By Richard S. Gubbe
While most of America was reveling in the dethroning of 2011, President Barack Obama was signing into law one of the most powerful and potentially dangerous Department of Defense bills ever crafted.
The timing of the signing led to little media coverage, as most Americans were captivated by Lady Gaga, Fergie, Jenny McCarthy and Dick Clark. While the signing of the bill escaped the national news fill-in reporters, there were plenty of positives left to write about with the tax cuts and unemployment extensions.
Obama chose the weekend to announce his signing when no one cared. Happy New Year. And oh, by the way, let me be clear about who has military power along with the military.
Not only does this bill reinforce the already present, sweeping powers of the president, it sets the stage with more drama with Iran as well. The Defense Bill was a smokescreen for the provision inside that allows sanctions against Iran.
This bill stabilizes and more accurately defines the president’s ability to detain or kill anyone in the name of a terrorist act. The first language that allows this power came with the Patriot Act nearly 10 years ago. Most of the government’s ability to cast a quick and wide net when it comes to arresting people has existed since then for the military and the president.
Now, the real debate comes with the aspersion that this sweeping power means that Americans can find themselves jailed in the name of national security.
Reuters reported two months ago that a kill or capture list is composed by a secretive panel of senior government officials, which then informs the president of its decisions. Reuters said current and past administrative officials have said, “there is no public record of the operations or decisions of the panel, which is a subset of the White House’s National Security Council. Neither is there any law establishing its existence …”
Does this mean that the military and the president can arbitrarily execute anyone anytime and anyplace? No trials, and indefinite incarceration can be called upon at any time.
With the new sanctions, however, the door has been opened for the government to go after anyone who does business with a bank in Iran. This sanction could lead to higher oil prices, and Obama signed it despite his “objections” to it. As for the pipeline threat by Iran, they also supply oil to China over the same passage.
The penalties do not go into effect for six months, and the president can waive them for national security reasons or if the country with jurisdiction over the foreign financial institution reduces its purchases of Iranian oil.
Even though this is the House version of the bill, what sticks out the most is the importance of the rights of U.S. citizens, which was brought up by congressmen and senators. The lack-of-rights discussion was bantered back and forth prior to the passage in each legislature.
The appearance of the U.S. citizen arrest potential mentioned in the House bill is disturbing because it wasn’t supposed to be in there, according to those who voted for keeping it out. Instead, it stayed in the bill. Now, Obama says he took it out. He said the bill may not be construed to affect any “existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”
How did this verbiage of detaining U.S. citizens escape them, or did it get passed along deceptively? Read the comments made by Obama upon the signing, but first, here’s part of the current bill.
Here is how section 1021 of the House bill reads now:
“Affirmation of Authority of the Armed Forces of the United States to detain covered persons pursuant to the authorization for the use of military force.
“IN GENERAL. — Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
“COVERED PERSONS. — A covered person under this section is any person as follows:
“(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks. (2) A person who was 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, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
“DISPOSITION UNDER LAW OF WAR. — The disposition of a person under the law of war as described in subsection (a) may include the following:
“(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.
“(2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111–84)).
“(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.
“(4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.
“CONSTRUCTION. — Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.
“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.”
The clause about “including any person who has committed a belligerent act” is broad and vague. Read in section 1022 below where the president can assert himself at any time. Pay particular attention to the clause in 1022 that says no U.S. citizen will fall into this category, unless they fit the al-Qaeda-Taliban criteria:
“SEC. 1022. Military custody for foreign al-Qaeda Terrorists.
“(a) CUSTODY PENDING DISPOSITION UNDER LAW OF WAR. —
“(1) IN GENERAL. — Except as provided in paragraph (4), the Armed Forces of the United States shall hold a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107–40) in military custody pending disposition under the law of war.
“(2) COVERED PERSONS. — The requirement in paragraph (1) shall apply to any person whose detention is authorized under section 1021 who is determined — (A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and (B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.
“(4) WAIVER FOR NATIONAL SECURITY. — The President may waive the requirement of paragraph (1) if the President submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.
“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.
“AUTHORITIES. — Nothing in this section shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person, regardless whether such covered person is held in military custody.”
Following is part of what President Obama released in his statement with the signing, but it received little fanfare on the White House press site:
“Today, I have signed into law H.R. 1540, the ‘National Defense Authorization Act for Fiscal Year 2012.’ I have signed the Act chiefly because it authorizes funding for the defense of the United States and its interests abroad, crucial services for service members and their families, and vital national security programs that must be renewed. In hundreds of separate sections totaling over 500 pages, the Act also contains critical Administration initiatives to control the spiraling health care costs of the Department of Defense (DoD), to develop counterterrorism initiatives abroad, to build the security capacity of key partners, to modernize the force, and to boost the efficiency and effectiveness of military operations worldwide.
“The fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists. Over the last several years, my Administration has developed an effective, sustainable framework for the detention, interrogation and trial of suspected terrorists that allows us to maximize both our ability to collect intelligence and to incapacitate dangerous individuals in rapidly developing situations, and the results we have achieved are undeniable. Our success against al-Qa’ida and its affiliates and adherents has derived in significant measure from providing our counterterrorism professionals with the clarity and flexibility they need to adapt to changing circumstances and to utilize whichever authorities best protect the American people, and our accomplishments have respected the values that make our country an example for the world.
“Against that record of success, some in Congress continue to insist upon restricting the options available to our counterterrorism professionals and interfering with the very operations that have kept us safe. My Administration has consistently opposed such measures. Ultimately, I decided to sign this bill not only because of the critically important services it provides for our forces and their families and the national security programs it authorizes, but also because the Congress revised provisions that otherwise would have jeopardized the safety, security and liberty of the American people. Moving forward, my Administration will interpret and implement the provisions described below in a manner that best preserves the flexibility on which our safety depends and upholds the values on which this country was founded.
“Section 1021 affirms the executive branch’s authority to detain persons covered by the 2001 Authorization for Use of Military Force (AUMF) (Public Law 107-40; 50 U.S.C. 1541 note). This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then. Two critical limitations in section 1021 confirm that it solely codifies established authorities. First, under section 1021(d), the bill does not ‘limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.’ Second, under section 1021(e), the bill may not be construed to affect any ‘existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.’ My Administration strongly supported the inclusion of these limitations in order to make clear beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF. Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.
“Section 1022 seeks to require military custody for a narrow category of non-citizen detainees who are ‘captured in the course of hostilities authorized by the Authorization for Use of Military Force.’ This section is ill-conceived and will do nothing to improve the security of the United States. The executive branch already has the authority to detain in military custody those members of al-Qa’ida who are captured in the course of hostilities authorized by the AUMF, and as Commander in Chief I have directed the military to do so where appropriate. I reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat. While section 1022 is unnecessary and has the potential to create uncertainty, I have signed the bill because I believe that this section can be interpreted and applied in a manner that avoids undue harm to our current operations.
“I have concluded that section 1022 provides the minimally acceptable amount of flexibility to protect national security. Specifically, I have signed this bill on the understanding that section 1022 provides the executive branch with broad authority to determine how best to implement it, and with the full and unencumbered ability to waive any military custody requirement, including the option of waiving appropriate categories of cases when doing so is in the national security interests of the United States. As my Administration has made clear, the only responsible way to combat the threat al-Qa’ida poses is to remain relentlessly practical, guided by the factual and legal complexities of each case and the relative strengths and weaknesses of each system. Otherwise, investigations could be compromised, our authorities to hold dangerous individuals could be jeopardized, and intelligence could be lost. I will not tolerate that result, and under no circumstances will my Administration accept or adhere to a rigid across-the-board requirement for military detention. I will therefore interpret and implement section 1022 in the manner that best preserves the same flexible approach that has served us so well for the past three years and that protects the ability of law enforcement professionals to obtain the evidence and cooperation they need to protect the Nation.
“Sections 1026-1028 continue unwise funding restrictions that curtail options available to the executive branch. Section 1027 renews the bar against using appropriated funds for fiscal year 2012 to transfer Guantanamo detainees into the United States for any purpose. I continue to oppose this provision, which intrudes upon critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests. For decades, Republican and Democratic administrations have successfully prosecuted hundreds of terrorists in Federal court. Those prosecutions are a legitimate, effective and powerful tool in our efforts to protect the Nation. Removing that tool from the executive branch does not serve our national security. Moreover, this intrusion would, under certain circumstances, violate constitutional separation of powers principles.
“Other provisions in this bill above could interfere with my constitutional foreign affairs powers. Section 1244 requires the President to submit a report to the Congress 60 days prior to sharing any U.S. classified ballistic missile defense information with Russia. Section 1244 further specifies that this report include a detailed description of the classified information to be provided. While my Administration intends to keep the Congress fully informed of the status of U.S. efforts to cooperate with the Russian Federation on ballistic missile defense, my Administration will also interpret and implement section 1244 in a manner that does not interfere with the President’s constitutional authority to conduct foreign affairs and avoids the undue disclosure of sensitive diplomatic communications. Other sections pose similar problems. Sections 1231, 1240, 1241 and 1242 could be read to require the disclosure of sensitive diplomatic communications and national security secrets; and sections 1235, 1242 and 1245 would interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with foreign governments. Like section 1244, should any application of these provisions conflict with my constitutional authorities, I will treat the provisions as non-binding.
“My Administration has worked tirelessly to reform or remove the provisions described above in order to facilitate the enactment of this vital legislation, but certain provisions remain concerning. My Administration will aggressively seek to mitigate those concerns through the design of implementation procedures and other authorities available to me as Chief Executive and Commander in Chief, will oppose any attempt to extend or expand them in the future, and will seek the repeal of any provisions that undermine the policies and values that have guided my Administration throughout my time in office.”
Digesting all that comes down to this: The president holds the cards when it comes to arresting or killing those believed to be terrorists. Nothing has changed, only reaffirmed. The president can call for martial law any time he feels like it and call it “in the best interest of national security.” Senators and congressmen from Illinois will say they protected the rights of Americans when it appears these rights are no longer theirs to protect. They belong to the president, whoever is in office. And he or she can determine who is a terrorist and who isn’t. And will a future threat exist? Will Occupy America members, for example, be called terrorists some day?
The new, most pressing threat from the bill comes not from these new affirmations of the law, but rather the threat of conflict in and around Iran.
The rest is just rhetoric and posturing.
From the Jan. 4-10, 2012, issue