Obama’s Re-elect Strategy: Vote for Me, or Newt Will Have Authority to Indefinitely Detain You

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Ken Gude, writing for the Democratic Party’s house think tank, offers a thoroughly disgusting defense of Obama signing the Defense Authorization and its detainee provisions. In his first paragraph, he asserts that the detainee provisions don’t establish indefinite military detention.

Let me put this simply: The detainee provisions in the bill do not establish indefinite military detention authority for anyone captured in the United States.

Of course, that says nothing about what the provisions do for the existing system of military detention that has already been established.

Just a few paragraphs later, Gude affirms the primacy of presidential discretion over things like indefinite detention, suggesting there is nothing Congress could do to limit or guide whatever authority was granted by the (doesn’t Congress pass these things?) Authorization to Use Military Force.

Any military detention authority contained in the AUMF occurs as an incident of the necessary and appropriate use of military force. Any such use of force is at the exclusive discretion of the president, subject of course to constitutional and international law constraints.

But don’t worry about this breathtaking assertion of unlimited presidential authority, Gude suggests, because Obama’s not a big military detention fan.

The Obama administration in word and deed has made it very clear that the president does not believe it necessary or appropriate to use military detention authority in the United States. Both Omar Farouk Abdulmutallab and Faisal al-Shazaad were arrested after attempting mass casualty terrorist attacks inside the United States. In both instances, conservatives called for putting them in military detention, but in both instances, the Obama administration chose to use the criminal justice system.

There are just two problems with this (setting aside the grand claim that nothing can impinge on Presidential discretion on these matters).

First, we are less than one year from a Presidential election. In 389 days we’ll have another Presidential inauguration, whether of Obama again or someone else; Newt Gingrich currently leads GOP polls. It is absolutely irresponsible for Gude to assert that the codification of authority that Obama will sign into law doesn’t raise the specter of how other Presidents will use that authority.

Yes, a future president may interpret that authority differently, but that is both a fight for another day and one that will not hinge on the 2012 NDAA. So let’s put away both the rhetoric and the fear that the U.S. military will be detaining U.S. citizens captured in the United States.

I can only take this irresponsible claim to mean that it is a core part of Obama’s re-elect strategy to make sure a President who doesn’t embrace indefinite military detention of American citizens–as Newt would likely do–gets re-elected.

Then there’s the even bigger problem with Gude’s argument.

Sure, Obama’s not a fan of indefinite military detention. Sure, in key cases he chose to use the civilian legal system–and used it well.

But Obama is a fan of targeted killings.

And, as Charlie Savage has reported, the legal justification the Administration invented for killing an American citizen in a premeditated drone stike consists of largely the same legal justification at issue in the NDAA detainee provisions.

  • The 2001 AUMF, which purportedly definined who our enemies are (though the NDAA more logically includes AQAP in its scope than the 2001 AUMF)
  • Hamdi, which held the President could hold an American citizen in military detention under the 2001 AUMF
  • Ex Parte Quirin, which held that an American citizen who had joined the enemy’s forces could be tried in a military commission
  • Scott v. Harris (and Tennesee v. Garner), which held that authorities could use deadly force in the course of attempting to detain American citizens if that person posed an imminent threat of injury or death to others

In other words, Obama relied on substantially the same legal argument supporters of the NDAA detainee provisions made to argue that indefinite detention of American citizens was legal, with the addition of Scott v. Harris to turn the use of deadly force into an unfortunate side-effect of attempted detention.

And, oh, if you’re not an imminent threat but happen to be sitting next to the guy the government has determined is one? Duck.

The example of Anwar al-Awlaki–which Gude deftly chooses to ignore–not only shows that Obama fully endorses precisely the arguments made by the defenders of the indefinite detention provisions. But that he is willing to use the authority granted under the provisions to kill, rather than detain, American citizens.

Maybe using Obama’s beliefs about his detention authority really aren’t such a good election strategy after all.

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34 replies
  2. eCAHNomics says:

    LOL.

    Prezes don’t give up any power, they just expand it.

    It was a cinch that O would keep Yoo’s memos in force.

    In O’s second term, he will declare Occupies are terriss orgs, and the 700 who were arrested & released (to date), will be arrested & disappeared.

  4. emptywheel says:

    @eCAHNomics: Saw that. Trying to assess the credibility of it. If it’s true, it offers the added irony that our own govt has used spoofing in their domestic surveillance.

  5. eCAHNomics says:

    @emptywheel: Goes back to a comment of mine on an earlier thread that USG cybersecurity is well known for its incompetence. I had an exchange on this very type of hacking (and I’m a GPS/cyber moron) in the innocent days when the issue was USG supply convoys in Iraq that were tracked the same way.

  6. Jim White says:

    @emptywheel: @eCAHNomics: And if that’s true, it makes me think about the NATO attack on Pakistan’s border posts. Keep in mind that Pakistan claims that NATO’s first reporting to them on where the attack was taking place was nine miles away from where it really was.

  13. prostratedragon says:

    “But Obama is a fan of targeted killings.”

    Always check out that invisible other hand with these guys. Usually there’s something like this in it.

  15. eCAHNomics says:

    @MadDog: I have no idea. I’ve never clicked on any Wired link, which is why I am asking. All I know is about the Lamo-Manning contretemps, and not much about that either.

    So I’m looking for assessments from someone who actually knows.

  16. emptywheel says:

    @MadDog: The same Wired guy who was reiterating the “Nuclear surveillance” line this week?

    I’d be careful about concluding one and not the other is disinformation.

  17. emptywheel says:

    @MadDog: Ahem. Now seeing this debate. I find Wired writers to be of varying degrees of reliability or spin. On legal issues they can fall short. There’s the whole Kevin Poulsen problem. And in this case, I think the drone beat is a little too credulous of the received wisdom coming out here. Not unreliable per se, but too quick to believe US spin.

  18. emptywheel says:

    Also note John Pike’s claim that if they could break this key, they’d be breaking into banks.

    Well, um, someone broke into Lockheed earlier this year, and someone also broke into Creech.

  19. MadDog says:

    @emptywheel: Oh, I have zero doubt that on this topic the disinformation has been flowing both ways. There have been numerous examples in the MSM where anonymous US official sources were trying to sell some pretty awful BS on the drone drama.

    In the case of this “spoofing” claim by the anonymous single source Iranian via the Christian Science Monitor article, it seems rather coincidental that Public Intelligence at the same time publishes an official US Air Force document (110 page PDF) that documents the very same GPS spoofing vulnerabilities the anonymous Iranian hacker claims to have exploited.

    So as to “concluding one and not the other is disinformation”, I’m not there yet. The sources quoted in the Wired piece aren’t anonymous (Richard Langley of the University of New Brunswick and Todd Humphreys of the University of Texas) and that seems to add a measure of credibility to their GPS expertise statements, but again, who knows.

  20. MadDog says:

    @emptywheel: I take John Pike’s oft-quoted commentary on this topic with a large amount of salt. Probably the entire salt shaker. *g*

    From what I’ve read of his statements on the drone drama, John Pike has been right neat the top of the list of spinners with a decided bias to support any US position of the moment.

  22. MadDog says:

    @emptywheel: Yup, I agree with you that different writers at Wired have different levels of credibility. In the case of David Axe at Wired, who has written a number of Wired pieces on the drone drama, I’ve found numerous instances where his drone pieces states things as “facts” that are merely his opinions, and those opinions don’t convince me of either their accuracy or correctness.

  23. MadDog says:

    @emptywheel: Yeah, I’d agree with David Cenciotti that there is still a reasonable question about being able to actually land the RQ-170 without commandeering its flight control system.

  26. MadDog says:

    @emptywheel: My point was less about Adam Rawnsley at Wired than about his quoted sources which at least were not anonymous.

    A couple of things since I’ve been thinking about the CSM article since reading it yesterday (and Adam Rawnsley’s piece today):

    How do you jam a GPS signal to a stealthy and hard-to-detect RQ-170?

    If as Adam Rawnsley’s source Todd Humphreys states ““They mount their antennas on the top of the drones”, that seems entirely reasonable since the GPS signal is being transmitted from overhead satellites, and the placement of the drone’s antenna on the top of the drone is designed also to minimize its detect-ability from below. So how do you find a stealthy and hard-to-detect RQ-170 in order to jam its GPS signal?

    I am not a radio frequency or signals expert, but it would seem to me that a GPS-jamming signal would have to be tightly focused on a specific area to jam a particular aircraft’s reception or an immensely powerful GPS-jamming signal to blanket a large area.

    Both scenarios have their flaws. A tightly focused GPS-jamming signal would require knowledge about the target’s specific 3-D location in the air. An immensely powerful GPS-jamming signal to blanket a large area would likely be easily detectable. Would the US with its leadership in Sigint and Elint not be monitoring the airwaves in Afghanistan?

    Possibly, but not likely. We know that the US devotes a lot of Sigint and Elint resources to monitor and surveill cell phones of the Taliban in Afghanistan.

    Additionally, would the RQ-170 itself not have some systems aboard to determine whether it was a target of Iranian air-defense radar and other Iranian Elint activity against it?

    Additionally, consider how long the RQ-170 is supposed to be able to “loiter”. Though it may be less that the 20 hours reported for the propeller-driven Predator and Reaper drones, given the 85 feet wingspan of the jet-powered RQ-170, and wings are where the fuel is stored, the RQ-170 can probably spend a good number of hours in the air.

    With that in mind, did the supposed Iranian GPS-jamming signal (tightly focused or immensely powerful) continue for hours? If not, wouldn’t the correct US satellite GPS signal transmission resume its correct control of the RQ-170 when an Iranian GPS-jamming signal stopped?

    If the supposed Iranian GPS-jamming signal did continue for hours, in order for the Iranians to deplete the RQ-170’s fuel load and then cause it to perform an programmed autonomous landing after the fuel ran out, how is it that the US Sigint and Elint resources didn’t detect an hours-long Iranian GPS-jamming signal?

    If the supposed Iranian GPS-jamming signal did not continue for hours, then how did they get the RQ-170 to land? If there were no hours-long Iranian GPS-jamming signal, it would seem to mean a takeover of the RQ-170’s flight control system in order to get it to land. That seems more difficult given the reports about encryption of the RQ-170’s flight control system, but with that keylogger virus incident at Creech, perhaps an acquisition of RQ-170’s flight control system was a factor.

  29. MadDog says:

    @MadDog: Richard Clarke over at ABC News repeats the drone downing scenario as outlined via CSM:

    “…Iran could have stationed its newly acquired Russian Electronic Warfare (EW) truck mounted system, known as Avtobaza, near the nuclear facility. The Russian export is designed to manipulate the guidance and communications system of U.S. weapons. Using that system, Iran might have jammed the command-control link between the U.S. drone and the commercial satellite the drone uses to link back to its pilot.

    When the drone can’t talk to its pilot, after a while, it aborts its mission and goes home. To find its way home, the drone uses signals from the Global Positioning System (GPS) satellites. Unfortunately, the signal strength of the GPS satellites is relatively weak and a strong signal from something like the Russian EW systems can overpower it. This technique has been frequently demonstrated and allows something like the Russian trucks to “spoof” the GPS signal, pretending to be the satellite and providing false data to GPS receivers…

    [snip]

    …[T]he RQ-170, unable to phone home, would have tried instead to fly home, but it would do so using a GPS signal that Iran was spoofing. By telling the drone that west was east and then giving it more detailed mis-directions, Iranian electronic specialists could have flown the aircraft to a base where Iranian intelligence officers were waiting for it. When the RQ-170 got to where it thought its home base was located, it would have landed on auto-pilot…”

    This totally ignores the points I made in my comment # 26 above:

    1) How do you locate a stealthy RQ-170 drone that you can’t see?

    2) How do you target a stealthy RQ-170 drone you can’t locate to jam its reception of the GPS signal using either a tightly focused or immensely powerful jamming transmission?

    3) How to you get a stealthy RQ-170 drone to land at your desired location when it has hours of fuel to use without maintaining the GPS spoof jamming (tightly focused or immensely powerful) for hours?

    4) How do you maintain the GPS spoof jamming (tightly focused or immensely powerful) signal for hours without being detected?

    5) If you didn’t maintain the GPS spoof jamming (tightly focused or immensely powerful) signal for hours, then why didn’t the original good GPS signal get re-established and return the RQ-170 drone to its correct airbase?

  30. P J Evans says:

    @Jake:
    Don’t hold your breath. The courts these days are more interested in preserving what power they still have, not in protecting the average citizen from government’s abuses of power.

  32. Bob Schacht says:

    I hope this thread is not dead already. A correspondent on another list read both Jonathan Turley’s piece (Obama Broke His Promise) , and Robert Scheer’s rant (There Goes the Republic), and then went back to read the NDAA. He’s not a lawyer, but says that it doesn’t look to him like the NDAA does what Turley and Scheer are afraid that it does. That is, the things that it seems to authorize were already authorized under the damned AUMF– a clarification rather than an enhancement? From EW’s opening comments, it would seem that she does support Turley’s and Scheer’s reading of the NDAA. I’d like to see some general discussion about if, in fact, this NDAA really does mean an enhancement of detention authority, extraordinary rendition, etc.

    Thanks,
    Bob

  33. rugger9 says:

    Well, the Crazy Republican strategy has been the principal one for a while now, after all of the so-called legit contenders for the GOP nomination dropped out. None of them are free of baggage, however, with lots of oppo to be found. Now, if the convention is where the nominee is selected by Grover and Karl, with the Koch money already tying up all of the airwaves [and preventing access where they don’t buy, see KKGN 960 as an example], any unfortunate facts will be squelched and Obama would lose to a nobody. Similar in the idea to Skeffington in the Last Hurrah.

  34. Bob Schacht says:

    @rugger9: Dunno. Looks to me more like Goldwater 1964. But the Republican Convention next year just might get interesting, especially considering that they’re allocating votes proportionally rather than winner gets all. That means that everyone is gonna have delegates at the convention (unless they pull out and ask their delegates to vote for Joe the Plumber, or whoever is their flavor of the moment.) After the convention, it’ll be like Goldwater 1964. And isn’t that a bit ironic, considering that the slogan that did Goldwater in was a combination of “Extremism in defense of Liberty is no vice” and LBJ’s helpful picture of a mushroom cloud. Ironic because at least 25% of the Republican Party today agrees with Goldwater 1964.

    What makes things interesting is that Republicans this year passionately want (a) someone who echoes their prejudices, with conviction and a record to match, and (b) someone who can beat Obama. ISTM those two priorities are in conflict with each other.

    Bob in AZ

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