Civil libertarian’s (I am writing of real ones, not Ron Paul), are hopping mad at President Obama. Green Greenwald has written extensively on the National Defense Authorization Act for Fiscal 2012, a law he calls the “Indefinite Detention Bill”. Greenwald I try to ignore, as he finds (intelligent) ways to attack this President with a regularity that makes me wonder why Rupert Murdoch hasn’t called yet. The Salon.com writer is one of the intellectual leaders of the liberal fantasy parade that dreams a “stronger” president, or at least one who is less of a “corporatist” could have passed tougher health care reform and other dreamy dreams.
Jonathan Turley is another story; the respected constitutional scholar is brilliant, consistent, and well-meaning. His recent post on the appropriation bill, its content, and the President’s decision to sign it must be taken seriously. And serious is the best description for the thrashing given President Obama by Turley in his recent piece. The issues central to this debate are difficult for me; as a fervent Obama supporter, his record on civil liberties is (for me) a painful failing. I desired a stronger, more brisk roll-back of Bush-era tactics, President Obama has fallen short of the mark. But I will point out that the criticism of this President on this signing has, as is typical, overshot its mark. I will also point out that its mean-spirited tone, and monolithic objection to available evidence is typical of the behavior the anti-Obama liberal sees in Obama apologists.
Turley, Greenwald, and other observers who I respect have legitimate concerns about this piece of legislation and its ramifications on the liberties that our troops have fought and died to preserve. In that spirit, most of us in the mainstream have allowed too much of our most basic rights regarding evidence, property, and person to go by the wayside. Fear, fear of terrorist attack, has led us to give up a little freedom in exchange for a little security. Ben Franklin cautioned us more than 200 years ago against taking that very step. But the Greenwalds of the world have gone too far in asserting that the President has intentionally stepped towards dictatorial powers, and Greenwald himself has grown ever more willing to twist and mislead in his mission to sully this President.
In the pieces cited above, Turley steps outside of the facts in citing Carl Levin’s metaphorical tossing of the President under the bus. Levin’s own statement is clear and unambiguous in noting that the language of section 1021 was intended to preclude the indefinite detention of American citizens. Why then would Turley use Levin’s statement as proof that Obama used the signing as a tool to gain the power to indefinitely detain American citizens? Similarly, Greenwald and others toss aside objections to criticism by pointing to language in the bill they find unclear. Where sections are clearly titled, Greenwald unilaterally limits their scope. Where language is ambiguous, he is prepared to draw the most sweeping conclusions. From his above cited article:
There are two separate indefinite military detention provisions in this bill. The first, Section 1021, authorizes indefinite detention for the broad definition of “covered persons” discussed above in the prior point. And that section does provide that “Nothing in this section shall be construed to 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.” So that section contains a disclaimer regarding an intention to expand detention powers for U.S. citizens, but does so only for the powers vested by that specific section. More important, the exclusion appears to extend only to U.S. citizens “captured or arrested in the United States” — meaning that the powers of indefinite detention vested by that section apply to U.S. citizens captured anywhere abroad (there is some grammatical vagueness on this point, but at the very least, there is a viable argument that the detention power in this section applies to U.S. citizens captured abroad).-Glenn Greenwald, Salon
This is the section in question:
SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF
THE UNITED STATES TO DETAIN COVERED PERSONS
PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY
(a) IN GENERAL.—Congress affirms that the authority of the
President to use all necessary and appropriate force pursuant to
the Authorization for Use of Military Force (Public Law 107–40;
50 U.S.C. 1541 note) includes the authority for the Armed Forces
of the United States to detain covered persons (as defined in subsection
(b)) pending disposition under the law of war.
(b) COVERED PERSONS.—A covered person under this section
is any person as follows:
(1) A person who planned, authorized, committed, or aided
the terrorist attacks that occurred on September 11, 2001,
or harbored those responsible for those attacks.
(2) A person who was a part of or substantially supported
al-Qaeda, the Taliban, or associated forces that are engaged
in hostilities against the United States or its coalition partners,
including any person who has committed a belligerent act or
has directly supported such hostilities in aid of such enemy
(c) DISPOSITION UNDER LAW OF WAR.—The disposition of a
person under the law of war as described in subsection (a) may
include the following:
(1) Detention under the law of war without trial until
the end of the hostilities authorized by the Authorization for
Use of Military Force.
(2) Trial under chapter 47A of title 10, United States
Code (as amended by the Military Commissions Act of 2009
(title XVIII of Public Law 111–84)).
(3) Transfer for trial by an alternative court or competent
tribunal having lawful jurisdiction.
(4) Transfer to the custody or control of the person’s country
of origin, any other foreign country, or any other foreign entity.
(d) CONSTRUCTION.—Nothing in this section is intended to limit
or expand the authority of the President or the scope of the
Authorization for Use of Military Force.
(e) AUTHORITIES.—Nothing in this section shall be construed
to 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
(f) REQUIREMENT FOR BRIEFINGS OF CONGRESS.—The Secretary
of Defense shall regularly brief Congress regarding the application
of the authority described in this section, including the organizations,
entities, and individuals considered to be ‘‘covered persons’’
for purposes of subsection (b)(2).
Not only does the section specifically preclude the indefinite detention of American citizens, it precludes the indefinite detention of anyone captured or detained in the United States. But it gets better; Glenn Greenwald goes on to write this paragraph:
But the next section, Section 1022, is a different story. That section specifically deals with a smaller category of people than the broad group covered by 1021: namely, anyone whom the President determines is “a member of, or part of, al-Qaeda or an associated force” and “participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.” For those persons, section (a) not only authorizes, but requires (absent a Presidential waiver), that they be held “in military custody pending disposition under the law of war.” The section title is “Military Custody for Foreign Al Qaeda Terrorists,” but the definition of who it covers does not exclude U.S. citizens or include any requirement of foreignness.-Glenn Greenwald, Salon (italics my emphasis)
Again, from the actual law:
(b) APPLICABILITY TO UNITED STATES CITIZENS AND LAWFUL
(1) UNITED STATES CITIZENS.—The requirement to detain
a person in military custody under this section does not extend
to citizens of the United States.
(2) LAWFUL RESIDENT ALIENS.—The requirement to detain
a person in military custody under this section does not extend
to a lawful resident alien of the United States on the basis
of conduct taking place within the United States, except to
the extent permitted by the Constitution of the United States.
Jonathan Turley is a committed scholar and patriot with whom I have a disagreement. Glenn Greenwald, however, is a liar who has fallen in love with his own image. Period. Once again…please don’t trust me. Read Greenwald’s piece at the otherwise excellent Salon.com. Read Turley’s excellent blog. Read the President’s full signing statement. Go to the actual bill online (cited above twice and here), click on the binoculars on the left sidebar, and type 1021. Read the reality, not the spin, then decide for yourself.
The Rational Middle is listening…