President Barack Obama’s decision not to veto the National Defense Authorization Act over controversial and unclear provisions regarding the handling of certain kinds of terror suspects will leave law enforcement officials scrambling to rewrite the rules for how they respond to suspected terrorist incidents.
Once the bill is signed into law, the Obama administration will have 60 days to redraw rules on how everything will be implemented and try to clear up what the White House called the “uncertainty” that the law “will create for our counterterrorism professionals.”
The biggest complaint that law enforcement officials have with the bill, in the words of FBI Director Robert Mueller, is that it “lacks clarity with regards to time of arrest.”
Still, Sen. Carl Levin (D-MI) maintains that the bill had “been written to be doubly sure that there is no interference with civilian interrogations and other law enforcement activities and to ensure that the President has the flexibility he needs to use the most appropriate tools in each case.”
Law enforcement officials aren’t so sure and wonder how members of Congress expect them to be able to instantaneously identify the necessary information they need to make a determination about whether a suspect should go into civilian or military custody.
“They don’t wear al-Qaeda hats,” one law enforcement official official told TPM.
So given that Congress hasn’t exactly made things clear here, we thought we’d lend a hand. Say it’s the middle of the night and you’re an FBI agent en route to botched terrorist attack. Here’s TPM’s guide to the questions you should be asking yourself.
Question 1: Is your arrestee a citizen or lawful U.S. resident?
- Yes. Civilian system it is! The president will still probably get political heat for it, so he might have to remind people about that whole killing-Osama-bin-Laden-thing. (One catch: civil liberties advocates contend that the language of the NDAA leaves the door open for this or a future administration to say the law does apply to American citizens.)
- No. Tough break. On to question number two.
- I don’t know. Understandable! It’s an unfolding national security situation, for Pete’s sake. There’s a chance you might not even know what the suspect’s name is yet. Unfortunately, Congress really didn’t think this one through, so pay attention to that retraining they make you take to see what kind of rules the administration makes up for handling these situations.
Question 2: Does your suspected terrorist have possible ties to al-Qaeda, the Taliban or “associated forces that are engaged in hostilities against the United States or its coalition partners”?
- Yes. If you say so. Move on to question three.
- No. You sure? That “associated forces” term would seem to apply pretty broadly. What does “associated” even mean, really? Couldn’t you pretty much call any organization an “associated” force? “There’s absolutely no restriction on that,” Heather Hurlburt, executive director of the National Security Network told TPM. “People should understand that you are totally at the mercy of any administration and what they decide is a military group.”
- I don’t know. Understandable! Congress offers no help on this, so you should hope that the Defense Department and other government component came up with a plan about what to do.
Question 3: Can the administration spend a little political capital?
- Yes. Pretty much the whole point of the “waiver” system written into the NDAA is to make the administration put some skin in the game if they want to throw a suspected terrorist into the same justice system that killed Timothy McVeigh and has convicted hundreds of individuals on terrorism and terrorism-related cases over the years.
- No. National security politics get nasty fast. The president might not think handling the suspect in the civilian justice system is worth dealing with the political consequences, especially if the incident takes place before the 2012 election.
- I don’t know. Understandable! Not every FBI agent has a direct line to the President of the United States. You’ve got to call your boss, they’ve got to call their boss. What should you do in the meantime? Can you keep questioning the suspect? Should you read him his Miranda rights? All good questions, no good answers.
Question 4: Where’s the nearest military facility?
- Close by. Phew, dodged a bullet there. Give them a ring.
- Far away. Uh-oh. Mueller warned us about this, but the NDAA doesn’t give much guidance. Good luck!
Ryan J. Reilly
Ryan J. Reilly is a D.C.-based reporter for TPM. Prior to joining TPM, he worked for a news website covering the Justice Department and was a researcher for Bloomberg News. His email address is ryan(at)talkingpointsmemo.com.
If you're outraged by the NDAA, take action to raise your voice, both online -- at http://bordc.org/ndaa/ -- but also offline. Explore dozens of grassroots events all over the country, or add one of your own to which we can help invite your neighbors and local allies, at http://bordc.org/ndaa/map.php.
The levity of this post, and the shallow coverage of this issue by TPM disturb me. Glenn Greenwald wrote the definitive post on this last Friday. http://www.salon.com/2011/12/16/three_myths_about_...
At least read his post and address his arguments before you make light of the very real possibility that we have opened the door -- in this administration or the next -- to indefinite detention without trial of American citizens arrested on American soil. Do your job, TPM.
Kansachusetts It's called "satire."
I don't think it achieved the level of satire. There really is a distinct point at which this bill can allow unprecedented incursions into our civil liberties. That was left unexamined. You can't successfully satirize something you don't fully try to understand. dfmanno
Kansachusetts Yeah, uh, Greenwald's post is not definitive.
He's very selective in his highlighting, and consciously omits interpreting the full text of the sections he highlights.
So in "myth #2" he'd have the reader believe that the section stops on the second highlight, the words "or associated forces". But it doesn't. It continues, so the full phrase is: "or associated forces that are engaged in hostilities against the United States or its coalition partners".
I would hope that Glenn's not trying to assert that if a group directly attacks us, it should be immune because it's not according to some unspecified arbiter "part of" al Qaeda or the Taliban, since that would be a truly insane proposition.
Glenn also appears to attempt to pull the wool over readers' eyes about what the AUMF actually said, when he states that sec. 1021 para (b)(1) is "basically a re-statement of the 2001 AUMF". It's not. The AUMF authorized force against "nations, organizations or persons" the President determined committed or aided or harbored those responsible for 9/11; NDAA 1021 (b)(1) covers only individuals "who planned, authorized, committed or aided" 9/11 or harbored those who did - persons only, excluding "nations" and "organizations". (b)(2) isn't cut from whole clothe, it's reintroducing the organizations part, only this time specifically naming al Qaeda and the Taliban - and then making the addition of associated organizations *engaged in active hostilities against the US*.
Kansachusetts
Then in "myth #3" the supposed "grammatical vagueness" Glenn talks about just does not exist. What he's talking about is the section 1021 provision that:
<blockquote>Nothing in this section shall be construed to affect 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.</blockquote>
Greenwald is, or rather used to be (he wound down his practice in '05), a constitutional lawyer. So he knows damn well the canons of construction. He knows that the phrase "who are captured or arrested in the United States", under the canon "reddendo singula singulis", applies only to "any other persons" and not to "United States citizens" or "lawful resident aliens of the United States".
Also, Glenn claims that there are two "new authorities" for detention in the NDAA. This is simply false. In fact, he later restates it correctly. Section 1021 is the only section that codifies "authority" to detain. Section 1022 creates a *requirement* for military detention for certain persons whose detention section 1021 already authorized. Only section 1021 creates new authority. Nobody whose detention is not authorized by section 1021 can be covered by section 1022. Whatever purposeful muddling of the issue there may be comes not from the bill, but from Greenwald.
(and I just discovered there's a character limit on comments)
sullivanstKansachusetts sullivanst, just a point of note, when this was written by Glenn they were still sections 1031 & 1032. I hope you are open-minded enough to seriously question why our rights are being modified at all.
marshall.getto Not true. Glenn's piece is dated 12/16, the conference report is dated 12/12. Nevertheless, my first assumption was that he was quoting the Senate version, but I quickly realized that he did quote them as being sections 1021 and 1022, which means he was quoting the conference report. What's more, the text he quotes inline is the conference version of the bill. Finally, he actually links to the conference report from his piece.
What's more, Glenn's analysis is clearly flawed based only on the text that he does reproduce.
Trust me, I was ready to join the anti-NDAA chorus... until I actually read the bill. There is no sweeping new authority to be found in the actual text of the bill. What there is, is a codification of the existing practices of dealing with those detained overseas as part of our operations in Afghanistan, and some restriction on the executive's ability to transfer detainees out of military custody if they are members of al Qaeda or a group that coordinates with or takes direction from al Qaeda, and they were attacking us, and they're not US citizens.
If you're a US citizen or permanent resident, the NDAA does not change your rights at all. If you are arrested within the US, the NDAA does not change your rights at all.
That's an argument very much worth having. TPM hasn't examined your argument or Glenn's. I expect more of TPM.
sullivanst
And if there is any doubt on such a subject, there should be language in the bill to clearly remove the doubt so that when the next George W. takes office he can't fly a drone through that hole. sullivanst
Kansachusetts There really isn't any doubt. There is only one permissible interpretation of that clause. Any interpretation in which you attempted to apply then "captured or arrested in the United States" clause to the United States citizens and legal residents of the United States would also fall foul of several other canons of construction. First is that the words describing citizens and residents would effectively become nullities - they're simply subsets of persons; but in legal interpretation you must attempt to give force to every word of the statute. Second is the interpretation in light of fundamental values - we're the "land of the free", locking those arrested within the United States up and throwing away the key on some unspecified arbiter's say-so without trial would violate our fundamental values, and so any statute must be interpreted wherever possible to avoid that. Third is the avoidance canon - the broad interpretation violates the 5th Amendment, so the narrow interpretation is required. Finally we have the clear statement rule - if Congress intends to impinge on long-standing rights, it must say so clearly; this statute states the opposite, and therefore it is not permissible to interpret it in a way in which it does.
The canons of construction are designed to eliminate ambiguity, and in this case, they actually do, because several canons are involved and they all point to the same single interpretation.
Kansachusetts I completely agree with you Kansachusetts! Where is the outrage at our civil liberties being threatened. I get that it was a satiristic piece, but should we be burning paragraphs on how insane this entire approach is, explained away by a non-existent war with "terror", whatever "terror" that is? A great Truthout article today as well on this lays bare the media's obsession with not mentioning this topic or the controversial sections 1021 & 1022 (previously 1031 & 1032):http://www.truth-out.org/why-media-lying-about-new...
When you have Al Franken, Jim DeMint, Bernie Sanders, and Rand Paul all coming out with strong "Nays" against the final bill based on Constitutional grounds, this should act like a clarion call for everyone concerned that something is really wrong with this act.@GGreenwald did a great job trying to get the truth out there and is getting pig-piled on by Obama apologist Dems and establishment Repubs alike.Twilight zone, here we come.
Canadians experienced something like this in 1970, when the War Measures Act was invoked in response to terrorist acts on the part of the Quebec Liberation Army (FLQ). For the cops, all across Canada they were like little bully boys let lose in a candy shop. Everyone they’d always wanted to arrest but hadn’t been able to lay a glove on got swept up in a giant round-up of almost 500 “suspects.” Doesn’t sound like many to an American, I know, but multiply that by a factor of 10, and you’ll start to get a feel for how serious it was. I was living in Europe at the time, so I didn’t directly experience what it was like, although I guess it was pretty grim: About 85% of Canadians, including Quebeckers, supported the Act’s invocation -- sort of like post-9/11 Americans vis-à-vis the PATRIOT Act. People do a lot of stupid things when their own governments terrorize them into it.
O! Say can you see, o’er your neighbor’s rear fence
Are they up to no good, are they actively scheming?
Through broad drapes and slat blinds, through opaque rayon shears
O’er the lamp tops we watched, with our video streaming.
Are those prayer rugs o’er there, icons hung near the stair?
This proves we were right; there are foreigners there.
O! Say does that neighbor of ours look Arabi-aa-an?
Lock them up indefinitely-he-e-e-e-e; torture them ‘cause we ca-a-a-n.
MrJonz If I have your permission I'm gonna pass that on and use it with our Occupy singing crew.
Wait a sec.
We're talking the conference report to HR 1540, here, aren't we?
In particular, section 1022 of the conference report, right?
http://thomas.loc.gov/cgi-bin/cpquery/?&dbname...;
Take a real close look at the language:
"(1) IN GENERAL- Except as provided in paragraph (4), the Armed Forces of the United States shall hold a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107-40) in military custody pending disposition under the law of war."
Paragraph (2) contains most of the rules described above. Paragraph (4) is the waiver system.
But let me highlight a particular part of paragraph (1)
"who is captured in the course of hostilities authorized by the Authorization for Use of Military Force"
Doesn't that mean the wars in Iraq and Afghanistan? Any police action within the US could very reasonably be argued - in fact, in my opinion, could only be correctly argued - to be not part of the course of hostilities authorized by the AUMF.
In other words, the notion that the NDAA could require anyone captured by police within the US to be transferred to military authority, even ignoring the waiver process, appears to me to be wrong.
What's more, covered persons defined in paragraph (2) of section 1022 are a subclass of covered persons under section 1021.
Paragraph (4) of section 1021 states that:
"Nothing in this section shall be construed to affect 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."
Again, let me highlight the part:
"or any other persons who are captured or arrested in the United States"
I think those powers have been broadened to include areas outside the initial authorization, to, apparently within the U.S. (or could be interpreted as doing so). Section 1032 seems to be the issue.
There's a good TPM article I tried linking to but the link was a mess. Do a search here on TPM for "1032". The results should show an article with a December 2 byline titled "White House Still Threatening Veto Over Terrorists In Military Custody Mandate" about it.
1972gd But no. The NDAA specifically refers to PL-107-40, the original AUMF. Any amendments would be separate PLs.
And there's also that quite clear statement that nothing in the relevant section shall be construed to affect existing law or authorities relating to US citizens or lawful residents, or any persons captured or arrested in the United States - regardless of the scope of the AUMF.
sullivanst I don't know what to tell you - I'll let the lawyers posting here repsond. None of the articles I've read elsewhere (ACLU, MoJo) address that.
1972gd A number of the articles I've seen appear to be very confused readings of how the paragraphs relate to each other. And by confused, I mean wrong.
Another thing the article here doesn't mention is the specific requirement in the NDAA that the procedures arising from it should ensure that a determination that a detainee should be kept in military custody must not interfere with ongoing surveillance, intelligence gathering or interrogations. That somewhat invalidates the claim that law enforcement agencies must "instantaneously" evaluate someone they arrest and decide on the spot whether to transfer them to military custody.
Guy at a party's been looking at your wife. You (and several other guests) hear him say, of politicians in Washington, "Those bastards should all be taken out and shot." Next day, you drop a dime to Homeland Security -- and the guy never sees your wife again. Or his.
Wouldn't be the first time in history...
Libtards are SO STUPID. Look, IF you're NOT a TERrorist, YOU HAVE nothing TO WORRY ABOUT!!!!!
Mr.Banana Hammock Dear Mr. European Underpants: yeah, but who defines the word "Terrorist"? Not you, that's for sure.
JimmyBobby
i'M not worried AS i AM NOT BROWN.
Is that why you're so stupid Opie? Mr.Banana Hammock JimmyBobby
@Max Thrax What, they don't cover sarcasm in "Read for Dummies"?
I predicted when this thing passed that it would be hashed out in the courts as its implementation began. Unless Newton becomes Prez. Then he'll have the military arrest any judge who disagrees with his interpretation of the law as a terrorist supporter.
How can the courts ever get to rule on this law, if people can be "disappeared" by the government and kept from ever having access to the judicial system? Terry Bloss
rmwarnick *Cough* Boumediene v Bush *cough*
Politicians love bills that lack clarity because they can interpret it as they see fit and it will result in a lot of future lawyering.
Check out this picture.
Wigglesworth11 Well Syrians are certainly the best people to judge who is the best president for the United States. Why don't we just let them elect the next one for us?
Papers, please.
It's unconstitutional. Even the Bush Admin ducked on the Jose Padilla case, transferring him to a prison as the Supremes were about to hear his appeal of his detention. It's unconstitutional. Presumably, the first time the issue comes up, the Obama Admin will decline to defend the provision and get us where we are with DMA.
Militarize the police force? Check. Invest large sums into developing crowd control technology? Check. Make indefinite detention of American citizens legal? Check. Broaden the definition of 'terrorist'? Chec......hey look Ashton and Demi are getting divorced! There's a new poll out! Look! A monkey riding a dog! Ha ha....what was I talking about again?
Max Thrax So what's your solution? Bitch about it on internet forums?
Flying Squid What's your solution? Bitch on the internet?
Flying Squid
Real change begins with one person willing to bitch about something on an internet message board. Max is basically the grandchild of the ARAB SPRING.
@Max Thrax You missed question #1 and failed to provide an essay for the large sums invested in crowd control. I'm sorry but you're going to have to repeat the course.
Doremus Jessup 2.0@max And by "repeat" we mean "imprison indefinitely."
Marioth I'm sorry, could you repeat that?
Doremus Jessup 2.0Marioth 'Militarize the police force? Check. Invest large sums into developing crowd control technology? Check. Make indefinite detention of American citizens legal? Check. Broaden the definition of 'terrorist'? Chec......hey look Ashton and Demi are getting divorced! There's a new poll out! Look! A monkey riding a dog! Ha ha....what was I talking about again?'
Doremus Jessup 2.0@max "Read For Dummies". Find it. Read it.
Max ThraxDoremus Jessup 2.0 Unless the book itself was written by a dummy, the title would be 'Reading for Dummies.'
Flying SquidDoremus Jessup 2.0 The proper grammar would be "Unless the book was written by a dummy....". The subject of the sentence is already made clear, 'the book'. The word 'itself' is a redundancy.
Max ThraxDoremus Jessup 2.0 So I guess this is your way of saying that you don't have a solution other than bitching on an internet forum. Gotcha.
What's your solution? Bitching on the internet? Why don't you get off your ass and do something? Flying Squid Doremus Jessup 2.0
Max ThraxDoremus Jessup 2.0 Because I don't come up with solutions for things I don't think are problems.
A good place to start eliminating the "uncertainty" of Homeland Security would be to cut the local media fear tactics. Some people are actually smart enough to know Homeland's behind them.
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