Let the gnashing of teeth commence:
Two days before the deadline, President Obama signed a defense spending bill into law - while admitting he has "serious reservations with certain provisions" related to how suspected terrorists are held and questioned.
In a written statement, Mr. Obama makes clear he objects to sections in the National Defense Authorization Act that "regulate the detention, interrogation and prosecution of suspected terrorists."
Despite his objections, Mr. Obama says he signed the measure, known by its initials NDAA, because it authorizes needed funding to defend the nation, support the military and renew "vital national security programs."
Among the provisions to which the president objects is a grant of permission for the indefinite military detention of terror suspects by the military.
Mr. Obama said he didn't ask for such authority and doesn't want it.
Flat out, the provisions suck, no matter what kind of rationalizations put on them. They codify measures put in place by the Bush administration that run counter not only to our Constitution, but to the notion of the rule of law since the Magna Carta.
It's all well and good that Obama says he won't use it with his signing statement (copy of statement in full at ThinkProgress) and the pragmatic side of me acknowledges that it would be a huge political minefield to send back the larger NDAA two days before the deadline (Obama hates the troops!) because of some discrete provisions that can be dealt with separately later. So I'm not going to join the crowd outraged by this move, as heinous as I think it is. Simply put, those provisions shouldn't have been in the NDAA to start with but the larger budgetary requirements made a whole lot of Democrats who have expressed dismay about those provisions go ahead and vote for it. I heard Debbie Wasserman Schultz on The Randi Rhodes Show using that exact calculus with guest host Nicole Sandler, but assuring Nicole that she was already planning on working with other Dems to repeal those provisions as soon as Congress reconvenes.
The New York Times editorial on the NDAA is, unfortunately, representative of many of the false alarms being sounded about the legislation. The Times complains that the NDAA “ban[s] . . . spending any money for civilian trials for any accused terrorist,” “strip[s] the F.B.I., federal prosecutors and federal courts of all or most of their power to arrest and prosecute terrorists,” and “give[s] future presidents the authority to throw American citizens into prison for life without charges or a trial.”
If this were an accurate description of the final legislation, it would be even more extreme than the House-passed version, which the President’s senior advisers recommended that he veto. But the bill the President just signed does none of these things. (For a comprehensive run-down of what the bill includes, see this post from Bobby Chesney and Ben Wittes.) Yes, the House-passed bill would have comprehensively prohibited expenditures for criminal trials of terrorism suspects; but the Administration successfully insisted that the conferees strip that provision from the final bill. As for law enforcement authorities, the conferees added the provision quoted above, expressly confirming that “[n]othing in [section 1022] 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.” Therefore the bill cannot possibly be read to “strip the F.B.I., federal prosecutors and federal courts of all or most of their power to arrest and prosecute terrorists.”
And, as to lifetime detention of U.S. persons, the bill by its very terms (thanks to an amendment introduced by Senator Feinstein) confirms what would have been the proper reading anyway—namely, that its detention authorization provision (section 1021) does not “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.” For good measure, section 1022 also provides that its purported presumption of military detention “does not extend to citizens of the United States.” The NDAA therefore leaves open, and does not affect, the unresolved questions raised in the Padillaand al-Marri cases–i.e., whether the AUMF authorizes the long-term military detention of U.S. citizens and lawful resident aliens who are apprehended in the United States. Those questions will not be raised as long as President Obama is in office, since “it is the firm position of the Obama Administration that suspected terrorists arrested inside the United States will—in keeping with long-standing tradition—be processed through our Article III courts, as they should be,” and that “when it comes to U.S. citizens involved in terrorist-related activity, whether they are captured overseas or at home, we will prosecute them in our criminal justice system.”