads out of the sand about NDAA!

Breaking news today is that President Obama signed the National Defense Authorization Act (NDAA). He also released a signing statement about the bill.

When it comes to indefinite detention, here's what the President said:

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.
(Emphasis mine)

But the problem here is that most folks arguing over this one are missing where the REAL battle is...with Congress. The bill once again denies the President the ability to transfer Guantanamo detainees to the US for trial in our federal courts. The same poutragers who are always yelling at the President for not closing Guantanamo seem fine with letting all of that pass. If they really wanted that done, they'd be joining with him in objecting to these limitations.

But perhaps just as important is another section the President addressed in his signing statement.

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.

Not many people have noticed that the Obama administration is engaged in some critical negotiations with the Taliban in an effort to end our involvement in Afghanistan. The success of those talks are very likely to hinge on transferring some members of the Taliban from Guantanamo to Afghanistan. Of course the Republicans are livid at the prospect and these portions of NDAA were designed to tie the President's hands.

You want to make some grand stand about the need for the US to get out of Afghanistan or close Guantanamo? I'd suggest that if that was the motivation driving the critics, they'd be pointing their arrows at the Republicans in Congress for these efforts to undermine our ability to do so. But these provisions in NDAA are all pretty much going unnoticed as too many give way to their Obama Derangement Syndrome (ODS).


  1. 'Eve'nin', Ms. Pants

    And, Happy New Year's Eve (I'll holla in the a.m.,too).

    SOOO glad you wrote this as, yes....there is some carryin' on about it (one of the folk is Boo Man - hope he reads this).

    To me, at some point, it would be quite helpful to acknowledge that maybe, jusssst,maybe a guy who is a Constitutional scholar may well know what he's doing re: the law (and,also, that he might know some other things that we who sit at our typewriters don't).

    Thanks for digging and putting out PLAINLY for ALL to see what was done (not saying that this is a GREAT law, but geeezz) and to keep in mind that things continue to unfold.

    We, actually, have the benefit of one of the better administrations in our country's history to guide us through it.

    In addition to my family, some good health, REALLY good friends and being gainfully employed, I am MOST thankful for THIS.

  2. Happy New Years Eve to you Blackman.

    May I just say that your friendship has definitely been a blessing to me this year - and I look forward to that continuing in 2012.

  3. Thank you, again, Ms. Smarty, for your usual cogent analysis! While I am stunned and disheartened by the willful ignorance on the Left, I am grateful for the compassion informing your posts. When the hot air of the cold-hearted on Left and Right chills one to the bone you provide a warming fire of reason.

    For that, thank you, and HAPPY NEW YEAR!

  4. Anonymous

    Oh my!!! I'm humbled but thank you for that.

    And Happy New Year to you too!

  5. Great stuff, Ms. Smartypants. Keep shining the light on the real work being done by this administration. The Happiest of New Years to you. May this one be the best EVER!

  6. Hi Nancy,
    Happy new Year and hope you are well.

    While Obama claims he has no intention of detaining American citizens indefinitely without trial, he has no influence over what the next presidents may or may not do with these new totalitarian powers. Notwithstanding his pledge to veto it, and subsequent capitulation. One, of a pattern of failures to protect our liberties. He has, in fact, acted forcefully to further undermine them.

    I am disheartened to see liberals and progressives who continue to support this president.

    Best to you always,


  7. Happy New Year to You Supersoling.

    While we've obviously gone our separate ways politically, its ALWAYS good to hear from you!

    In response to the specifics of your comment, rather than write something lengthy, I'd just point you to what I've written elsewhere.

    I don't think NDAA is the issue because it didn't change existing law on detention so those posts clarify where I think the real issues are.


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