Obama the Ominous Tyrant (or Not)

Did Obama sign a law granting the Presidency power to detain American citizens indefinitely without trial? No, he did not. This is yet another manufactured story from the irrational left, which simply ignores the actual facts, like so many a Tea Partier would. I have always advised people not to trust the media implicitly but to check their facts whenever they say something that seems incredible. Like that a liberal Democrat like Barack Obama would sign into law such an act. Bush, maybe. But Obama? That’s an extraordinary claim. It requires extraordinary evidence. Newspapers and the Daily Show don’t rate as such (as much as I love the Daily Show, they ironically trust the mainstream media too often; I say ironically, because their raison d’être is practically, or precisely, not to do that).

And in this case I can advise a very specific rule (and this applies just as well to my recent blog on regulatory law) or anything else in politics: read the damn law. It’s not like it’s a hardship to find and read the exact text of our laws. Even bills still being debated and voted on are available for free, online. Our nation has set up a whole website just for you to be able to do that (it’s called THOMAS, a project of the Library of Congress). You can search it for bills by number or title or even keywords. If you did that in this case (say, by starting from a story online about this supposedly appalling, tyranny-creating bill), you’d find the bill’s status page (H.R. 1540 was the final version), and from there discover the full text of the version passed by the Senate (and signed into law by the President). (You can also download a PDF version of the physical bill). The relevant section is section 1021 (page 265ff. in the PDF).

BTW, one thing in this bill that no one reported on, which I think might actually be the most important thing in it, is that it eliminated [in section 541] the old UCMJ provision that allowed service members to rape their own wives: that’s right, the law used to define rape as any of a list of awful things done to a woman except one’s wife (explicitly: it said wives can’t even in principle be the rape victims of their own husbands). No shit: the very first line of this law read: “Any person subject to this chapter who commits an act of sexual intercourse with a female not his wife, by force and without consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct.” So you can force your wife to have sex with you without her consent. Nice. In this new Act, signed by Obama, the phrase “not his wife” is now deleted. The new law has also eliminated the bizarre assumption that only women can be raped and only men commit rape, by substituting “person” for all gendered terms.

But enough on that digression (what does the press care about advances in women’s rights?). Let’s get to the supposedly “tyranny creating” part of the law. That’s the part that enumerates the President’s options for how to treat enemy combatants, which this law says [in section 1021(c)] “may include” military trial, civil trial, deportation to another country (it thus technically authorizes rendition, although there may be other laws limiting that), or “detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force” (which we all know means forever; and yes, the Supreme Court has certainly proved it doesn’t care about such obvious Doublespeak: as those of us know who were appalled by the Supreme Court’s upholding of the Mickey Mouse law that establishes “indefinite extension” of all copyrights, in order to forever protect Disney’s ownership of Mickey Mouse among other things, in defiance of the U.S. Constitution which mandates copyrights exist for only “limited times”; the court argued that “indefinite” does not mean “forever” because Congress might set a limit in future; yeah, right…fuck you, Supreme Court). Okay, back to the main point…

First, the law specifically says [in section 1021(c)(1)] that such “indefinite detention” without trial must be in accordance with “the law of war” (which consists of a number of treaties governing the treatment of POWs and enemy combatants, which treaties include requirements for the legal review of the detainee’s status). So it’s not just any detention willy nilly with no rules whatever. Second, the law says [in section 1021(b)] that the only people who can be thus detained are those who have been significantly involved in perpetrating the 9/11 attacks or physically aiding and abetting Al Qaeda or the Taliban (with whom we are formally at war).

Several bloggers and pundits have casually ignored these facts. But still, one can balk at the idea that now the President has the power to indefinitely detain without trial even American citizens, without even having to prove they did anything, just by claiming they did. Technically that’s not true, as we are obligated by treaties to allow detainees to challenge such claims made against them, even granting them trials; and tribunals must decide a person’s status, the President can’t just decide that. But still, allowing American citizens to be treated like enemy or even unlawful combatants would still be a shocking erosion of American legal and constitutional rights. It’s just that this law doesn’t do that.

Because the same law says [in section 1021(e)] 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.” Those few pundits who actually notice this section, claim it is “vague” and insufficient to protect our rights. They are full of shit. This is not vague. This is what lawyers call broad language. It is total and sweeping in scope. It says nothing in this section. That means nothing. Nada. Zip. Not one thing. End of story. And what is an existing law or authority pertaining to American citizens? Oh, I don’t know, let’s mention the fifth amendment, the sixth amendment, the eighth amendment (indeed even the ninth amendment). The most important of which is that no citizen may be “deprived of life, liberty, or property, without due process of law” which includes “the right to a speedy and public trial, by an impartial jury…and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

Since this National Defense Authorization Act for Fiscal Year 2012 explicitly says nothing in it can ever be construed “to affect” those laws, nothing in it takes away any rights from any American citizens. So why is everyone claiming it does? Because they are so dogmatically lost in the storyline that facts don’t matter to them anymore? Because they blindly trust what people on TV tell them and don’t go read the law for themselves even though it’s absurdly easy to do that? You tell me. (And before you say, like some already have, that “the Patriot Act” already gave the President the power to detain American citizens indefinitely without trial, go read it first and state the section where it says that; good luck finding it.) Because of all this nonsense, Obama had to add a completely unnecessary signing statement saying he wouldn’t do what the law already prohibits, simply to satisfy these nutheads. I only hope you weren’t one of them. If you were, then as a responsible skeptic, it is my hope you’ll do better next time.

In the meantime, myth debunked.

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    • The Wikipedia entry already correctly confirms what I said. It then has a section simply documenting the controversy, which doesn’t take a position on whether anything anyone said is correct (it’s just reporting what they said). Which is the kind of neutrality Wikipedia tends to maintain. (Although it is out of date; it mis-identifies the sections, probably because it was written for an earlier draft and someone revised it without correcting that. And it does conflate the ACLU complaint, which is about how it authorizes treatment of non-citizens, with the issue of detaining citizens. Those are not the same issue.)

  1. In accordance with the “law of war”? Which one would that be? The Geneva Conventions make no distinction like “unlawful combatant” such as the administration (starting with Bush) have built so much upon.

  2. I read interesting laws when I have the time, but I don’t have time to read all of them. Thanks for the info. It’s nice to know this can’t be combined with the AETA to lock us up forever for protesting mistreatment of animals.

  3. I’m extremely relieved to hear that Obama doesn’t have the power to order an American citizen imprisoned indefinitely without a trial. Nope, the only thing he can do to American citizens is have them blown up by a missile fired from a remote-controlled drone! That’s so much more comforting, I can’t even tell you.

    • Adam Lee: Nope, the only thing he can do to American citizens is have them blown up by a missile fired from a remote-controlled drone! That’s so much more comforting, I can’t even tell you.

      I wouldn’t be surprised if even WWII saw plenty of occasions of axis collaborators who were U.S. citizens being killed in the field by U.S. forces. At any rate, that case has nothing to do with this law. Indeed, this law would make that act illegal–unless it was already legalized by prior law (which would make it irrelevant to this blog post). So you should actually research the case law and legal grounds behind that assassination case and make sure you understand it better before casting judgment.

  4. So Glenn Greenwald argues that that’s actually a false reading of the bill, due to the fact that that covers only that section, while indefinite detention is allowed and required also in section 1032 [note: greenwald refers to these sections as 1021 and 1022 when they are 1031 and 1032, but the sections 1031 and 1032 in the final bill say the same thing as what he refers to as 1021 and 1022].

    Relevant section of the article linked above:

    Myth #3: U.S. citizens are exempted from this new bill

    This is simply false, at least when expressed so definitively and without caveats. The bill is purposely muddled on this issue which is what is enabling the falsehood.

    There are two separate indefinite military detention provisions in this bill. The first, Section 1021, authorizes indefinite detention for the broad definition of “covered persons” discussed above in the prior point. And that section does provide 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.” So that section contains a disclaimer regarding an intention to expand detention powers for U.S. citizens, but does so only for the powers vested by that specific section. More important, the exclusion appears to extend only to U.S. citizens “captured or arrested in the United States” — meaning that the powers of indefinite detention vested by that section apply to U.S. citizens captured anywhere abroad (there is some grammatical vagueness on this point, but at the very least, there is a viable argument that the detention power in this section applies to U.S. citizens captured abroad).

    But the next section, Section 1022, is a different story. That section specifically deals with a smaller category of people than the broad group covered by 1021: namely, anyone whom the President determines is “a member of, or part of, al-Qaeda or an associated force” and “participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.” For those persons, section (a) not only authorizes, but requires (absent a Presidential waiver), that they be held “in military custody pending disposition under the law of war.” The section title is “Military Custody for Foreign Al Qaeda Terrorists,” but the definition of who it covers does not exclude U.S. citizens or include any requirement of foreignness.

    That section — 1022 — does not contain the broad disclaimer regarding U.S. citizens that 1021 contains. Instead, it simply says that the requirement of military detention does not apply to U.S. citizens, but it does not exclude U.S. citizens from the authority, the option, to hold them in military custody.

    • Greenwald is pretty lousy at reading (or he is reading the wrong bill: he gives the wrong section titles, not just the wrong numbers). Section 1032 does not authorize detention; 1031 does (which 1032 references). 1032 only states that the military has responsibility for detaining the people who are allowed to be detained under 1031 (this was the GOP’s fuck you to Obama, denying him power to put terror suspects in civilian prisons). Section 1032(b) then states: “The requirement to detain a person in military custody under this section does not extend to citizens of the United States.” So 1032 not only does not pertain to who can be detained (only who shall do the detaining), but 1032 explicitly exempts U.S. citizens (as well as lawfully resident aliens, “except to the extent permitted by the Constitution of the United States”: 1032(c)).

      (The other sections of Greenwald’s analysis reveal similar reading comprehension incompetence. But those mistakes aren’t relevant to what I’ve blogged about.)

  5. I’m a little confused, because I do believe Obama in a speech a while ago outlined a category of detainee where they were considered “a threat” and yet the evidence against them was not admissible in court for some reason.

    • Ben: I’m a little confused, because I do believe Obama in a speech a while ago outlined a category of detainee where they were considered “a threat” and yet the evidence against them was not admissible in court for some reason.

      That has nothing to do with this law. So it’s moot here.

      (But in case you want more info, I believe you are thinking of the case of Binyan Mohammed, where a terrorist [Binyan; not a U.S. citizen] was captured by a sting operation using an actual commercial airline [not an American one], and revealing which airline helped capture the suspect would pose a threat to national security [in ways that could not be stated without revealing who the airline was who the personnel were involved in that], so a judge reviewed all the evidence in camera and agreed there was no evidence corroborating the suspect’s claims [those claims, I agree, sounded wildly absurd, so I am not surprised], therefore presenting that evidence would serve no cause of justice but likely get a lot of innocent people killed, so the evidence was not allowed in [nor is was the suspect allowed to [see the evidence so as to] communicate [it to] anyone, for the same reason: [they said] he intends to do people harm by releasing information about our national security to our enemies at war]. That is actually a legitimate case of redress and review, and the judge laid out a hundred years of case law supporting that call [this grounds for not allowing evidence has been a feature of common law for a while]. Anyway, this occurred long before the current law was passed or even being debated. The wiki article on it is here; and I used that to track down the judicial ruling and read it cover to cover months ago. This was another instance where the media did not report on the case well.)

  6. Point of order. We are not formally at war with Al Quada, nor could we be, as they are not and never have been a nation or national government, but are rather a criminal organization. We are also not formally at war with the Taliban. Congress has not declared war since 1942, against Hungary, Bulgaria and Romania. Otherwise, an interesting and relevant article.

    • Dalillama, we are indeed formally at war with Al Qaeda, because Congress passed an Act of AMF against all those responsible for the 9/11 attacks and their co-conspirators.

      There is no actual requirement that we can only declare war against sovereign nations. Scour the Constitution, you won’t find that in there. And there is no requirement that Congress use the word “war” either (the Supreme Court even declared an authorization of force as legally equivalent to declaring war in 2003, but this just confirms a century of case law; you shouldn’t be surprised: Article 1, Section 8 of the Constitution says Congress has power “to declare War [and] grant Letters of Marque and Reprisal,” and as the phrase “Letters of Marque and Reprisal” is deemed archaic and no longer necessary [we can use other words now to mean the same things], so has the phrase “declare war” been deemed antiquated and unnecessary, and other legal terms recognized as equivalent).

      So the claim that we’ve never declared a constitutional war since 1942 is mere semantics with no legal relevance. Congress uses the language “authorization to use military force” and that is fully constitutional and recognized as equivalent to a declaration of war except when statutes (not the Constitution) specify a distinction (see this report ["Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications"] cataloging the whole history of the practice back to the 19th century). The Iraq war, for example, was passed by Congressional Authorization of Military Force. As was our war with the 9/11 attackers. Those acts contain specific language that essentially entails that they are legally equivalent to a declaration of war (in terms spelled out by the War Powers Act), or specific language that details in what ways they are not. There is nothing unconstitutional about this. Nor would it make any significant difference if they used the phrase “declaration of war.”

  7. Section 1031 (b)(2) says:
    9 (2) A person who was a part of or substantially
    10 supported al-Qaeda, the Taliban, or associated forces
    11 that are engaged in hostilities against the United
    12 States or its coalition partners, including any person
    13 who has committed a belligerent act or has directly
    14 supported such hostilities in aid of such enemy
    15 forces.

    It defines “covered person” as someone who “who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces” or “has committed a belligerent act” … which is so vague as to cover anyone, if you try hard enough – particularly if you never have to go to court to prove your allegations.

    You said:
    “… the idea that now the President has the power to indefinitely detain without trial even American citizens, without even having to prove they did anything, just by claiming they did. Technically that’s not true, as we are obligated by treaties to allow detainees to challenge such claims made against them”

    – but how many folks in GITMO right now have been able to challenge the claims made against them? How many of those treaties cover their humane treatment while in custody, and which our government has blatantly flouted?

    Anyway … I have serious issues with holding someone indefinitely, without trial, REGARDLESS of their citizenship.

    The fact that people in this country are just fine with it, so long as it doesn’t apply to THEM, really makes me angry. People are people, and should all be dealt with respectfully. Even the ones with a mental illness that makes them dangerous should be treated respectfully. I think this is important, even if it is also necessary to keep them isolated from the rest of us so as to keep them from harming others.

    • Virginia: It defines “covered person” as someone who “who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces” or “has committed a belligerent act” … which is so vague as to cover anyone, if you try hard enough – particularly if you never have to go to court to prove your allegations.

      That’s not true. It does not “cover” anyone who commits any belligerent act. First, legally a “belligerent act” means an act of war (not just vandalism or any violence). It’s defined under treaties covering the category of “unlawful combatants.” Second, the term is here qualified as “in aid of such enemy forces.” In other words, they are just making sure anyone who actively supports the war against us, in furtherance of the cause behind the 9/11 attacks, is covered. No one else is covered.

      On GITMO, see my comment above.

      But otherwise I agree with you: there needs to be more efficient due process for all detainees. Obama has sincerely tried to make that happen, but Congress blocks nearly everything he tries to do.

  8. My favorite part of everything you wrote (accurate or not), and everything that we’re all debating is that it’s so parallel to this ridiculous reality show / celebrity sighting / 24-news-drama that persists in this nation. God forbid we expect your average American to be able to name a single contender in the current GOP race. I’m sure he or she could probably name all of Kim Kardashian’s pet ferrets.

    My point being that while we’re all sitting here debating whether or not this bill applies to US citizens (which law professors seem to mostly agree it could given the vagueness), we’re ignoring the fact that this entire bill is 100% antithetical to the ideology, philosophy, and intent of these United States.

    How about we turn the discussion into WHY it’s okay for the United States to pickup anybody it wants, even on their own home soil, and crate them without so much as a murmur as to what they’ve done. You say the bill requires them to be connected to 9/11 or the Taliban. And how would we know that? Because one person deems it so?

    Sure we all assume that the guys in Guantanamo are bad guys. But if since we’re so sure, then why in god’s name can’t we / don’t we charge them, prosecute them, and need be, punish them? This codification and people dancing around the finer points of it is legal insanity. And moreover, the fact that people are defending it is abhorrent. And to be clear, I’m not even considering individual rights, at this point those be damned. I’m considering the underlying fabric of what the United States is SUPPOSED to represent, and saddened at the sort of mentality that is left of it.

    From my point of view, and even if we killed every single one of them, the “terrorists” won the war YEARS ago.

    • Kim Kardashian has pet ferrets?

      Shows how out of that loop I am. :-)

      Kevin Ludlow: How about we turn the discussion into WHY it’s okay for the United States to pickup anybody it wants, even on their own home soil, and crate them without so much as a murmur as to what they’ve done.

      This law does not make that okay. So your concern is either irrelevant, or directed at, e.g., the Bush administration’s behavior.

      You say the bill requires them to be connected to 9/11 or the Taliban. And how would we know that? Because one person deems it so?

      Treaties require tribunals to determine this (not one person). Likewise, detainees can request hearings to protest their innocence. Follow the links in the blog to learn more.

      The Guantanamo detainees are a separate problem, because the Bush administration botched the way their cases were handled, and Congress won’t allow Obama to do anything about it. But the detainees there have had access to tribunals and hearings and legal representation. Indeed, most would be released except for the fact that their home countries don’t want them; nor does anyone else; and Congress has legally banned the President from transferring them to the mainland. Those for whom Obama could find countries willing to take them have been released, and others are on track for the same. (There is a summary on wikipedia.) Others are getting trials arranged (but as you may have noticed, Congress has even been blocking that, so Obama can’t even get them tried).

  9. Re: Binyan Mohammed.

    1. Given that the name of the airline allegedly involved formed part of the name of the case as reported I’m not sure what informtion you are claiming the judge ordered withheld.

    2. Are you sure that a man released in 2009 is not “allowed to communicate with anyone”?

    3. What is your take on the fact that Mr Mohammed won the case he brought in the UK relating to the allegations of torture and the appeal to have made public sections of the judgement that the United States government wanted withheld?

    • Matty: Oh, you’re right; it wasn’t the name of the airline that was a secret, it was the names of the personnel on the plane (and of those who arranged their being there). Binyan didn’t know their names; he was using the courts to force that evidence into the open. Binyam’s torture case in the UK was against the UK, not the US. He lost the case against the US for lack of evidence. It was MI5 who tortured him. Although the Bush administration almost certainly knew about this, proving they specifically asked that it be done is a tall order (do I think the Bush administration acted criminally in these cases? Yes. But that’s different from being able to prove it, much less get any redress if you could).

  10. It’s been deeply, deeply scary to me the way so much of the blogosphere (and, yes, I am pointing at Daily Kos) managed to flip seamlessly from declaring that Bush was Emperor Palpatine to declaring that Obama was Emperor Palpatine without apparently drawing breath, modifying any arguments, or noticing any facts.

    Is it any wonder that so many Republicans get elected? The Republican message is “Vote Republican or the Democrats will destroy America”; the Democratic message is “Democrats are just as bad as Republicans. But please vote for us anyway! Maybe! Or stay home!”

  11. And how about

    “Binyan Mohamed the Obvious Terrorist (or Not)?

    Given the horrible murkiness of this whole story and the non-availability of some evidence, the inadmissibility of most of it because obtained under torture, etc, etc. you were a bit too glib, Richard, with the “BM the terrorist” line. You fell into precisely the trap you warn others of.

    Perhaps, as he was legally resident in the UK when this all began, you’d like to see the latest development here – http://www.guardian.co.uk/world/2010/nov/17/mi5-officer-binyam-mohamed-case?intcmp=239 – which is widely understood as acknowledgement that MI5 was well out of order, complicit in both rendition and torture but, “Sorry, guys, the whole thing is now such a dog’s breakfast that we’d never get a conviction.”

    Presented time and again with that analysis, no politician and no Director of Public Prosecutions (we only have one!) has attempted to deny it.

    • Maureenbrian: What the UK did is not relevant to American law. The American case only concerned Binyam’s claims to have been tortured (by Americans; what happened to him in anyone else’s custody was not actionable in that case). Which he had no evidence of, as a court determined. The issue of his guilt was a separate matter. Note that he was released almost immediately once Obama took office; and he was not a U.S. citizen, so he isn’t relevant to this blog. But he got his due process anyway (albeit jacked over by the Bush administration). The evidence was all botched by the Bush administration and he was indeed released. But IMO his behavior in the legal process is morally sufficient to ensure he intended harm against others (e.g. his declarations in court and the way he mounted his defense had guilt written all over them; and reading between the lines, the court in effect found that his civil case had only one discernible purpose: to expose allied agents for reprisal by Al Qaeda).

  12. How does the treatment of Jose Padilla comport with the premise of a constitutional right to a speedy trial?

    He is an American citizen, arrested in the U.S., then held (tortured) in a military prison for 3.5 years without charges.

    AFAIK, his detention is considered lawful.

    • Gingerbaker: How does the treatment of Jose Padilla comport with the premise of a constitutional right to a speedy trial?

      That was illegal; and the courts said so. Padilla got his due process (he also had continuous access to lawyers, hearings, and all legal processes available to any citizen). That it took so long is the result of the Bush administration not giving a shit about the laws of this country and trying every legal device to avoid the inevitable (and the courts called them on that shit). Notably, this new law reaffirms that Padilla’s treatment was illegal.

      (Although, BTW, claims of his being tortured are dubious and were never proven. It was only ever raised as a legal tactic by his lawyers. And if you trust lawyers, I have some land in Florida to sell you…)

    • robertbaden: So are Korea and Vietnam recognized as officially being wars now?

      Not calling them wars is pure and meaningless semantics. So in that sense, yes.

      But there is a significant difference between those wars and others (like the one we’re in now, or Gulf War I and II, and so on), because (as far I understand it) Congress never passed any resolution authorizing military force in Korea or Viet Nam, so one could argue they were illegal. However, the Presidents claimed treaty authority instead (i.e. Congress approved the wars “de facto” when it approved the treaties that required us to commit military forces; the legal argument held up, and I admit it can in come cases be correct, whether in these cases I don’t know as I have not studied all the issues involved in them).

      In fact, it was shit like that that led Congress to pass the War Powers Act in 1973 (and even that did not require Presidents to always seek Congressional approval first, only that they needed it to continue an action beyond a certain point).

  13. Even if the law could be construed as narrowly as you claim, it wouldn’t matter. As long as people can be indefinitely detained without trial, it means that any accused person, regardless of guilt or innocence, can be detained. And anybody can be accused.

    • Patrickbarrett: Even if the law could be construed as narrowly as you claim, it wouldn’t matter. As long as people can be indefinitely detained without trial, it means that any accused person, regardless of guilt or innocence, can be detained. And anybody can be accused.

      I’m not sure what you mean. Construed one way, it’s simply false (American citizens cannot be detained indefinitely without due process; thus “an accusation” is not sufficient; so this law does not allow the indefinite detention of citizens “regardless of guilt or innocence”). Construed another way, it’s simply irrelevant (the Constitution permits American citizens to be detained indefinitely in consequence of due process; indeed, it then even permits them to sold into slavery; yes, slavery remains legal in the Constitution, as long as you are convicted of a crime by due process of law). And construed yet a third way, it’s moot to the present blog (it would allow the indefinite detention of non-citizens who are not arrested inside the U.S. and not legal aliens, but my blog isn’t about that case; and even those people have some right to due process under treaties to which the U.S. is signatory; even so, I agree they should be given more rights in that regard and/or the idea of an “indefinite war” should be legislatively put to an end, e.g. I would like to see a Constitutional amendment mandating that no Congressional authorization of military force may be passed without simultaneously passing a non-token war tax on all citizens; when people have to actually pay for Congress’s wars, I predict you’ll see a lot fewer of them, and they won’t last very long.)

  14. As I understand it was the Moroccan secret police who did the actual torturing. MI5 and MI6 were found to have been giving the Moroccans information to use in questioning while knowing what form that questioning took. The CIA were accused of delivering Mohammed to Morocco and requesting the torture.

  15. I acknowledge your point that you made in #11. You have far outstripped my own petty pedantry. ;)
    In re #14, though, Congress did pass the Gulf of Tonkin Resolution in 1964 authorizing force, so by the standards of #11, that one’s a war. Korea was justified on a treaty basis due to a U.N. resolution mandating a police action. Also, War Powers Act or no, I’m not 1oo% convinced that the President has any Constitutional authority to send troops anyplace until Congress has authorized military force. I can see the argument that Congress has passed a law ceding the power to authorize military force temporarily to the President, but I’m not convinced that they’ve got the authority to do that.

    • Dalillama: Oh, yes, that’s right, the Gulf of Tonkin Resolution gave the Viet Nam war Congressional approval. Good reminder. So that one makes the list. As to the other point: the War Powers Act itself gives the President a Constitutional authority to send troops anyplace until Congress has authorized military force (not literally anyplace, but near enough*). Because the Constitution says Congress decides those powers, the WPA gives those powers, and Conrgress passed the WPA. QED.

      * [The President must have a "treaty, statute, or immanent threat to invoke," but there are a lot of those; see the relevant discussion in and under Is Obama a War Criminal?, esp. with the followup on April 5]

  16. #26 Incorrect, MI5 didnt torture him. The case against the UK was that MI5 was complicit (knew what was happening and didnt do anything) in his torture in US custody. They requested that a list of names be put to him.

    Another Correction: His case against the US was dismissed due to Obama using his state secrets privilege.

    • Renolds: Incorrect, MI5 didnt torture him. The case against the UK was that MI5 was complicit (knew what was happening and didnt do anything) in his torture in US custody.

      You’re right, it wasn’t necessarily MI5 agents torturing him, but delivering him to agents of the governments of Pakistan and/or Morocco, who supposedly did the deed (standard Bush era rendition). And the accusation (against the U.S.) was that this was at the “behest” of the U.S., not that the U.S. did the torturing (see the Observer story on this). The only evidence of this came from MI5 records of the U.K. asking the U.S. to ask its compatriots in (whichever) country to ask Binyam certain questions, during the time Binyam claimed to have been tortured. (BTW, I certainly agree all of this should be made illegal; Obama’s executive order forbidding it is not sufficient, because it won’t outlast his Presidency. Legislation keeps being proposed, but I don’t know what it’s status is.)

      Another Correction: His case against the US was dismissed due to Obama using his state secrets privilege.

      Sort of. It was in fact so dismissed, but was in effect dismissed for lack of evidence. Binyam’s lawyers claimed the evidence would be got by questioning certain people involved in his capture using the civilian airline that Binyam was suing. The U.S. filed a motion to suppress, and that’s the issue that went to the Supreme Court. The judge in that case reviewed the evidence and concluded there was nothing probative (you can’t go on “fishing expeditions” to override a privilege, not in any case, e.g. you can’t subpoena someone’s lawyer’s legal documents just to see what’s in them, because of the lawyer-client privilege), and therefore the Obama administration had valid grounds to quash Binyam’s suit on the state secrets privilege. The judge very clearly spelled out that the state secrets privilege does not quash just any evidence. If Binyam could produce evidence, for example, that a specific person would have known who tortured him or witnessed the torture or knew he would be tortured, that might override privilege (insofar as the torture in question was a crime), but there was no reason to believe the extraction team had any relevant knowledge, as Binyam himself admitted he was tortured by other people who had no contact or connection with the extraction team. All they could reveal was the network by which the U.S. moved prisoners around and how it operated, which was indeed a state secret, but in and of itself not evidence of torture.

      It’s important to note that the judge who reviewed the evidence made it very clear in his ruling:

      [The rules of law mandate that the Department of Justice] will not defend an invocation of the privilege in order to: (i) conceal violations of the law, inefficiency, or administrative error; (ii) prevent embarrassment to a person, organization, or agency of the United States government; (iii) restrain competition; or (iv) prevent or delay the release of information the release of which would not reasonably be expected to cause significant harm to national security.” … That certification here is consistent with our independent conclusion, having reviewed the government’s public and classified declarations, that the government is not invoking the privilege to avoid embarrassment or to escape scrutiny of its recent controversial transfer and interrogation policies…

  17. Did any media outlet get this right? Need to move away from the idiots that are failing at their damn job by misinforming me.

  18. Declarations of war have gone out of style since WWII, and not just in the US. Since that war, has any war been declared?

  19. Is Richard aware of the Enemy Expatriation Act coming down the pipeline soon near you, sponsored by Lieberman and Denton? It’s the loophole for the NDAA. The NDAA has some vague wording which Richard, I’m sure parses, to make Obama look like the victim in this affair. Poor victim Obama; blows up an American citizen on the other side of the world and three others in the wrong place at the wrong time – and all without due process – it’s usually called murder but in a nation no longer under rule of law this is no outrage, only commonplace in these times.

  20. You might want to forward this to the various US congresscritters who do think (and have said publicly) that this does apply, in all its particulars, to US citizens and people living in the US.

    I’ll see if I can find that C-SPAN video.

    • OgreMkV: Make sure you get the timeline right. The law didn’t have this provision in it at one point, so a lot of the video of congressmen complaining was in reference to that early draft, the result of which was the revision that did get passed. Any congressman who still says the same thing of the present bill is clearly not reading the revised draft. But odds are, all the video you will find will be of complaints against the earlier draft.

  21. Okay, I’m confused. Having read this blog entry, I have been arguing that the law does not actually allow for the indefinite detention of American citizens. Also, section 1021 in the bill you link to on thomas.loc.gov has to do with Maritime Readiness. However, we do still have the internets aflame with a great wailing and gnashing of teeth.

    Today we even have Ron Paul (much to the glee of his teeming internet horde) giving a speech on the House Floor specifically about Section 1021 and the indefinite detention of U.S. Citizens.

    I’m also confused that govtrack.us lists H.R. 1540 as the one signed into law, and not S. 1867.

    Maybe I should stop trying to unravel legislation at 1 in the morning.

    • Ed Cates: Also, section 1021 in the bill you link to on thomas.loc.gov has to do with Maritime Readiness…govtrack.us lists H.R. 1540 as the one signed into law, and not S. 1867

      Aha! That explains the confusion over section numbering earlier. Sections 1031-1032 in the Senate version are identical to those in the House version 1021-1022 (I checked), except for two items not relevant here, and it was the House version officially signed after reconciliation (when two bills get merged into one). I’ve revised my blog accordingly, so people aren’t confused. But as these bills are identical in all relevant points, the versioning makes no difference here.

      As to Ron Paul, he’s either an idiot or he is grandstanding in total disregard of the truth just to curry votes. What he says about section 1021 simply isn’t true (as I’ve demonstrated here). That he never once even mentions the section I do entails he isn’t actually reading the bill, or did but is deliberately not mentioning this section because it would refute his entire point (and thus kill his chances to grandstand and fearmonger). One or the other. Take your pick.

  22. And from my confusion comes clarity for all. Gosh, I feel all helpful now. Thanks for the follow-up, Richard.

    As to Ron Paul, he’s either an idiot or he is grandstanding in total disregard of the truth just to curry votes.

    Um . . . I choose “both.”

  23. The thing that I find most disturbing about this whole discussion is that regardless of what this law actually says, most participants appear to be perfectly OK with non American citizens being locked up indefinitely without trial.

    To these people I would say: it’s true what they say, you really can take the measure of a civilisation in how it treats its prisoners. Apparently Americans have more human rights than other people? Why is that, are Americans better than everybody else?

    • captainchaos: The thing that I find most disturbing about this whole discussion is that regardless of what this law actually says, most participants appear to be perfectly OK with non American citizens being locked up indefinitely without trial.

      I don’t know who you are referring to. I’ve repeatedly voiced the opposite: that we should be more generous with non-citizen treatment in custody. But as to existing law, it is simply not true that “non American citizens can be locked up indefinitely without trial” without some due process. The Bush administration tried that, and lost every case they fought to defend it. This new law, as well as Supreme Court case law built up since 2001, extends full treaty protections to non-citizens. Which I discussed in the original blog. I also discussed here in comments the special problem of Gitmo prisoners (which I doubt we will see happen again; even if cleaning up Bush’s mess has proved intractable due to Congressional interference).

      But the worse thing people can do to advocate for better process for POWs is to lie about or completely get wrong what the laws are. Then you just look like you don’t know what you are talking about and people will dismiss you. If you want real change, you have to argue for what really needs to be changed, from an informed position. I think we need to keep hitting the point and framing the debate around just what you say: “you really can take the measure of a civilisation in how it treats its prisoners.” If you make it about that, instead of exaggerating the actual legal situation beyond all plausible or factual reality, you might get traction. As long as you keep on it long enough. This, for example, is well worth writing your congressman about–but again, get the facts or laws wrong, and your letter goes in the trash along with all the other cranks. Show you have an actual defensible point that they can’t dismiss, and that starts to add up.

  24. Richard, I have been asked to ask you how, under this law, the detainee can end his detention either by calling for a trial or by triggering habeas corpus. What provisions are there?
    Jacob

    • Jacob Aliet: Richard, I have been asked to ask you how, under this law, the detainee can end his detention either by calling for a trial or by triggering habeas corpus. What provisions are there?

      The same as exist for any citizen charged with any crime anywhere. I cite several sections of the Bill of Rights, for example. But there are tons of laws enacting and expanding what those sections say.

      If you mean non-citizens, then the answer is the same as exist for any POW in any war ever. The Geneva Conventions, for example, spell out many details, and we have laws on the books enacting those treaties.

  25. Carrier, I hope this is not too tedious but I am trying to make sense of things and someone I told someone respect: “In several of the cases (see link below), the Supreme court ruled that the prisoners “have the constitutional right to habeas corpus,” under the laws of war. And that is Carrier’s position: that the rights of Habeas Corpus is still maintained “for any POW in any war ever. The Geneva Conventions, for example, spell out many details, and we have laws on the books enacting those treaties.”

    But he responded: “It’s nice that Carrier maintains that position, but unfortunately the US government does not. The Worthington piece I linked to above details the process by which the US government has whittled away those habeas corpus rights since the landmark supreme court ruling in 2008.

    What you’re really doing is arguing that the interpretations of the ACLU and other civil liberties orgs are completely wrong, and Carrier is right. But the ACLU is in its area of expertise, and Carrier is not. In fact the bill makes it so difficult to move people out of detention that the FBI testified against it in Congress…”
    I think this argument from authority has floored me. Is there something we can still hang on?

    http://www.fff.org/comment/com1111v.asp

    • Jacob Aliet: “It’s nice that Carrier maintains that position, but unfortunately the US government does not. The Worthington piece I linked to above details the process by which the US government has whittled away those habeas corpus rights since the landmark supreme court ruling in 2008.”

      “Whittled away” is a weasel word. It very conspicuously does not mean “eliminated.” Moreover, I never said anything about the rights of habeas corpus in this context, so you are moving the goal posts. Pay attention to what we are talking about. Don’t conflate things.

      What exactly “whittled away” means tends to come down to subjective opinions about how one “wants” habeas corpus rights to stand and be interpreted. I actually have agreed here, repeatedly, that we should be more generous on these issues. But the point of the present blog is that this new law doesn’t change anything: if rights were “whittled away” before this, then this law isn’t the problem, those previous actions were. All this law does is say that what the law was before, it still is now. For example, we must abide by treaties and the constitution. If the government is getting away with violating treaties and the constitution it is not because of this law. Do you understand the difference?

      I fully support protesting and seeking to change the way current laws and treaties are enacted and enforced. But don’t tell lies about what this new law says.

      Once you understand that that is what my actual point was and all I actually said, there ceases to be any nonsense about me saying the ACLU is wrong. The ACLU isn’t gainsaying anything I myself have actually said.

  26. Richard, your post does nothing whatsoever to refute Greenwald. You never even addressed a single one of his arguments! In fact, a careful reading of Greenwald’s article clearly refutes you.

    ON SECTION 2021
    Quoting Greenwald: “There are two separate indefinite military detention provisions in this bill. The first, Section 1021, authorizes indefinite detention for the broad definition of ‘covered persons’ discussed above in the prior point. And that section does provide 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.’ So that section contains a disclaimer regarding an intention to expand detention powers for U.S. citizens, but does so only for the powers vested by that specific section. More important, the exclusion appears to extend only to U.S. citizens ‘captured or arrested in the United States’ — meaning that the powers of indefinite detention vested by that section apply to U.S. citizens captured anywhere abroad…

    Greenwald then leaves a link explaining what he meant by “grammatical vagueness,” which says:

    Quoting Chesney: “(e) AUTHORITIES.—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.

    …note that the language is not sufficiently clear whether this rule of construction is meant to encompass citizens and LPRs captured anywhere, or just when captured in the United States itself. That is, should the ‘captured or arrested in the United States’ clause at the end be read as modifying only the language ‘or any other persons,’ or instead as modifying all three categories listed in that sentence?”

    ON SECTION 1022
    Quoting Greenwald again: “That section — 1022 — does not contain the broad disclaimer regarding U.S. citizens that 1021 contains. Instead, it simply says that the requirement of military detention does not apply to U.S. citizens, but it does not exclude U.S. citizens from the authority, the option, to hold them in military custody. Here is what it says:

    (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.

    The only provision from which U.S. citizens are exempted here is the ‘requirement’ of military detention. For foreign nationals accused of being members of Al Qaeda, military detention is mandatory; for U.S. citizens, it is optional. This section does not exempt U.S citizens from the presidential power of military detention: only from the requirement of military detention.”

    • xdisciple: Richard, your post does nothing whatsoever to refute Greenwald.

      Yes it does. As do my remarks in comments here. Greenwald is simply not reading the bill correctly. See my last reply to you above, and my original mention of Greenwald prior to that in this comment thread.

      <>…note that the language is not sufficiently clear whether this rule of construction is meant to encompass citizens and LPRs captured anywhere, or just when captured in the United States itself.

      That’s not how legal language works. It works the other way around. When you are vague, the language is then sweeping. That’s why laws tend to be verbose, to avoid the consequences of sweeping language. As stated, the law prohibits anything whatever in that section from abrogating any Constitutional provision or even previous legislation, of any kind whatever. In other words, when you don’t specify, you automatically mean “all.” There is therefore no ambiguity relevant to the interpretation of the law. The courts must interpret it sweepingly. If Congress didn’t want the courts to do that, they would have had to be specific. They were not.

      The only provision from which U.S. citizens are exempted here is the ‘requirement’ of military detention.

      I didn’t say citizens were “exempted” from section 1021, so this remark of yours is irrelevant. Section 1021 effectively declares that citizens retain all rights established by constitutional and legislative authority. It doesn’t “exempt” them, but does greatly limit the powers of the president with respect to citizens, in fact in exactly the way they should be limited.

      [on 1022:] for U.S. citizens, it is optional.

      Unless prior authorities (e.g. the constitution) disallow it. That’s the point of 1022 being tied to 1021. Congress knew it could not mandate that the President keep citizens in military custody, so they included that clause. The reason is the principle of severance: if they did not include that clause, because 1021 maintains constitutional authority, 1022 would have become unconstitutional, and as no provision was made to sever 1022 by party, all of 1022 could be struck down by the courts. Congress didn’t want that technicality to tank their designs, so they built in a safety, to ensure the President couldn’t use any legal maneuver to outsmart them. Thus they get to “force” him to keep captured terrorists in military custody forever and he can’t trick his way around them. That’s ass-faced of them, but then that’s Republicans for you.

      The point is, citizens are exempt from the requirement of military custody. They therefore retain all their rights same as they ever had (i.e. if the President could have detained citizens in military custody before, he still can now, but not because this law says so, but because whatever other law before this said so, thus this law gives him no new powers in that regard).

  27. You said: “Greenwald is pretty lousy at reading (or he is reading the wrong bill: he gives the wrong section titles, not just the wrong numbers). Section 1032 does not authorize detention; 1031 does (which 1032 references). 1032 only states that the military has responsibility for detaining the people who are allowed to be detained under 1031… Section 1032(b) then states: ‘The requirement to detain a person in military custody under this section does not extend to citizens of the United States.’ So 1032 not only does not pertain to who can be detained (only who shall do the detaining), but 1032 explicitly exempts U.S. citizens (as well as lawfully resident aliens, ‘except to the extent permitted by the Constitution of the United States’: 1032(c)).”
    First off, there is an awful lot of projection going on on your part here: you are the one with the wrong sections, not Greenwald (I’m reading the NDAA right this very moment and what you’re quoting is NOT in section 1031-1032! You must be quoting from the wrong version).

    You say it pertains to “who shall do the detaining,” and not “who can be detained”—this is your own bizarre misinterpretation. It says at the beginning of section 1022 that it is the “Armed Forces of the United States” who are doing the detaining (indeed, who else would?! Was this bill NOT written by the US?!).

    Also the “except to the extent permitted by the Constitution…” is only in 1022(b)(2), and thus applies only to resident aliens, not US citizens. See here (italics added):

    “(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) LAWFUL RESIDENT ALIENS.—The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.”

    • xdisciple: you are the one with the wrong sections, not Greenwald

      Yes, I’ve corrected that. It doesn’t change the conclusion.

      You say it pertains to “who shall do the detaining,” and not “who can be detained”—this is your own bizarre misinterpretation. It says at the beginning of section 1022 that it is the “Armed Forces of the United States” who are doing the detaining (indeed, who else would?!

      You are missing the point. Section 1022 only is about forcing the president to avoid transferring prisoners to civilian prisons. It says nothing about who those prisoners can be or how they end up in custody–except to say that that is set forth in section 1021. Which is my point. Only section 1021 authorizes the president to detain anyone. Therefore, that is the section we must scrutinize for who he can detain and what rights they have. That is why I said Greenwald is the one who isn’t reading the bill correctly (I was not referring to the section numbers when I said that; regarding the section numbers I said he was reading a different version, and I was right).

      Also the “except to the extent permitted by the Constitution…” is only in 1022(b)(2), and thus applies only to resident aliens, not US citizens. See here (italics added):

      “(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) LAWFUL RESIDENT ALIENS.—The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.”

      And therefore (as you just quoted) section 1022(b)(1) exempts citizens. Thus it does apply to US citizens, who are exempted from section 1022. Just as I said. That the section numbering changed is irrelevant to the fact that the text has not.

      Pay attention to substance, not style, and you’ll get on better.

  28. Richard,

    As it stands right now, I basically agree with your analysis. The Left seems to have done a massive brain fart on this issue, and congrats for clearing it up. However, I can’t help but notice that there may be another possible way to interpret section 1021e:

    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.

    Notice the following:

    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.

    I’m just wondering why they did not instead write it like this:

    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 persons who are captured or arrested in the United States.

    If your overall thesis is correct (which I think it is), then why didn’t they just omit the word "other"?

    Couldn’t a case be made that adding the word "other" makes the implicit assumption that the previous two groups ("US citizens", "lawful resident aliens of the US") are within the group label "any persons who are captured or arrested in the United States"?

    As an analogy, consider the following sentence:

    When I give you this box of handcuffs, I want you to immediately start arresting teenagers, hobos, and anybody caught littering.

    See how, in this instance, "teenagers" and "hobos" are assumed to be separate categories to "people caught littering", and not two subcategories of "people caught littering"? The sentence seems to be calling for the arrest of teenagers, hobos and litterers.

    Now, consider:

    When I give you this box of handcuffs, I want you to immediately start arresting teenagers, hobos, and any other people caught littering.

    Do you see the difference? Now there seems to be an implicit assumption that "teenagers" and "hobos" are to be arrested because they are within the group "people caught littering", and not a separate entity. In other words, teenagers and hobos are to be arrested because they are littering.

    So when section 1021e says:

    ...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.

    Do you think that it is possible that they were only mentioning US citizens and legal aliens because they fell under the category of people on US soil–which is the real criteria for exemption from the provisions of the new NDAA? I might be over-reaching here, but the issue just seems too important to keep my thoughts to myself.

    • mojo.rhythm: If your overall thesis is correct (which I think it is), then why didn’t they just omit the word “other”?

      If the intent of the law were to exempt anyone arrested in the U.S. it would just say anyone arrested in the U.S. That categories are being distinguished entails they are separate categories (otherwise they wouldn’t be listed). Thus, it would just say “Nothing in this section shall be construed to affect existing law or authorities relating to any persons who are captured or arrested in the United States.” Since it does not say that, the intent is legally established that “other persons who are captured or arrested in the United States” is a separate category from “United States citizens” and “lawful resident aliens” (who have rights under U.S. law even when not in the U.S.).

    • As long as the executions are announced publicly enough and in advance enough that the target knows this and can submit to due process instead by turning themselves in peacefully, the execution of citizens engaged in prosecuting a war against the United States can be constitutional. I’m sure that’s how the Supreme Court would eventually rule, although I believe the standard should be that Congress issue a letter of marque/reprisal against the person or persons targeted, and IMO Obama (and Bush, who also did this) should have sought one regardless of whether it was legal not to (since it sets a bad precedent, a loophole Congress ought to close by law).

      The issue is that if a citizen refuses to submit to due process, then he has in effect waived his rights to it (he becomes in the understanding of common law an “outlaw,” someone beyond the law and therefore no longer protected by it). This was the reasoning in the 19th century when criminals could stay out of the reach of the law and refused to submit to due process (generally by shooting any law officer sent to apprehend them). Hence the “wanted dead or alive” practice. Technically that did not legalize murder per se (if you killed them it had to be in the act of their resisting apprehension), but in modern terms, when “guns” can be “shot” across oceans using bombs smuggled on airplanes and outlaws can hide among bands of murderers at war with us in faraway nations with no effective rule of law, all of whom will certainly attempt to kill any lawman sent to apprehend them, the notion of what counts as “resisting apprehension” becomes fuzzy. Most 20th century law has turned toward expanding concepts into more abstract applications due to the changes created by technology. This is one of them. These targeted citizens are in effect violently resisting apprehension by their very tactical actions (e.g. locating themselves among armed groups who will kill anyone sent to apprehend them). It’s more abstract than the laws originally imagined, but so is the modern world as a whole.

      There is an interesting back-and-forth on this at The Volokh Conspiracy. The upshot of which is that declaring outlawry and assassination in the context of prosecuting a war are not even prohibited by the laws of war (they were just considered ungentlemanly until recently and thus prohibition of “treachery” was interpreted in military manuals as ruling out assassination and outlawry, even though technically nothing in the Hague treaty means that; it only says, in effect, that you cannot refuse a citizen the right to a trial if they should turn themselves in; but if they effectively declare themselves an outlaw, they are thereby waiving their right to a trial, and nothing in the treaty prohibits declaring them an “outlaw” in that case).

  29. I was under the impression that, technically, the United States is not at war with Al Queda, no? That was the assessment given by Alberto Gonzalez in 2002 at a hearing: “There was not a war declaration, either in connection with Al Qaida or in Iraq. It was an authorization to use military force.

    • I’ve discussed this before (in a long thread that may be too tedious for you to read, sorry). Gonzalez, as we all know, was a weasel, who, like a creationist, will define a word one way in one context and another way in another context, however he needed to ensure he was always right (the standard Whac-a-Mole game), logic and legal precedent be damned. So I wouldn’t reference him as a reliable authority on this. In actual fact “authorization of military force” is effectively the same as a declaration of war under the law, it’s mainly a semantic change in just the words we use (there are some obscure matters of law and treaty enforcement that change, but nothing significant here). See this legal analysis.

  30. Update: Court challenges to section 1021 have met with their first court decision (by Katherine Forrest).

    Notably, Forrest confirms my entire interpretation of the section (thank you, Judge Forrest). What was argued instead, and which she affirms, is that no “definitions” section was included (unlike previous detention laws) that specified what “material support” meant (among other terms) and therefore it violates the common law requirement of scienter (that citizens be able to know what actions will violate the law; this is also regarded as entailed by the fifth and sixth amendments).

    Obama tried to fix this with a signing statement that sort of said the definitions of the used terms in previous laws will apply. Forrest rejected that argument on the grounds that a signing statement does not hold the force of law (and is therefore inadequate; although notably, this means Obama was interpreting the law correctly and not acting the tyrant) and therefore unless Congress remedies the oversight by making this explicit, section 1021 cannot be enforced.

    I agree, if she’s right about how laws work generally. If it is the case that previously legislated definitions of terms used in a new law do not automatically govern that law, then 1021 is defective and must be scuttled or fixed (by legislating the definitions that Congress neglected to include; which wouldn’t be hard, since they have already done it, and just need to cut-and-paste the previously legislated definitions into 1021, since those were fully upheld by previous courts, as Forrest documents admirably).

    The only other constitutional issue was that because “material support” (etc.) was vague, it could be construed as speaking with or to (or translating, etc.) enemy combatants, which would then make 1021 a law in violation of first amendment free speech rights (as well as the right of peaceable assembly). The issue in fact was not, for Forrest, whether citizens could be indefinitely detained (she clearly regards that as excluded by the law), but whether they could be tried (and serve definite detention if convicted) for the crimes enumerated in 1021. They could, and thus lack of scienter scuttles it. Likewise the rights of non-citizens within the U.S.

    I predict Congress will fix the law rather than allow it to be nullified until carried through the year-long appeals process (at the end of which it will probably still not be upheld anyway). Let’s see what they do.