Infrastructure of Tyranny--Indefinite Detention without Trial

In the first part of this survey of what Conor Friedersdorf has called the "infrastructure of tyranny,"  we looked at the practice of extraordinary rendition, which is basically the art of making people disappear.  In the second part of this survey, we looked at black site prisons, or where people have been disappeared to.  In the third part of the series, we looked at secret detention, or simply not acknowledging that a person is in your hands.  In the fourth part, we'll look at indefinite detention without trial, also known in some circles as "locking them up and throwing away the key."

There are people being indefinitely detained in Guantanamo Bay right now.  Excerpts:

The US Government has for the first time released the identities of 46 terror suspects being held at Guantánamo Bay as “indefinite detainees” — men considered too dangerous to transfer from the jail but ineligible for trial because of insufficient or tainted evidence...

Indefinite detention of American citizens is not impossible, especially in light of the National Defense Authorization Act (NDAA) brouhaha in 2012, the willingness of a number of senators to include language in the bill which would authorize the federal government to indefinitely detain US citizens without recourse to a trial, and the concatenation of events laid out in this series.  The proposed Senate language (which was rejected):

"Offered to the National Defense Authorization Act for Fiscal 2012 (S.1867), amendment No. 1274 would have allowed the U.S. government to detain an American citizen indefinitely, even after they had been tried and found not guilty, until Congress declares an end to the war on terror."

Sponsored by Senator Jeff Sessions of Alabama. Voted for by 41 members of the US Senate, including two Democrats, one Independent, and the rest Republicans.

Some would say it's already happened.  Excerpts:

...The threat that the U.S. government would detain indefinitely — or even kill — an American citizen without formal charges or judicial proceeding is hardly theoretical. The appellate court that struck down the injunction acknowledged that fact:

Presidents Bush and Obama have asserted the right to place certain individuals in military detention, without trial, in furtherance of their authorized use of force. That is, whom did Congress authorize the President to detain when it passed the AUMF [Authorization for the Use of Military Force]? On December 31, 2011, President Obama signed into law the National Defense Authorization Act for Fiscal Year 2012. Section 1021 of that statute, which fits on a single page, is Congress’ first — and, to date, only — foray into providing further clarity on that question. Of particular importance for our purposes, Section 1021(b)(2) appears to permit the President to detain anyone who was part of, or has substantially supported, al-Qaeda, the Taliban, or associated forces.

Both President Obama and George W. Bush have authorized the detention or killing of American citizens without any due process.

U.S. citizen Anwar al-Awlaki had been deemed a terrorist by the Obama administration for essentially maintaining a YouTube site that called for attacks against Americans from Awlaki's Yemeni home. Awlaki — an American citizen — was later killed in a September 30, 2011 drone strike authorized by President Obama but without any judicial proceeding. No evidence of his actual involvement in any terrorist incident was ever made public, and no charges were ever brought in any court against Awlaki. Two weeks later Awlaki's Colorado-born 16-year-old son, Abdulrahman, was killed in a separate drone strike authorized by the president. And President Obama is widely known to have a “kill list” that includes American citizens.

President Bush detained at least four American citizens without trial: U.S. Navy Veteran Donald Vance, Nathan Ertel, Yaser Hamdi, and Jose Padilla. Although Vance and Ertel were released after a few months of torture (they were innocent), the Bush administration fought giving Hamdi and Padilla a trial — and even a habeas corpus hearing — all the way to the U.S. Supreme Court.

Court challenges to the NDAA passed in 2012 have recently failed.  Excerpts:

...When Hedges, a war correspondent who has interviewed members of al-Qaida and the Taliban, first filed his lawsuit in January 2012, he suggested Section 1021 of the NDAA could have a chilling effect on the First Amendment, which protects free speech and freedom of the press.

The Pulitzer Prize winner reacted to the Appeals Court decision with disdain.

“It means there is no recourse now either within the executive, legislative or judicial branches of government to halt the steady assault on our civil liberties and most basic Constitutional rights,” Hedges said in a statement to TruthDig, where he is a columnist.

He suggested the NDAA has helped blur the lines between domestic policing and military counter-terrorism operations.

“It means that the state can use the military, overturning over two centuries of domestic law, to use troops on the streets to seize U.S. citizens, strip them of due process and hold them indefinitely in military detention centers,” he wrote...

After the September 11, 2001, terrorist attacks, the U.S. passed a series of laws to give law enforcement agencies greater ability to gather intelligence on, and take action against, alleged terrorist threats. The National Defense Authorization Act, which outlines the Defense Department budget and spending plan, is part of that effort.

President Barack Obama signed the act in 2012, he said, “with serious reservations” about provisions related to the treatment of terrorism suspects held at Guantanamo Bay. At the signing, he also addressed concerns about the treatment of U.S. citizens.

“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,” he said. “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.”

The U.S. government has not said whether it has held any U.S. citizen under section 1021 of the NDAA...

More on the decision.  Excerpts:

..."We thus conclude, consistent with the text and buttressed in part by the legislative history, that Section 1021 [of the 2012 NDAA] means this: With respect to individuals who are not citizens, are not lawful resident aliens, and are not captured or arrested within the United States, the President’s [Authorization for Use of Military Force] authority includes the authority to detain those responsible for 9/11 as well as those who were a part of, or substantially supported, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners—a detention authority that Section 1021 concludes was granted by the original AUMF. But with respect to citizens, lawful resident aliens, or individuals captured or arrested in the United States, Section 1021 simply says nothing at all," Judge Lewis Kaplan wrote on behalf of Judges Amalya Kearse and Raymond Lohier...

The President has more recently signed a new version of the NDAA in 2013.  Salon has more.  Excerpts:

...This year, the same provisions over which he was so reserved remain in the 2013 version of the bill, along with a number of brand-new problematic amendments. The president threatened a veto on the new bill’s prohibitions on closing Guantánamo Bay detention center. But he didn’t veto; he signed the bill again on Thursday.

Once again, Obama expressed his misgivings in a signing statement, but stressed that “the need to renew critical defense authorities and funding was too great” to reject the bill, which approved a $633 billion armed forces budget for the 2013 fiscal year. Also approved in the NDAA are controversial provisions that will likely make closing Guantánamo Bay detention center impossible in Obama’s presidency, and provisions elsewhere in the act that allow for the indefinite military detention of U.S. citizens.

“It’s the second time that the president has promised to veto a piece of a very controversial national security legislation only to sign it,” said Shahid Buttar, executive director of the Bill of Rights Defense Committee, according to HuffPo. “He has a habit of promising resistance to national security initiatives that he ultimately ends up supporting and enabling...

Despite stating last year that his administration “worked tirelessly to reform or remove the provisions” relating to indefinite detention of U.S. citizens, Obama’s attorneys this year quashed federal injunctions made against these provisions as the result of an ongoing lawsuit brought against the president by Pulitzer Prize winner Chris Hedges, Daniel Ellsberg and six other plaintiffs including Noam Chomsky and Naomi Wolf. The president’s signing statement Thursday unsurprisingly made no such mention of tireless work to remove the controversial provisions...

More on the new NDAA.

Given the existence of secret detention, it would be difficult if not impossible to determine where or not the US is currently detaining any citizens indefinitely, where they are, how they are being treated, and whether or not they are in fact guilty of those acts for which they are being held.  Even if only non-citizens were indefinitely detained, the US would still be in breach of fundamental principles of human rights and due process of law.

America, Land of the Eerie and Home of the Afraid

Geez.  There's a reason why sales of 1984 have skyrocketed.  Here's a roundup.

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h/t Mark Shea.
Mark Steyn has a series of pieces of awesome.

First:

...The other day the Boston Globe ran a story on how the city’s police and other agencies had spent months planning a big training exercise for last weekend involving terrorists planting bombs hidden in backpacks left downtown. Unfortunately, the Marathon bombers preempted them, and turned the coppers’ hypothetical scenario into bloody reality.

What a freaky coincidence, eh? But it’s the differences between the simulation and the actual event that are revealing. In humdrum reality, the Boston bombers were Chechen Muslim brothers with ties to incendiary imams and jihadist groups in Dagestan. In the far more exciting Boston Police fantasy, the bombers were a group of right-wing militiamen called “Free America Citizens,” a name so suspicious (involving as it does the words “free,” “America,” and “citizens”) that it can only have been leaked to them by the IRS. What fun the law-enforcement community in Massachusetts had embroidering their hypothetical scenario: The “Free America Citizens” terrorists even had their own little logo — a skull’s head with an Uncle Sam hat. Ooh, scary! The Boston PD graphics department certainly knocked themselves out on that.

Meanwhile, back in the real world, Tamerlan Tsarnaev was training in Dagestan, posting terrorist videos on YouTube, and getting fingered by the Russians to the FBI. Who did nothing.

...We’re told that universal surveillance has prevented all kinds of atrocities we can never hear about — an answer straight out of Orwell. Yet oddly, in the ones we do hear about, the perps are hiding in plain sight (Major Hasan with “Soldier of Allah” on his business card), the intelligence services do nothing (the Pantybomber known to the CIA but still permitted to board the plane), and the digital superstate is useless (the Tsarnaev photo rang no bells with the facial-recognition software, but was identified by friends who saw it on TV).

And thus, the bozo leviathan blunders on. Big Politically Correct Brother sees everything . . . and nothing.

Second:

...When the IRS is accused of “targeting,” don’t assume they’re speaking metaphorically. From Politico:

As chairman of the House Homeland Security oversight subcommittee, [Jeff] Duncan (R-S.C.) toured a federal law enforcement facility in late May and noticed agents training with the semi-automatic weapons at a firing range. They identified themselves as IRS, he said.
“When I left there, it’s been bugging me for weeks now, why IRS agents are training with a semi-automatic rifle AR-15, which has stand-off capability,” Duncan told POLITICO. “Are Americans that much of a target that you need that kind of capability..?
“I think Americans raise eyebrows when you tell them that IRS agents are training with a type of weapon that has stand-off capability. It’s not like they’re carrying a sidearm and they knock on someone’s door and say, ‘You’re evading your taxes,’” Duncan said.

A bureaucracy is bad. A politicized bureaucracy is worse. A paramilitary politicized bureaucracy is nuts. And, in fact, evil. There is no reason in a civilized society why the Deputy Assistant Commissioner of Paperwork should have his own SEAL Team Six. As I wrote in the magazine last year:

By the way, I use the word “agents” rather than “officials” because, in the developed world, the paramilitarized bureaucracy is uniquely American. This is the only G7 government whose education minister has his own SWAT team — for policing student-loan compliance. The other day, the Gibson guitar company settled with the feds over an arcane infraction of a law on rare-wood importation — after their factories were twice raided by “agents” bearing automatic weapons. Like the man said, don’t bring a knife to a guitar fight. Do musical-instrument manufacturers have a particular reputation for violence?

The Gibson raid looks a little different in light of recent revelations. Oh, well. Could have been worse. Its chief executive — a Republican donor — might have been shot for “resisting arrest,” right?...

Third:

...Over 4 million people hold US security clearances: That’s the equivalent of giving security clearances to the entire population of New Zealand. According to the U.S. Director of National Intelligence, a total of 642,831 people were approved for Confidential, Secret, and Top Secret clearances in FY 2010 alone (scroll down to page five)...
How seriously do you think those two-thirds-of-a-million people were looked at? The report seems to suggest a turnover of about 600,000 in a typical year, which means that the actual number of Americans with some kind of security clearance from the last half-decade alone could be closer to seven million.
Even more amazing are the words immediately preceding that:

The number of clearances approved could not be obtained for FY 2009 . . .

So the same government that presumes the right to know my phone calls, my emails and my MasterCard purchases doesn’t know how many security clearances it issued in a given year.
The rationale given by defenders of this system over the last few days — oh, relax; there are over 300 million of us; the government doesn’t have time to comb through all the stuff it’s got on you — would seem to apply here: When 4 million people have security clearances, and another 1,800 people are getting new security clearances every day, the government doesn’t even have time to comb through them before it lets them comb through you.
Over at Powerline, Scott Johnson writes of Mr Snowden:

Read the Guardian profile and the Post articles and you will see that Snowden professes no loyalty to the United States. He conceives of himself as a citizen of the world, or of the realm of Digitalia. He does not sound like anyone to be trusted with an assessment on our behalf the costs and benefits of the course of action he has undertaken.

Just so. One reason for the citizenry not to entrust its personal information to the government is that the big, bloated, blundering government is stupid enough to entrust it to Edward Snowden, as it was previously stupid enough to entrust it to Bradley Manning (the Wikileaks leaker)....

And here we have an interesting, different way of looking at where we are now (h/t Mark Shea). Excerpts:

This is satire. Although the news is real, very little actual reporting was done for this story and the quotes are imagined. It is the first installment of an ongoing series that examines the language journalists use to cover foreign countries. What if we wrote that way about the United States?

BOSTON, Mass. — Human rights activists say revelations that the US regime has expanded its domestic surveillance program to private phone carriers is more evidence of the North American country’s pivot toward authoritarianism.

The Guardian, a British newspaper, reported this week that a wing of the country’s feared intelligence and security apparatus ordered major telecommunications companies to hand over data on phone calls made by private citizens.

“The US leadership in Washington continues to erode basic human rights,” said one activist, who asked to remain anonymous, fearing that speaking out publicly could endanger his organization. “If the US government is unwilling to change course, it’s time the international community considered economic sanctions.”

Over the last decade, the United States has passed a series of emergency laws that give security forces sweeping powers to combat “terrorism.” But foreign observers say the authorities abuse those laws, using them instead to monitor ordinary Americans...

And Shea proceeds to sum up the situation, citing a piece from Conor Friedorsdorff in the process. Excerpts:

...The purpose of the State is *supposed* to be the defense of the common good.  The reality is that American state, at any rate is devolving into a vast apparatus of surveillance and oppression of its citizens in the name of Safety.  Between the two of them, Bush and Obama (and their parties) have created all the infrastructure any tyrant will ever need to turn the US into an Orwellian police state:

What we know is that the people in charge will possess the capacity to be tyrants — to use power oppressively and unjustly — to a degree that Americans in 1960, 1970, 1980, 1990, or 2000 could’ve scarcely imagined. To an increasing degree, we’re counting on having angels in office and making ourselves vulnerable to devils. Bush and Obama have built infrastructure any devil would lust after. Behold the items on an aspiring tyrant’s checklist that they’ve provided their successors:

• A precedent that allows the president to kill citizens in secret without prior judicial or legislative review

• The power to detain prisoners indefinitely without charges or trial

• Ongoing warrantless surveillance on millions of Americans accused of no wrongdoing, converted into a permanent database so that data of innocents spied upon in 2007 can be accessed in 2027

• Using ethnic profiling to choose the targets of secret spying, as the NYPD did with John Brennan’s blessing

• Normalizing situations in which the law itself is secret — and whatever mischief is hiding in those secret interpretations

• The permissibility of droning to death people whose identities are not even known to those doing the killing

• The ability to collect DNA swabs of people who have been arrested even if they haven’t been convicted of anything

• A torture program that could be restarted with an executive order

Even if you think Bush and Obama exercised those extraordinary powers responsibly, what makes you think every president would? How can anyone fail to see the huge potential for abuses?

I am not saying no one would resist a tyrant. Perhaps Congress would assert itself. Perhaps the people would rise up. Then again, perhaps it would be too late by the time the abuses were evident. (America has had horrific abuses of power in the past under weaker executives who were less empowered by technology; and numerous other countries haven’t recognized tyrants until it was too late.) Part of the problem is how much the Bush-Obama paradigm permits the executive to do in secret. Take that paradigm, add another successful 9/11-style attack, even after many years of very little terrorism, and who knows what would happen?

Part of the way We the People can make ourselves smart about this stuff is to stop buying into the dumb game of imagining that That Tribe Over There are the Bad Guys and our Tribal Elders care about us and oppose this stuff.

No.  It’s not Left vs. Right on this.  It’s Our Ruling Class vs. the rest of us...

Chesterton remarked:

If there is one fact we really can prove, from the history that we really do know, it is that despotism can be a development, often a late development and very often indeed the end of societies that have been highly democratic. A despotism may almost be defined as a tired democracy. As fatigue falls on a community, the citizens are less inclined for that eternal vigilance which has truly been called the price of liberty; and they prefer to arm only one single sentinel to watch the city while they sleep...

...[W]e’ve asked Caesar to take over yet another task typically handled by God: seeing all that we do, hearing all that we say, and judging it. In payment, Caesar customarily demands that we begin addressing him as “Divine Caesar”. The first Christians declined, and kicked off a revolution that, with time, put Caesar in his place and brought the liberty of Christ to the world. We still have that option. But we have to face the possibility that, as with them, it may cost us our lives.
We begin that revolution, of course, in the heart and mind by listening to St Paul:

I appeal to you therefore, brethren, by the mercies of God, to present your bodies as a living sacrifice, holy and acceptable to God, which is your spiritual worship. Do not be conformed to this world but be transformed by the renewal of your mind, that you may prove what is the will of God, what is good and acceptable and perfect. (Romans 12:1-2)

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h/t Mark Shea

Bleah. I'm Voting for Romney

It behooves me to point out here that I had previously said I would not vote for Romney, based on his propensity to change his stated position at the drop of a hat.  This isn't an encouraging sign for times ahead.

What changed my mind?

President Obama Signed the Indefinite Detention Bill

Well, fun.  Excerpts:

President Barack Obama on Saturday reluctantly signed a defense authorization bill, saying he was concerned about some in Congress who want to restrict options used by counterterrorism officials.

"I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists," he said of the $662 billion legislation.

The White House had lifted a veto threat against the bill after legislators made changes in language involving detainees.

In particular, the legislators added language to make clear that nothing in the bill requiring military custody of al Qaeda suspects would interfere with the ability of civilian law enforcement to carry out terrorism investigations and interrogations in the United States...

Sen. John McCain of Arizona, the top Republican on the Senate Armed Services Committee, said the legislation includes a "national security waiver" that allows the president to transfer a suspect from military to civilian custody if he chooses.

"I want to clarify that my administration will not authorize the indefinite military detention without trial of American citizens," Obama said in a statement Saturday. "Indeed, I believe that doing so would break with our most important traditions and values as a nation."

Obama said a section of the bill provides the "executive branch" with broad authority on military custody for non-citizen detainees...

Hm. He said "my administration will not authorize the indefinite military detention without trial of American citizens." He did not say his administration could not do this--merely that they would not.

Hm.

41 Senators Need to Lose the Next Election

Let Jon Stewart introduce the issue:

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And then, of course, there's wonderful moments like this from C-SPAN and the Senate floor:

At which point, I think there might be some valid concerns.  Because the administration asked that the language excluding US citizens from the bill be removed.  Also, they expressed concern that the bill unduly restricts Executive power.

And the bill, apparently (according to Senator Lindsey Graham), declares the whole world, "including the homeland," part of the battlefield.

The above refers to the portions of the bill which were passed.  When it comes to what might have been...well, the Senate has officially lost it.  Evidence:

"Offered to the National Defense Authorization Act for Fiscal 2012 (S.1867), amendment No. 1274 would have allowed the U.S. government to detain an American citizen indefinitely, even after they had been tried and found not guilty, until Congress declares an end to the war on terror."

Sponsored by Senator Jeff Sessions of Alabama. Voted for by 41 members of the US Senate, including two Democrats, one Independent, and the rest Republicans.

Let us review the Constitution...I was sure...ah, yes. Here it is.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Methinks the constituents of 41 US Senators need to make known, loudly and clearly, exactly what will happen next election.  They all need to lose reelection--every one of the 41 Senators who voted for this amendment.  If some evidence comes forward to show that Sen. Paul grossly mischaracterized the nature of the amendment, I'll take a different position.

UPDATE: The Wall Street Journal makes that really unlikely:

...the fight was closer over an amendment proposed by Sen. Jeff Sessions of Alabama, the top Republican on the Judiciary Committee. The amendment focused on a scenario where an al Qaeda suspect is acquitted in a court—whether military or civil—but is still judged a terrorist threat...

"Like any other captured combatant, he can be held as long as hostilities continue...."

Mr. Paul didn’t think so, and he focused particularly on the case where the accused terrorist was an American citizen. “If the evidence does not support conviction, it would be against everything we believe in and fight for in America to still allow the government to imprison you at their whim,” he said last night in a statement.

Earlier in the week, he told the Senate, “There is one thing and one thing only protecting innocent Americans from being detained at will at the hands of a too-powerful state – our Constitution, and the checks we put on government power"...

The Sessions amendment failed on a 41-59 vote. Even so, under some interpretations of current law, the president could order the kind of preventive detention Mr. Sessions advocated.

But otherwise, this is gross misconduct.  These people are unfit for the office they hold.

Now, some claim there's nothing to be concerned about with Senate Bill 1867, otherwise known as the National Defense Authorization Act:

...Section 1031, which relates to the use of the armed forces to detain covered people “pursuant to the Authorization for Use of Military Force,” has a very narrow purpose of describing detention “under the law of war” of people who either participated in the terrorist attacks of Sept. 11, 2001, or is a member or “substantial supporter” of al-Qaida, the Taliban, or “associated forces that are engaged in hostilities against the United States or its coalition partners.”

This DOES apply to U.S. citizens, but it has already been established in plentiful detail that traitors who join forces with the enemy are subject to military law, including detention and worse.

This concern about protecting Americans who might be judged by the government to be at war with the United States seems to be misplaced, at best, and mischievous at worst. There is a virtually nil chance that you or your neighbors will be swept up off the street and locked up in “indefinite detention” unless you are indeed engaged in war against the United States.

At that point, sorry, you lose most of your civil liberties...

Hang on. Wait a minute. Isn't there some crucial middle step in this process between "war with the United States" and "indefinite detention?" Something...oh, what's the phrase...due to people? Some sort of process? Involving law?

Article 3, Section. 3.

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

So the people who argue there's nothing to be afraid of end up giving me cause to be, frankly, rather afraid.

More Information:

Bill Number S.1867 for the 112th Congress 

Authorization for Use of Military Force
Executive Office of the President, Office of Management and Budget on the bill.
The Washington Post
Mark Shea
The Anchoress

Senators Voting Yea on Sen. Sessions' Amendment

1. Alexander (R-TN)
2. Ayotte (R-NH)
3. Barrasso (R-WY)
4. Blunt (R-MO)
5. Boozman (R-AR)
6. Burr (R-NC)
7. Chambliss (R-GA)
8. Coats (R-IN)
9. Coburn (R-OK)
10. Cochran (R-MS)
11. Cornyn (R-TX)
12. Crapo (R-ID)
13. DeMint (R-SC)
14. Enzi (R-WY)
15. Graham (R-SC)
16. Grassley (R-IA)
17. Hatch (R-UT)
18. Hoeven (R-ND)
19. Hutchison (R-TX)
20. Inhofe (R-OK)
21. Isakson (R-GA)
22. Johanns (R-NE)
23. Johnson (R-WI)
24. Kyl (R-AZ)
25. Lieberman (ID-CT)
26. Lugar (R-IN)
27. Manchin (D-WV)
28. McConnell (R-KY)
29. Moran (R-KS)
30. Murkowski (R-AK)
31. Portman (R-OH)
32. Pryor (D-AR)
33. Risch (R-ID)
34. Roberts (R-KS)
35. Rubio (R-FL)
36. Sessions (R-AL)
37. Shelby (R-AL)
38. Thune (R-SD)
39. Toomey (R-PA)
40. Vitter (R-LA)
41. Wicker (R-MS)

Here's the OMB's commentary on the bill.  Egregious excerpts:

“The Administration supports Senate passage of S. 1867, the National Defense Authorization Act for Fiscal Year (FY) 2012. The Administration appreciates the Senate Armed Services Committee’s continued support of our national defense…

While there are many areas of agreement with the Committee, the Administration would have serious concerns with provisions that would: (1) constrain the ability of the Armed Forces to carry out their missions;…

Detainee Matters: The Administration objects to and has serious legal and policy concerns about many of the detainee provisions in the bill. In their current form, some of these provisions disrupt the Executive branch’s ability to enforce the law and impose unwise and unwarranted restrictions on the U.S. Government’s ability to aggressively combat international terrorism; other provisions inject legal uncertainty and ambiguity that may only complicate the military’s operations and detention practices.

Section 1031 attempts to expressly codify the detention authority that exists under the Authorization for Use of Military Force (Public Law 107-40) (the “AUMF”). The authorities granted by the AUMF, including the detention authority, are essential to our ability to protect the American people from the threat posed by al-Qa’ida and its associated forces, and have enabled us to confront the full range of threats this country faces from those organizations and individuals. Because the authorities codified in this section already exist, the Administration does not believe codification is necessary and poses some risk. After a decade of settled jurisprudence on detention authority, Congress must be careful not to open a whole new series of legal questions that will distract from our efforts to protect the country. While the current language minimizes many of those risks, future legislative action must ensure that the codification in statute of express military detention authority does not carry unintended consequences that could compromise our ability to protect the American people.

The Administration strongly objects to the military custody provision of section 1032, which would appear to mandate military custody for a certain class of terrorism suspects. This unnecessary, untested, and legally controversial restriction of the President’s authority to defend the Nation from terrorist threats would tie the hands of our intelligence and law enforcement professionals. Moreover, applying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets. We have spent ten years since September 11, 2001, breaking down the walls between intelligence, military, and law enforcement professionals; Congress should not now rebuild those walls and unnecessarily make the job of preventing terrorist attacks more difficult. Specifically, the provision would limit the flexibility of our national security professionals to choose, based on the evidence and the facts and circumstances of each case, which tool for incapacitating dangerous terrorists best serves our national security interests...

Section 1034′s ban on the use of funds to construct or modify a detention facility in the United States is an unwise intrusion on the military’s ability to transfer its detainees as operational needs dictate...In short, the matters addressed in these provisions are already well regulated by existing procedures and have traditionally been left to the discretion of the Executive branch...

Broadly speaking, the detention provisions in this bill micromanage the work of our experienced counterterrorism professionals, including our military commanders, intelligence professionals, seasoned counterterrorism prosecutors, or other operatives in the field. These professionals have successfully led a Government-wide effort to disrupt, dismantle, and defeat al-Qa’ida and its affiliates and adherents over two consecutive Administrations. The Administration believes strongly that it would be a mistake for Congress to overrule or limit the tactical flexibility of our Nation’s counterterrorism professionals.

Any bill that challenges or constrains the President’s critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation would prompt the President’s senior advisers to recommend a veto…

Constitutional concerns: A number of the bill’s provisions raise additional constitutional concerns, such as sections 233 and 1241, which could intrude on the President’s constitutional authority to maintain the confidentiality of sensitive diplomatic communications. The Administration looks forward to working with the Congress to address these and other concerns.”