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Start Out the New Year with Indefinite Detention

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Happy New Year! No way to start the New Year out right than new detainee provisions formalizing indefinite detention.

Here is the part of Obama’s signing statement for the Defense Authorization that pertains to the most onerous parts of the detainee provisions, with my comments.

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.

Shorter Obama: we were prepared to continue indefinitely detaining people based on my Executive Order until they die off. What’s wrong with that?

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.

This is a fair point, one that he should have made much more strongly when this bill (now law) was being debated. A little fear-mongering would have been nice too.

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.

Apparently, Obama has been reading “associated forces” into the AUMF for the last three years. I guess that’s why AQAP members, who weren’t covered by the AUMF, are dead.

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.

Note, this statement can be read both ways: not just to say that indefinite detention is not new (which it’s not, and which I’ve been saying for some time), but also that anything they claim the courts have recognized as lawful–like the use of deadly force while purportedly trying to detain someone–remains lawful.

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 emphasis]

At one level, it’s nice to see Obama affirming that he won’t indefinitely detain us in military custody. Partly, though, Obama is still signing a law that President Mitt or Newt or Santorum could–and would–use to indefinitely detain Americans. As I said, “Vote for me, or President Newt will indefinitely detain you.”

But Obama isn’t even making that campaign promise! Note the trick here. Section 1021 pertains to all indefinite detention, not just military detention. But Obama only promises not to put Americans into indefinite military detention. I guess promising that Americans wouldn’t be indefinitely detained, period, was too much of a stretch.

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.

Remember, “other applicable law” includes Scott v. Harris, which authorizes the use of deadly force when you’re pretending to try to detain someone.

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.

A month ago, I noted that Obama had ways of maintaining civilian primacy without vetoing this bill. This section makes it sound like he agrees.

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. [my emphasis]

The Republicans are going to go nuts about this passage–not only is Obama saying the waiver is minimally restrictive on him, but he’s also saying he will exempt “appropriate categories of cases” from presumptive military detention. That may well include “anyone captured in the US.” Let’s hope so.

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 3 years and that protects the ability of law enforcement professionals to obtain the evidence and cooperation they need to protect the Nation.

Nothing I disagree with in this section. Though, again, it’d be nice to have seen the Administration make this argument at more length–while invoking the danger of following the Republican approach–before the bill was passed.

This statement is precisely what I expected. A belated defense of civilian law. And an attempt–one even more timid than I imagined–to pretend that Obama objects to the principle of indefinite detention, even including the possibility of indefinite civilian detention for American citizens.

I’ve put the full signing statement below the rule. Read more →

DOD, State, and Obama’s “Pretend” Desire to Close Gitmo

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Robert Chesney had an interesting observation about the inter-agency group Dafna Linzer reports is working on some kind of statement with regards to Congress’ restrictions on Obama’s ability to move detainees from Gitmo to the US: the apparent non-participation of DOD in the group.

Second, and perhaps relatedly, note that the story also describes the interagency meetings concerning a possible signing statement, meetings that apparently involved a “small circle of policymakers and lawyers from the White House, the Justice Department and State Department” who “spent the closing hours of 2010 considering drafts for a statement.”  What is interesting about that is the apparent absence of the Defense Department.  Of course, not being involved in drafting would not necessarily mean that DOD has no or little voice in the matter, but it certainly would not suggest DOD has much of a role either.  One might respond that this is really a question for DOJ and the White House Counsel’s office of course, but in that case why is State there?  State has clear equities, of course, so I think it makes perfect sense to include it.  But DOD’s equities seem at least as substantial (yes, the IC has equities here as well, but the DOD omission is what strikes me as remarkable – if there really is an omission).

While I don’t know this to be a case, I’d suggest that we might pair that observation with one I made yesterday: that one of Linzer’s sources used the word “pretend” when discussing Obama’s purported plans to close Gitmo.

If the bill were signed without challenge, the remaining prosecutorial option left for the administration would be to charge detainees in military commissions at Guantanamo, with those convicted serving time at the facility. So far, the administration has been unwilling to bring new charges in that setting.

“The bill,” said one administration official, “undermines the principles outlined in the president’s archives speech and there is no way to pretend you are closing Guantanamo if that law goes through unchallenged.” [my emphasis]

As Adam Serwer noted some weeks ago, if the Obama Administration really objected to Congress restricting its prosecutorial power in this matter, it would have rolled out the Republican Bob Gates to talk about how important closing Gitmo is to winning the war on terror.

I don’t know whether the administration blessed this deal, but they certainly haven’t brought out the big guns–a few words from Defense Secretary Robert Gates would probably go a long way towards dissuading the Senate from going through with this.

(Though Serwer goes on to suggest that another way Obama could indicate the seriousness of his opposition to the restriction would be to issue a signing statement–now we know who to blame for this idea!)

If your desire to close Gitmo is now just pretend, make-believe, then why involve DOD at all? Indeed, a “pretend” desire to close Gitmo would well explain why you involve State, but not DOD.

As I have noted, one of the revelations in the Wikileaks cables is the way in which Spain advised us how to help it combat torture investigations in that country: by proving that some kind of legal process was ongoing in the US.

Zaragoza has also told us that if a proceeding regarding this matter were underway in the U.S., that would effectively bar proceedings in Spain. We intend to further explore this option with him informally (asking about format, timing, how much information he would need, etc.) while making it clear that the USG has not made a decision to follow this course of action.

And the diplomats involved–writing to Secretary of State Clinton–make it clear they will find out from Spain what such a proceeding must look like to serve the purpose of staving off a Spanish investigation.

After which, DOJ seeems to have embarked on a “pretend” investigation into torture that–they insist–is ongoing.

Who do you think the audience for any “pretend” effort to close Gitmo would currently be? Certainly not the bulk of the American people, who have been thoroughly suckered by GOP fearmongering on Gitmo. Nor, probably, would the primary audience be al Qaeda and its potential recruits, which would probably be far more impressed at this point if the US decided to halt drone strikes than if it closed Gitmo.

Indeed, it seems clear that the only reason Obama would feel obliged to pretend to want to close Gitmo anymore (because God knows he seems thoroughly unconcerned by civil libertarians squawking about his campaign promises) is the international community.

And so a statement about Obama opposition to Congress tying his hands on Gitmo wouldn’t matter to DOD, because nothing at Gitmo is actually going to change (aside from his face-saving EO on indefinite detention). But it would matter to the State Department, because they would be the ones who might have had discussions about what a “pretend” effort to close Gitmo would have to look like to please our allies and make them willing to continue to partner with us on counter-terrorism.

Which might explain why no one at the White House will claim Obama actually wants to use a hypothetical signing statement. Because merely issuing one–but not actually relying on it–would serve its intended purpose: to allow the Administration and our allies to pretend that the US wants to close Gitmo.

Update: YouTube added per PeasantParty.