The Worst Part of the Signing Statement: Section 1024

As I explained here, Obama’s signing statement on the defense authorization was about what I expected. He included squishy language so as to pretend he doesn’t fully support indefinite detention. And he basically promised to ignore much of the language on presumptive military detention.

But there was one part of the signing statement I (naively) didn’t expect. It’s this:

Sections 1023-1025 needlessly interfere with the executive branch’s processes for reviewing the status of detainees. Going forward, consistent with congressional intent as detailed in the Conference Report, my Administration will interpret section 1024 as granting the Secretary of Defense broad discretion to determine what detainee status determinations in Afghanistan are subject to the requirements of this section. [my emphasis]

Section 1024, remember, requires the Defense Department to actually establish the provisions for status reviews that Obama has promised but not entirely delivered.

SEC. 1024. PROCEDURES FOR STATUS DETERMINATIONS.

(a) IN GENERAL.—Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the appropriate committees of Congress a report setting forth the procedures for determining the status of persons detained pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) for purposes of section 1021.

(b) ELEMENTS OF PROCEDURES.—The procedures required by this section shall provide for the following in the case of any unprivileged enemy belligerent who will be held in long-term detention under the law of war pursuant to the Authorization for Use of Military Force:

(1) A military judge shall preside at proceedings for the determination of status of an unprivileged enemy belligerent.

(2) An unprivileged enemy belligerent may, at the election of the belligerent, be represented by military counsel at proceedings for the determination of status of the belligerent.

(c) APPLICABILITY.—The Secretary of Defense is not required to apply the procedures required by this section in the case of a person for whom habeas corpus review is available in a Federal court.

As I’ve noted, Lindsey Graham (and other bill supporters, both the right and left of Lindsey) repeatedly insisted on this review provision. Lindsey promised every detainee would get real review of his status.

I want to be able to tell anybody who is interested that no person in an American prison–civilian or military–held as a suspected member of al-Qaida will be held without independent judicial review. We are not allowing the executive branch to make that decision unchecked. For the first time in the history of American warfare, every American combatant held by the executive branch will have their day in Federal court, and the government has to prove by a preponderance of the evidence you are in fact part of the enemy force. [my emphasis]

And yet, in spite of the fact that Section 1024 includes no exception for those detained at Bagram, Obama just invented such an exception.

Section 1024 was one of the few good parts of the detainee provisions in this bill, because it would have finally expanded the due process available to the thousands of detainees who are hidden away at Bagram now with no meaningful review.

But Obama just made that good part disappear.

Update: I’m still trying to figure out where Obama gets the Congressional intent to let the Defense Secretary pick and choose which detainees 1024 applies to. The managers’ statement says this about 1024:

The Senate amendment contained a provision (sec. 1036) that would require the Secretary of Defense to establish procedures for determining the status of persons captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107-40), including access to a military judge and a military lawyer for an enemy belligerent who will be held in long-term detention.

The House bill contained no similar provision.

The House recedes with an amendment clarifying that the Secretary of Defense is not required to apply the procedures for long-term detention in the case of a person for whom habeas corpus review is available in federal court.

Because this provision is prospective, the Secretary of Defense is authorized to determine the extent, if any, to which such procedures will be applied to detainees for whom status determinations have already been made prior to the date of the enactment of this Act.

The conferees expect that the procedures issued by the Secretary of Defense will define what constitutes “long-term” detention for the purposes of subsection (b). The conferees understand that under current Department of Defense practice in Afghanistan, a detainee goes before a Detention Review Board for a status determination 60 days after capture, and again 6 months after that. The Department of Defense has considered extending the period of time before a second review is required. The conferees expect that the procedures required by subsection (b) would not be triggered by the first review, but could be triggered by the second review, in the discretion of the Secretary. [my emphasis]

This seems to be saying two things. First, DOD doesn’t have to go back and grant everyone they’ve given the inadequate review process currently in place a new review. The 3,000 detainees already in Bagram are just SOL.

In addition, this says DOD gets to decide how long new detainees will have to wait before they get a status review with an actual lawyer–and Congress is perfectly happy making them wait over six months before that time.

Obama seems to have taken that language and pushed it further still: stating that DOD will get broad discretion to decide which reviews will carry the requirement of a judge and a lawyer.

It sort of makes you wonder why the Obama Administration wants these men to be held for over six months with no meaningful review?

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

23 replies
  1. JTMinIA says:

    >> “But Obama just made that good part disappear.”

    Or maybe he just got this whole signing statement nonsense on its way to the SCOTUS where we can dispense with it once and for all.

    I can dream.

  2. emptywheel says:

    @Peterr: Well, like I said, I’ve got a much higher degree of confidence that this will get reviewed and reversed than almost everything else.

    BUt then, I admit to being naive in this post, so take that w/a grain of salt.

  3. Peterr says:

    @emptywheel:

    Given how loathe SCOTUS has been to touch the question of detainees in general, I’m less confident than you are.

    I’m wondering if the GOP, led by Colonel Lindsey, will try to make an issue of this and put forward another bill that says “we really meant it” and force Obama to either cave on this or veto the measure.

    It would certainly play into the whole “Dems are trying to gut the constitution and take over everything” meme the right wing is eating up.

  4. prostratedragon says:

    Hang on to a few of those nah-eev-ee-tay logs as long as you can —the other stuff’s poor fuel of a winter.

    And a better 2012 to all.

  5. Cold Wind says:

    It is widely understood that al Qaida is a government sponsored fiction created jointly by the CIA and Israel’s Mossad. This fact is given credence by Wayne Masden and a host of other insider/whistle blowers. The NDAA is unquestionably unconstitutional. It is treason. Those who support it are traitors. Everything the government does now is treason.

  6. M Hoffman says:

    How long will the remainder of the world allow this hegemony from the United States? We are over decades becoming the enemy of the world, allied with Britain and Israel, selfishly manipulating the “reserve currency” to attempt to control commodities which are not only limited but for which there is an increased demand. As for Obama and the remainder of our “representatives” who adopted these “laws”, they are very simply traitors, having no respect for the rule of law. So long as the US continues on this path of fascism there is no longer any reason for me to pledge allegiance to a government which is overtly criminal and the enemy of the world. I thought that Vietnam and Nixon would have taught us something,but since that time political cynicism and corruption have only increased. How can a nation survive in which only a small minority of its citizens have trust and confidence in a government which is literally purchased by the wealthy and powerful to do their bidding and which bows down to a single religion, Zionism, pledging to support the criminal “religious nation” of Israel which has brought upon us so much of this grief. Our entire foreign policy is now controlled by the Zionist Jewish agenda which controls not only our banking “system” but also the mass media which feeds our sheep with their own defecation.

  7. emptywheel says:

    Note my update: It appears Obama is relying on the managers’ statement to claim legislative intent to limit this provision. Effectively, they’ve said DOD doesn’t have to give the 3,000 or so existing detainees this new review, and DOD gets to decide how long to wait until the new detainees get a review, but more than 6 months is perfectly okay.

  8. amdt. 1126 says:

    The Congress in their infinite (chicken sh-t) wisdom voted down the Feinstein Amdt. 1126 that specically excluded American citizens, therefore the will of Congress is interrupted as INCLUDING American citizens for gulog roundups. See class, it’s all based on the “intent of Congress” which they demonstably proved to be anti Bill of Rights, anti Constitution and anti US citizen. Long live the King!

  9. jerryy says:

    Under this bit of sophistry, the My Lai massacre could easily happen again, but this time, the dead would be considered as detainees awaiting review.

  10. Benjamin Franklin says:

    As Devil’s advocate; can someone chime in on the Obama excusers who whine that military funding was on the block, being tied to this crapola.

  11. Arbusto says:

    @emptywheel 3: Who would review/reverse will this atrociousness piece of crap? Certainly not our Cowardly Congress. I think bmax or one of EW’s legal cadre stated a judicial review wouldn’t happen until one or more snatches/disappearance became public and a suit filed, about 5yrs after the occurrence.

  12. DonS says:

    “I’m still trying to figure out where Obama gets the Congressional intent to let the Defense Secretary pick and choose . . . ”

    Don’t strain your brain Marcy. You know as well as I do that they invent their own rules or logic, syntax, legislative construction, and indeed reality.

    It all means nothing save the calculus meatgrinder of election, election, election.

  13. KWillow says:

    The Congress filibusters just about everything the Dems do, it wants Obama to fail, it won’t even extend unemployment insurance without a fight…. but they passed this bill with very little fooferah.

  14. pdaly says:

    I wonder if this would work as a tweet (it’s made up of repurposed Canadian Aboriginal syllabic and a bitmap of the scales of justice)

    .

  15. vector56 says:

    I am one of those Liberals who long to see Ron Paul and Barrack Obama debate foreign policy.

    Disclaimer: Yes, I am completely aware of Paul’s lack of a domestic policy. Under a President Ron Paul, Social Security, Medicare, Medicaid would all fact the chopping block. A large percentage of our poor, sick and elderly would perish. Because of this a President Ron Paul would be (in my opinion) unacceptable.

    I am under no illusion that Ron Paul would win a general election. Unlike the other Republican candidates who would also cut the domestic social safety net, Paul would also deal a crippling blow to the Military Industrial Complex (MIC) and introduce Wall Street to Capitalism. I suspect this is why both MSNBC and FOX are bent on destroying Ron Paul. Both the Democrats and Republican equally serve Wall Street and the MIC. Both the Democrats and the Republicans support the “Patriot Act” and the “Global (never ending) War on Terror”. Ron Paul when it came to civil liberties would deviate from the script. Thousands, if not “millions” of “little Brown people” in the Middle East with names we find hard to pronounce would live to see another son rise under Ron Paul.

    Knowing that Ron Paul could not win a general election against Obama, I would give my left (something or the other) to see these two men on national TV debating foreign policy! Ron Paul would not stick to the tightly controlled script the corporate media has constructed for most of our public officials. If Paul is anything, he is an honest man. He would drain the swamp that keeps us as a country mired in a mucky pit of lies and hypocrisy. Obama would be forced to answer for his participation in the Bush “crimes against humanity”. Misdirection does not seem to work against Ron Paul; unlike the so-called “constitutional scholar” (Obama), Paul seems to not only “talk the talk”, but he has been shown to also, “walk the walk!” Candidate Obama once said that “sunlight is the best disinfectant”, surely Ron Paul would shine the light of the constitution into the darkest corners of President Obama’s cover-up of the Bush crimes, Obama’s drone assignation program; extra-judicial killings of US citizens…
    Most, if not all of these crimes against humanity and the United States would be brought to light. Because Obama is Wall Street and the Military Industrial Complexes’ man (thus the corporate media’s choice) he will surely win. The only thing different is that he (Obama) will know that we know who he represent. The façade will come apart.

  16. Mark V Reid says:

    Obama seems intent on acquiring as much “flexibility” as he can possibly get the US Government to give him by law. The problem with that plan for him is that in doing so, he is leaving the American Citizenry in the dust with a strong distrust and dislike will not wane before election time, as reflected in people’s replies to his own tweets and fb status updates. The problem for Americans is just further setbacks in trying to overcome the corporatism that has been chipping away at the Constitution for decades. 

    That makes our situation dramatic and dire because there is no doubt that corporatism is limitlessly power- and wealth-hungry, stops at nothing, no amount of animal suffering (NYCGA.net/declaration #4 & 5; P. Singer, 1975), no degree of genocide (IBM, Hollerith machines), and no degree of theft (looting the US Treasury, 2007-11). Corporations are amoral, so if they continue to gain control and legalize oppression, rulership will occur solely through tyranny. 

    It is conceivable to me that at certain points in the future of this country, people may beg for hell. If that seems impossible, then one needs to read about Stanley Milgram’s obedience experiments in the 60’s and 70’s. One needs to see how corporations treat animals just like your family dog for whom there are no negative consequences to profits no matter how badly they are treated. One needs to study the leadership role that the USA-based IBM played in orchestrating the holocaust in Nazi Germany. And one needs to study the crimes that went unpunished on Wall Street in the recent financial crisis that lead to the Great Recession that we are in.

    I hope it does not get worse than it is now, I desperately hope we never beg for hell. But a complacent uninformed citizenry is what we have in the US today, and the trend of corporatism that will lead to those futures requires strong active participation in the people to counteract it. Occupy Wall St and the true/unhijacked Tea Party movement are what are needed. But rather than lending a hand, the people at large are turning their back on their best hope. But they need to wake up and realize they do so to their own peril.

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