Benjamin Wittes at the Lawfare Blog has written a terrific explainer on what the NDAA does, and does not do.

Key point rebutting the contention that the indefinite detention provisions apply to United States citizens:

Section 1022 purports not merely to authorize but to require military custody for a subset of those who are subject to detention under Section 1021. In particular, it requires that the military hold “a covered person” pending disposition under the law of war if that person is “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 is participating in an attack against the United States or its coalition partners. The president is allowed to waive this requirement for national security reasons. The provision exempts U.S. citizens entirely, and it applies to lawful permanent resident aliens for conduct within the United States to whatever extent the Constitution permits. It requires the administration to promulgate procedures to make sure its requirements do not interfere with basic law enforcement functions in counterterrorism cases. And it insists that “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.”

And this point regarding Guantanamo Bay facilities:

Sections 1026 and 1027 prevent the use of federal funds for building detention facilities in the United States or transferring Guantanamo detainees to domestic facilities or releasing them into the United States. It effectively continues a congressional policy of preventing more Article III criminal trials of Guantanamo detainees and preventing the construction of alternative facilities that would enable President Obama to fulfill his promise to shutter Guantanamo.

I have argued for a very long time that Congress, not the President, was responsible for the failure to close Guantanamo, mostly to deaf ears. This bill passed with a huge bipartisan majority in both houses, so I'm unsure how anyone but Congress can own this now.

Wittes has more on that later in the post:

Yes. The NDAA does three things that make it impossible, at least during fiscal year 2012, for President Obama to fulfill his promise to close the detention facility at Guantanamo Bay. It forbids him to spend any money readying an alternative site to house detainees in the United States. It forbids transfers of detainees to the United States. And it makes it difficult–though a little less difficult than it is under the current spending restrictions–to transfer detainees to third countries. To close Guantanamo, the administration would have to transfer a bunch of detainees to other countries, and it would have to move a bunch of other detainees to some alternative facility. So as long as these restrictions exist in U.S. law, Guantanamo is going nowhere.

These restrictions, it is worth noting, are already in current law. So while they are (in our opinion) bad ideas, they are by no means new the NDAA.

Finally, there is this bit which should actually please civil libertarians. It was added as part of the negotiation after the President's veto threat:

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Friday marked the one-year anniversary of President Obama signing an executive order to close the detention center at Guantánamo Bay. We were all cheered and encouraged by this bold move on the president’s second full day in office — it signaled he was ready to make a clean break from the Bush administration's unlawful and shameful detention policies.

But when the Obama administration finally does close Guantánamo, it's vital that the administration also puts an end to the policy of detaining prisoners without charge or trial. Indefinite detention is one of the practices that's made Gitmo a disgrace in the eyes of the rest of the world.

Late last year, we debuted a video that included interviews with five former Guantánamo detainees.

Last week we released four break-out videos featuring the same five men telling their stories in more depth: They talk about their lives before ending up in U.S. custody, their experiences at Guantánamo and other U.S.-run detention facilities, and how they've pieced their lives back together after Gitmo. All of the men featured in our video series, like hundreds of others who were held for years at Guantánamo, were eventually released without any charge.

British citizen Moazzam Begg was in Afghanistan, working to open a school for girls, when he was captured. He says in the video: "My experience of America prior to this was everything I had seen in the films: the concept of the good guys, the concept of people trying to do the right thing. And that was shattered."

Bisher al-Rawi was captured in Gambia, where he hoped to open a peanut factory with his brother.

Omar Deghayes was detained at Guantánamo for six years. He was blinded in his right eye after a Gitmo prison guard jabbed him in the face with his fingers.

Childhood friends Shafiq Rasul and Ruhal Ahmed are two of the "Tipton Three," the subjects of the documentary Road to Guantánamo. They traveled to Afghanistan after attending a friend’s wedding in Pakistan, and were captured there. They both spent 2 ½ years detained by the U.S.

More than 700 men have been detained at Guantánamo since it opened eight years ago; 198 remain. Most of them could tell similar stories about their years-long detention.

To close Gitmo properly, the remaining detainees must either be released, or charged and tried in federal courts, which are better-equipped to handle these cases than the unconstitutional military commissions. Consider the military commissions' track record: A grand total of three cases have been completed since Guantánamo opened as a detention facility in January 2002. Federal courts, on the other hand, have successfully tried more than 200 terrorism cases, including those of the “Blind Sheik” Omar Abdel-Rahman for his role in the 1993 bombing of the World Trade Center, “shoe-bomber” Richard Reid, and Zacarias Moussoui for conspiring in the 9/11 attacks. The so-called underwear bomber, Abdul Farouk Abdulmutallab, was arraigned in federal court on terrorism charges 14 days after he tried to blow up an airplane. In contrast, most detainees at Guantánamo have languished there for years, without charges brought against them and no end to their detention in sight.

Of those detainees who remain at Guantánamo, Bisher al-Rawi says: "If the U.S. thinks somebody is a criminal, that’s fine. Take him to court and let him have his day in court…either you release people or give them justice, true justice, with no deception, no lies."

Maybe this sinking feeling in my gut would go away if anyone in the Obama administration bothered to explain the specifics of why they believe indefinite detention is necessary. How can you be so sure someone is too dangerous to release, and yet not have enough evidence to prosecute them?

The Obama administration, fearing a battle with Congress that could stall plans to close the U.S. prison at Guantanamo Bay, is drafting an executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely, according to three senior government officials with knowledge of White House deliberations.

Such an order would embrace claims by former president George W. Bush that certain people can be detained without trial for long periods under the laws of war. Obama advisers are concerned that bypassing Congress could place the president on weaker footing before the courts and anger key supporters, the officials said.

After months of internal debate over how to close the facility in Cuba, White House officials are increasingly worried that reaching quick agreement with Congress on a new detention system may be impossible. Several officials said there is concern in the White House that the administration may not be able to close the facility by the president's January deadline.

White House spokesman Ben LaBolt said there is no executive order and that the administration has not decided whether to issue one. But one administration official suggested that the White House was already trying to build support.

"Civil liberties groups have encouraged the administration, that if a prolonged detention system were to be sought, to do it through executive order," the official said. Such an order could be rescinded and would not block later efforts to write legislation, but civil liberties groups generally oppose long-term detention, arguing that detainees should be prosecuted or released.

Big Tent Democrat and Glenn Greenwald reactions here.

Haven't we already seen this movie? Didn't we already reject this policy with Obama's election? I didn't vote for him because I wanted him to embrace Bush's policies, and if he does, I want a damned good legal explanation:

WASHINGTON -- The Obama administration is weighing plans to detain some terror suspects on U.S. soil -- indefinitely and without trial -- as part of a plan to retool military commission trials that were conducted for prisoners held in Guantanamo Bay, Cuba.

The proposal being floated with members of Congress is another indication of President Barack Obama's struggles to establish his counter-terrorism policies, balancing security concerns against attempts to alter Bush-administration practices he has harshly criticized.

On Wednesday, the president reversed a recent administration decision to release photos showing purported abuse of prisoners at U.S. military facilities in Iraq and Afghanistan. Mr. Obama cited concern that releasing the pictures could endanger U.S. troops. Mr. Obama ordered government lawyers to pull back an earlier court filing promising to release hundreds of photos by month's end as part a lawsuit brought by the American Civil Liberties Union.

[...] Sen. Lindsey Graham (R., S.C.), who met this week with White House Counsel Greg Craig to discuss the administration's plans, said among the proposals being studied is seeking authority for indefinite detentions, with the imprimatur of some type of national-security court.

Sen. Graham said he wants to work with the administration to pass legislation to increase judicial oversight of military commissions, but noted the legal difficulties that would arise.

"This is a difficult question. How do you hold someone in prison without a trial indefinitely?" Sen. Graham said.

Vast Left-Wing Conspiracy: Open letter to Jeremy Lott and Mary Cheney’s bundle of joy. Meanwhile. at the Pundit Bar, George Packer, an Iraq expert who got everything wrong during the build-up to the war -- is back with his own very special brand of cluelessness...and we can't decide if this MSM hack is a liar, a moron, or both.

The Washington Note: More about the White House pressure on Flynt Leverett to bury his critical NYT op-ed.

Matthew Yglesias: No more Mr. Nice Indefinite Detention Without Trial in Gitmo.

the talking dog: Interview with Trevor Paglen, co-author (with A.C. Thompson) of "Torture Taxi: Onthe Trail of the CIA Rendition Flights", the first book to systematically investigate the CIA's extraordinary rendition program

Orcinus: Looks like Michelle Malkin is gonna be served a large plate of crow...

OFF THE BEATEN PATH: bending left...Consortiumblog... Rancho La Luna...Musings of a working mom

I just watched the new movie called " Jesus Camp,' where kids pray to a cardboard cut out of George Bush because he's a messianic/Jesus figure to them. Are their prayers being answered as he institutes torture?

Digby:

People and societies don't just wake up one morning to find they no longer recognize themselves. It's a process. And we are in the process in this country of "defining deviancy down" in ways I never thought possible. We are legitimizing torture and indefinite detention --- saying that we will only do this to the people who really deserve it. One cannot help but wonder what "really deserves it" will mean in the years to come as we fight our endless war against terror...read on