I’m looking at the state of play with the NDAA and I bang my head against the nearest wall. (Via “Mother Jones”.)
The new bill still mandates military detention without trial for any non-citizen terrorism suspect apprehended in the US who is determined to be a member of al Qaeda or an “affiliated group.” The administration now has several ways to get around that requirement, however. It could issue a national security waiver—a letter from the administration authorizing a trial in civilian court. Alternatively, the FBI could simply detain a suspect up until a determination is made that he can be detained by the military. Even after that, if the administration decides to try the suspect in civilian court, there’s still no need to put him in military custody. Under the latest version of the law, someone like underwear bomber Umar Abdulmutallab could still go from interrogation to trial without ever passing through military hands—and without the need for a national security waiver. (The national security waiver option that has been a part of the Senate bill since the earliest drafts, although the authority to grant the waiver now rests with the president instead of the secretary of defense—a change a Senate aide said was requested by the administration.)
Civil liberties and human rights advocates were less convinced that the bill’s mandatory detention provisions could be so easily circumvented. A coalition of human rights, civil liberties advocates and national security experts held a conference call on Tuesday morning to warn that the NDAA still carves out a hypothetical role for the military to enforce the law on American soil. Sen. Lindsey Graham’s (R-S.C.) comment that “the homeland… is that battlefield”—made during the December 1 debate after which the Senate approved its version of the NDAA—applies equally now, said Raha Wala, a lawyer at Human Rights First. And ACLU legislative counsel Chris Anders argued that the NDAA could set up a jurisdictional conflict between the military and the FBI similar to those that exist between state and federal level law enforcement authorities.
The latest version of the bill bill maintains transfer restrictions on the transfer of Gitmo detainees that were passed last year. It also retains the language of the Senate “compromise” on indefinite detention without trial of American citizens apprehended on US soil, leaving the issue an open question for the courts to resolve. The way the compromise is worded, however, could be construed as authorizing military detention of American citizens who are captured abroad, even if they’re not apprehended fighting on a hot battlefield such as Afghanistan.
I hope that Obama follows through on his veto threat and cuts this Gordian Knot of fear based legislation. As it stands now, he’s starting to regain the trust he lost while trying to broker with the GOP by re-pivoting back to jobs. And taking a shiv to the Forth Amendment will put an end to that. (Not to mention the actual end of the Forth Amendment which happens to be as these things go, a pretty damn nifty Amendment.)
And I hope to Crom Obama’s not stupid enough to think he can wield this unjust law justly because there’s still the matter of the next guy who gets his office. And speaking as someone who remembers the country’s transition from Clinton to Bush, I can tell you that there is always a next guy!
And given the insanely bi-polar make up of our electorate, the next guy could make Bush look like Paul Krugman.
UPDATE: 1:09 p.m. on 12/14/11.
WASHINGTON (AP) — The White House says senior officials will not recommend that President Barack Obama veto the defense bill awaiting passage in Congress.
A White House statement says changes by congressional negotiatorswould not challenge or restrict the president’s ability to collect intelligence or incapacitate terrorists.
The White House had threatened a veto over provisions requiring military custody of suspected terrorists linked to al-Qaida.