Inspiring Attorney-Client Crackdowns

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Those of us who watch Gitmo legal issues have wondered since late last year why the prison had imposed new clean team processes on communications between lawyers and their clients. We learned the beginnings of an answer today. DOD found a copy of the AQAP propaganda magazine Inspire in a detainee’s cell.

Navy Cmdr. Andrea Lockhart blurted out the embarrassing disclosure in defending the prison camps commander’s plan to give greater scrutiny to legal mail bound for alleged terrorists. She was discussing a system used by civilian lawyers to send materials to Guantánamo captives who are suing the U.S. for their freedom through habeas corpus petitions in Washington, D.C.

But the government either didn’t offer or doesn’t know why and how the magazine got there.

Pentagon and prison spokesman could not immediately provide details about which edition of the magazine reached the camps, whether a captive had actually seen one and how prison camp personnel discovered it.

And that’s all the more significant given a detail Spencer Ackerman noted on Twitter: Inspire is English.

Most of the detainees left at Gitmo are Arabs.

Granted, it’s a very glossy magazine. The picture above–the most innocuous I could find in the most recent edition [note, Inspire downloads are tracked by DHS and DOJ, so think twice before you download]–appears in a discussion of torture; perhaps it represents waterboarding.

But for detainees with limited English skills, even quotes like this one, which appeared in the same edition and was attributed to Human Rights lawyer Clive Stafford Smith, appearing among a bunch of self-criticisms of our conduct on the war on terror, would be of interest to detainees, but not necessarily great reading material.

It would be absurd to say that torture never gets a result that’s true; of course it does. I mean I could torture you and get your name very quickly. But the first question you always have to ask is this: is torturing someone making the world safer or is it actually inspiring people, that we’re such hypocrites about democracy and the rule of law, that they hate us more? Now you cannot look at the last ten years and say that what we did in Guantanamo Bay and the torture that we’ve done elsewhere has made the world safer; that’s just an untenable position.

That is, there surely would be topics of interest in the magazine, but Gitmo detainees aren’t the audience. (In this issue, there’s one more mention of Gitmo.)

So why did a detainee have one in his cell?

Maybe the magazine was (remember, it wasn’t necessarily this edition) given to detainees to show what others were saying about the detainees or the torture. Maybe the folks running Gitmo believe whoever got the magazine is still trying to exert operational control, which would be a legitimate, serious concern (though would still not implicate the lawyers).

And I find it rather interesting that this happened some time after Samir Khan, the producer of Inspire, got killed in the Anwar al-Awlaki drone strike.

Or it could be something else, as Shayana Kadidal noted:

“Detainees have in the past received books, truck magazines, chewing tobacco, personal electronics, and fancy underwear as perks of cooperating with interrogators,” said attorney Shayana Kadidal of The Center for Constitutional Rights.

“If this magazine was provided to a detainee by an interrogator, it would not mark the first time that sort of thing has happened,” he said, “nor the first time the government had implied that the detainee’s attorneys must have brought him the item.”

Frankly, I don’t know what to make of it. It could mean anything from KSM exercising operational influence again–which would be a genuine concern–to a guard being nice to a detainee.

But the same magazine that justified the killing of American citizens now serves to justify the infringement of attorney-client privilege.

The Home of the Free Got Foreclosed

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On Wednesday’s Gitmo anniversary, Jonathan Turley had a WaPo column listing 10 reasons why the US was no longer the “land of the free.” I thoroughly endorse his list:

Assassination of US citizens

Indefinite detention

Arbitrary justice

Warrantless searches

Secret evidence

War crimes (impunity for torture)

Secret court

Immunity from judicial review

Continual monitoring of citizens

Extraordinary renditions

But I do think the list skews (not surprisingly, given that it was a GItmo anniversary piece) to ways the war on terror have circumscribed our civil rights and rule of law generally.

It’s worth noting that the same things have been happening domestically, with at best only a tangential tie to “security.” For example, where Turley describes renditions and indefinite detention, he might as well have included the immigration deportation system, which like the terrorism one operates with a great deal of arbitrariness, but which also rounds up more American citizens. Turley discusses surveillance generally, but we should note that some of that war on terror surveillance–National Security Letters and drones, for example–are being used increasingly in criminal law enforcement. Add in the increasing militarization of the police–some of which came directly from the drug war, some of which has been reapplied generally in the name of national security.

And then there’s the courts. Even putting the defunding of legal aid aside, even putting aside the broad push to force consumers and employees into privatized arbitration rather than courts, even our legal system itself is showing signs of failure. Most spectacularly, that failure shows in efforts to let banks steal homes so as to pass all the losses of the banks’ own failures onto homeowners.

Turley is right that the war on terror has chipped away at fundamental freedoms. But so has increased corporate power and related efforts to coerce the 99%.

It’s not just that Al Qaeda bombed the land of the brave; so, too, did America’s own corporations foreclose on the home of the free.

Who Will Redact Our Next Big Constitutional Debate?

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In her Gitmo anniversary piece, Dahlia Lithwick, piggybacking on Adam Liptak’s earlier report, used the extensive redactions in the DC Circuit Opinion overturning Adnan Latif’s habeas petition to illustrate how little the courts are telling us about his fate, our detention program, and its impact on the most basic right in this country, habeas corpus.

But in the spirit of the day, I urge you to stop for a moment and look at the decision itself, so heavily redacted that page after page is blacked out completely. The court, in evaluating a secret report on Latif, can tell us very little about the report and thus the whole opinion becomes an exercise in advanced Kafka: The dissent, for instance notes that “As this court acknowledges, “the [district] court cited problems with the report itself including [REDACTED]. … And according to the report there is too high a [REDACTED] in the report for it to have resulted from [REDACTED].” Liptak describes all this as an exercise in “Mad Libs, Gitmo Edition.” But in the end, it’s also an exercise in turning the legal process of assessing the claims of these prisoners at Guantanamo Bay into something that replaces one legal black hole with another: pages and pages of black lines that obscure in words what has been obscured in fact. Americans will never know or care what was done at the camp and why if the legal process that might have transparently corrected errors happens behind blacked-out pages.

Latif’s classified petition for cert has just been filed.

We won’t get to see that petition, though, until after the court redacts it, at which point it will presumably look just like the Circuit Opinion–page after page of black lines.

It’s worth asking who will get to redact that petition, which is after all an important effort not only to free a man cleared for release years ago, but also to restore separation of powers and prevent detainees and Americans alike from being held solely on the basis of an inaccurate intelligence report.

That’s important because, thus far, the existing court documents in this case have been redacted inconsistently.

We know that because the dissent in the Circuit Opinion quotes language from Judge Henry Kennedy’s ruling, yet that language doesn’t appear anywhere in the unredacted sections of his ruling itself. For example, David Tatel refers to the “factual errors” Kennedy described (21; PDF 88) and cites Kennedy’s repetition of Latif’s explanation for having lost his passport–he “gave it to Ibrahim [Alawi] to use in arranging his stay at a hospital.” (37; PDF 104)  Yet the appearances of these phrases have been entirely redacted from Kennedy’s opinion (there are many more fragments for which the same is true, supporting general claims about the inaccuracy of the report, but they are less specific).

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This Gitmo Anniversary Needs to Be about Bagram, Too

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On a near daily basis in the last week or so, Jason Leopold has tweeted some quote from the daily White House press briefing in which a journalist asks Jay Carney a question about detention, to which Carney responds by insisting the Administration still intends to close Gitmo.

Q    One other topic.  Wednesday is apparently the 10th anniversary of the prison in Guantanamo Bay, and I’m wondering what the White House says now to critics who point to this as a pretty clear broken promise.  The President had wanted to close that within a year.  That hasn’t happened for a lot of the history that you know of.  And now it’s like there’s really no end in sight.  How do you respond to the criticism that this is just a big, broken promise?

MR. CARNEY:  Well, the commitment that the President has to closing Guantanamo Bay is as firm today as it was during the campaign.  We all are aware of the obstacles to getting that done as quickly as the President wanted to get it done, what they were and the fact that they continued to persist.  But the President’s commitment hasn’t changed at all.  And it’s the right thing to do for our national security interests.

That has been an opinion shared not just by this President or members of this administration, but senior members of the military as well as this President’s predecessor and the man he ran against for this office in the general election.  So we will continue to abide by that commitment and work towards its fulfillment.

And that response usually succeeds in shutting the journalist up.

No one has, as far as I know, asked the more general question: “does the Administration plan to get out of the due process-free indefinite detention business?” That question would be a lot harder for Carney to answer–though the answer, of course, is “no, the Administration has no intention of stopping the practice of holding significant numbers of detainees without adequate review.” Rather than reversing the practice started by the Bush Administration, Obama has continued it, even re-accelerated it, expanding our prison at Bagram several times.

That question seems to be absent from discussions about Gitmo’s anniversary, too. Take this debate from the NYT.

Deborah Pearlstein takes solace in her assessment that Gitmo has gotten better over the last decade.

In 2002, detention conditions at the base were often abusive, and for some, torturous. Today, prisoners are generally housed in conditions that meet international standards, and the prison operates under an executive order that appears to have succeeded in prohibiting torture and cruelty. In 2002, the U.S. president asserted exclusive control over the prison, denying the applicability of fundamental laws that would afford its residents even the most basic humanitarian and procedural protections, and rejecting the notion that the courts had any power to constrain executive discretion. Today, all three branches of government are engaged in applying the laws that recognize legal rights in the detainees. Guantánamo once housed close to 800 prisoners, and most outside observers were barred from the base. Today, it holds 171, and independent lawyers, among others, have met with most detainees many times.

But she doesn’t mention that the Administration still operates a prison alleged to be abusive, even torturous, still rejects the notion that courts have any power to constrain executive discretion over that prison. And that prison holds over 3,000 men in it!

Sure, Gitmo has gotten better, but that only serves to distract from the fact that our detention practices–except for the notable fact that we claim to have ended the most physical forms of torture–have not.

David Cole scolds those in Congress who “don’t seem troubled at all about keeping men locked up who the military has said could be released, or about keeping open an institution that jeopardizes our security,” yet doesn’t mention that Bagram does the same. Nor does he note the part of the Administration’s NDAA signing statement that suggested Congress’ salutary effort to expand detainee review would not necessarily apply to Bagram. How can it all be Congress’ fault when Obama isn’t fulfilling the letter of the law providing more meaningful review to those we’re holding at Bagram?

Even the brilliant Vince Warren focuses on the “legal black hole” that is Gitmo, without mentioning the bigger legal black hole that is Bagram.

Among the four participants in the debate, only Eric Posner even mentions Bagram, suggesting that that’s one less optimal alternative to keeping prisoners at Gitmo.

To be sure, there are other options. Detainees could be placed in prison camps on foreign territory controlled by the U.S. military, where they lack access to U.S. courts and security is less certain.

But then Posner misconstrues the issue.

Some critics believe that the whole idea of a war on terror is misconceived, that Congress could not have lawfully declared war on Al Qaeda, and that therefore suspected members of Al Qaeda cannot be detained indefinitely like enemy soldiers but must either be charged in a court or released. This position has been rejected repeatedly by the courts, but even if it were correct, Guantánamo would remain a legitimate place to detain enemy soldiers picked up on “hot” battlefields wherever they may be now or in the future — places like Afghanistan, Iraq, Libya and maybe soon Iran, to name a few.

There’s a difference between what is legal under international law developed for very different wars and what is just or what is the best way to conduct that war. And the problem with Gitmo (mitigated somewhat over the decade)–and the problem with Bagram, still–is that we’re spending unbelievable amounts of money to detain and abuse people that we haven’t even adequately reviewed to make sure we need to detain them. That’s not a smart way to conduct a war, particularly not one its backers insist will never end, particularly one that depends on our ability to win support among Afghans and other Muslims.

The only thing that was and is problematic about Gitmo that is not also problematic about Bagram is the publicity surrounding it (presumably, though, just here and in Europe–I imagine Afghans, Pakistanis, and al Qaeda members know as much about Bagram as they do about Gitmo). That is, by treating–and allowing the Administration to treat–Gitmo as the problem, rather than due process-free and possibly abusive indefinite detention generally, we’re all acting as if the problem is that people know we’re conducting due process-free indefinite detention, not that we’re doing it at all. We’re letting the Administration off easy with its claims that mean old Congress has prevented it from closing Gitmo, when Bagram offers proof that it wants to do so not for the right reasons–because it is wrong, because it damages our ability to claim to offer something better than corrupt regimes–but because what America has become and intends to stay is embarrassing, politically inconvenient.

I understand that this anniversary will attract general attention to Gitmo. I’m thrilled that, for once, people are listening to the reporters and activists and lawyers and guards and especially the detainees who have fought to close it. But by allowing the myth that Gitmo is the problem to go unchallenged, and not our due process-free indefinite detention generally, we’re simply pretending that unjust and stupid actions that occur outside of the glare of the press don’t matter as much as those that make the news.

Our New Teachers about Rule of Law

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The Gray Lady is dedicating space this week to reflections on Gitmo. In addition to a debate on it (more on that tomorrow), it offered Lakhdar Boumediene and Murat Kurnaz space to tell their stories, albeit in the opinion section.

Both men told of their terrible treatment.

But both also discussed what they learned about American rule of law by being falsely imprisoned for years.

Boumediene describing losing faith in American justice, which not even the knowledge that the case bearing his name is taught in American law schools has yet returned, given the number of men who remain unjustly imprisoned.

The fact that the United States had made a mistake was clear from the beginning. Bosnia’s highest court investigated the American claim, found that there was no evidence against me and ordered my release. But instead, the moment I was released American agents seized me and the five others. We were tied up like animals and flown to Guantánamo, the American naval base in Cuba. I arrived on Jan. 20, 2002.

I still had faith in American justice. I believed my captors would quickly realize their mistake and let me go. But when I would not give the interrogators the answers they wanted — how could I, when I had done nothing wrong? — they became more and more brutal.

[snip]

About 90 prisoners have been cleared for transfer out of Guantánamo. Some of them are from countries like Syria or China — where they would face torture if sent home — or Yemen, which the United States considers unstable. And so they sit as captives, with no end in sight — not because they are dangerous, not because they attacked America, but because the stigma of Guantánamo means they have no place to go, and America will not give a home to even one of them.

I’m told that my Supreme Court case is now read in law schools. Perhaps one day that will give me satisfaction, but so long as Guantánamo stays open and innocent men remain there, my thoughts will be with those left behind in that place of suffering and injustice. [my emphasis]

Kurnaz describes watching Germans, upon his return, teaching Americans about something once renewed in Germany by the Nuremberg trials: the rule of law.

I LEFT Guantánamo Bay much as I had arrived almost five years earlier — shackled hand-to-waist, waist-to-ankles, and ankles to a bolt on the airplane floor. My ears and eyes were goggled, my head hooded, and even though I was the only detainee on the flight this time, I was drugged and guarded by at least 10 soldiers. This time though, my jumpsuit was American denim rather than Guantánamo orange. I later learned that my C-17 military flight from Guantánamo to Ramstein Air Base in my home country, Germany, cost more than $1 million.

When we landed, the American officers unshackled me before they handed me over to a delegation of German officials. The American officer offered to re-shackle my wrists with a fresh, plastic pair. But the commanding German officer strongly refused: “He has committed no crime; here, he is a free man.”

I was not a strong secondary school student in Bremen, but I remember learning that after World War II, the Americans insisted on a trial for war criminals at Nuremberg, and that event helped turn Germany into a democratic country.Strange, I thought, as I stood on the tarmac watching the Germans teach the Americans a basic lesson about the rule of law. [my emphasis]

Gitmo has come to embody many things in this country over the last decade: Bush’s incompetence and criminality, our bigotry and inhumanity, and–as most would like to treat it now–a big political tussle between Obama and Republicans.

But at every turn–from the Bush Administration grasping claiming the piece of land existed outside the rule of law, to the corrupt legal process that created memos authorizing torture there, to Jim Haynes’ insistence that “we can’t have acquittals,” to the DC Circuit’s continued efforts to make sure detainees get no meaningful review of their detention–Gitmo has been about shedding the rule of law. It has been about finding ways for America to defy the law even while maintaining the pretense we still uphold it.

In this country, we have mostly ignored that lesson of Gitmo (not liking what it says about us, I guess). But it’s a lesson our former captives know well.

The Beat from Hell: Carol Rosenberg’s Decade Covering Gitmo

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For the record, Carol Rosenberg has been covering Gitmo for more than the decade that has elapsed since she arrived there on January 9, 2002 to cover the impending arrival of the first war on terror detainees. She filed this story on March 22, 1999 and another a month later for the Charlotte Observer, when she covered the de-mining of the island.

This is “Gitmo,” 45 square miles of U.S.-controlled territory stranded in a time warp and shrinking in resources in the post-Cold War era. Two years ago, it had 6,000 residents, both military and civilian; it will have half that later this year.

Formally called the U.S. Naval Station at Guantanamo Bay, this hemisphere’s last outpost against Communism also is a curious island of Americana on the eastern end of Cuba.

[snip]

Since [Base Commander Larry] Larson arrived two years ago from the Naval War College, the former test pilot has presided over a campaign of cutbacks and downsizing – in keeping with a military-wide austerity kick caused by the collapse of the Iron Curtain.

When he arrived, about 6,000 people – both civilian and military – lived and worked out of some 1,890 buildings, ranging from World War II vintage pump houses to bachelors’ quarters. Their budget was $41 million.

By October 1999, he plans to operate only out of 900 buildings, to cut the budget to $24 million and the population to about 2,500.

But it was 10 years ago today when Rosenberg first started covering the base’s use as a prison for alleged terrorists. As I’ve heard others who have made the trip explain, Rosenberg is now the institutional memory of the place, often describing what a space was used for years before DOD’s current press minders ever showed up. Or, as she described in a National Press Club speech last year, what the rules used to be for journalists and attorneys.

It’s a place the Pentagon likes to call the most transparent detention center on Earth. Hundreds of reporters have visited there, they say, since the first al Qaida suspects arrived eight years ago.

They skip the part about how few go back more than once — stymied by the sheer frustration at the rules, the hoops, the time, and the costs of doing basic journalism. Being a court reporter. Writing a feature story. Conducting an interview.

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Karzai and US Fight over Who Gets to Run the Abusive Prisons

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As I noted, President Obama reacted to the NDAA’s requirement that DOD actually review detainees’ cases to figure out if they should be held by claiming the authority to make our prison at Bagram largely exempt from the law.

At one level, having us hold detainees keeps them out of the Afghan prisons, where they’ll be tortured. But of course, the Afghans have at least managed to do what we claim to be unable to do–give these men trials.

Now, Karzai is upping the ante: demanding that the US turn over Bagram and its 3,000+ detainees next month.

Afghan President Hamid Karzai ordered the transfer of the U.S.-run Bagram prison to his government’s control within a month, citing human rights violations.

Karzai decided the transfer should be made after hearing a report on the prison from the Constitutional Oversight Commission that “details many cases of violations of the Afghan Constitution and other applicable laws of the country, the relevant international conventions and human rights,” the president’s office said yesterday in a statement.

And in response to Karzai’s claims of abuses (which appear to be about nudity), State Department’s spokesperson and former Cheney hack Victoria Nuland basically said the same thing the Bush Administration always said: Geneva comply blah blah blah.

QUESTION: And what about his charges that – violation of human rights in these prisons?

MS. NULAND: Well, you know that we take seriously any charges or allegations of detainee abuse. We respect the rights of detainees who are in facilities that the United States manages, and we ensure that all detainees in U.S. custody are treated in accordance with international legal obligations, including Geneva Common Article III. Any specific allegations of detainee abuse are investigated fully by the Department of Defense and by ISAF.

Coming from Nuland, such reassurances are little comfort.

But then, this is basically a pissing contest over who can run abusive prisons, so it’s not comforting in any case.

The Worst Part of the Signing Statement: Section 1024

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As I explained here, Obama’s signing statement on the defense authorization was about what I expected. He included squishy language so as to pretend he doesn’t fully support indefinite detention. And he basically promised to ignore much of the language on presumptive military detention.

But there was one part of the signing statement I (naively) didn’t expect. It’s this:

Sections 1023-1025 needlessly interfere with the executive branch’s processes for reviewing the status of detainees. Going forward, consistent with congressional intent as detailed in the Conference Report, my Administration will interpret section 1024 as granting the Secretary of Defense broad discretion to determine what detainee status determinations in Afghanistan are subject to the requirements of this section. [my emphasis]

Section 1024, remember, requires the Defense Department to actually establish the provisions for status reviews that Obama has promised but not entirely delivered.

SEC. 1024. PROCEDURES FOR STATUS DETERMINATIONS.

(a) IN GENERAL.—Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the appropriate committees of Congress a report setting forth the procedures for determining the status of persons detained pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) for purposes of section 1021.

(b) ELEMENTS OF PROCEDURES.—The procedures required by this section shall provide for the following in the case of any unprivileged enemy belligerent who will be held in long-term detention under the law of war pursuant to the Authorization for Use of Military Force:

(1) A military judge shall preside at proceedings for the determination of status of an unprivileged enemy belligerent.

(2) An unprivileged enemy belligerent may, at the election of the belligerent, be represented by military counsel at proceedings for the determination of status of the belligerent.

(c) APPLICABILITY.—The Secretary of Defense is not required to apply the procedures required by this section in the case of a person for whom habeas corpus review is available in a Federal court.

As I’ve noted, Lindsey Graham (and other bill supporters, both the right and left of Lindsey) repeatedly insisted on this review provision. Lindsey promised every detainee would get real review of his status.

I want to be able to tell anybody who is interested that no person in an American prison–civilian or military–held as a suspected member of al-Qaida will be held without independent judicial review. We are not allowing the executive branch to make that decision unchecked. For the first time in the history of American warfare, every American combatant held by the executive branch will have their day in Federal court, and the government has to prove by a preponderance of the evidence you are in fact part of the enemy force. [my emphasis]

And yet, in spite of the fact that Section 1024 includes no exception for those detained at Bagram, Obama just invented such an exception.

Section 1024 was one of the few good parts of the detainee provisions in this bill, because it would have finally expanded the due process available to the thousands of detainees who are hidden away at Bagram now with no meaningful review.

But Obama just made that good part disappear.

Update: I’m still trying to figure out where Obama gets the Congressional intent to let the Defense Secretary pick and choose which detainees 1024 applies to. The managers’ statement says this about 1024:

The Senate amendment contained a provision (sec. 1036) that would require the Secretary of Defense to establish procedures for determining the status of persons captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107-40), including access to a military judge and a military lawyer for an enemy belligerent who will be held in long-term detention.

The House bill contained no similar provision.

The House recedes with an amendment clarifying that the Secretary of Defense is not required to apply the procedures for long-term detention in the case of a person for whom habeas corpus review is available in federal court.

Because this provision is prospective, the Secretary of Defense is authorized to determine the extent, if any, to which such procedures will be applied to detainees for whom status determinations have already been made prior to the date of the enactment of this Act.

The conferees expect that the procedures issued by the Secretary of Defense will define what constitutes “long-term” detention for the purposes of subsection (b). The conferees understand that under current Department of Defense practice in Afghanistan, a detainee goes before a Detention Review Board for a status determination 60 days after capture, and again 6 months after that. The Department of Defense has considered extending the period of time before a second review is required. The conferees expect that the procedures required by subsection (b) would not be triggered by the first review, but could be triggered by the second review, in the discretion of the Secretary. [my emphasis]

This seems to be saying two things. First, DOD doesn’t have to go back and grant everyone they’ve given the inadequate review process currently in place a new review. The 3,000 detainees already in Bagram are just SOL.

In addition, this says DOD gets to decide how long new detainees will have to wait before they get a status review with an actual lawyer–and Congress is perfectly happy making them wait over six months before that time.

Obama seems to have taken that language and pushed it further still: stating that DOD will get broad discretion to decide which reviews will carry the requirement of a judge and a lawyer.

It sort of makes you wonder why the Obama Administration wants these men to be held for over six months with no meaningful review?

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 →

The Holiday Friday Document Dump Signing Statement

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The Administration has, as expected, buried its signing statement for the Defense Authorization in a holiday Friday document dump.

Correction: As DDay corrects me, this is not yet the NDAA signing statement, which is still coming.

I’m actually fascinated by the way they’ve suggested that they consider some of the detainee provisions to violate separation of powers. They couch their objections in language explicitly referring to the restrictions on transferring Gitmo detainees. They then say there are other “similar” provisions to which they also object. But they don’t name those provisions!

I have previously announced that it is the policy of my Administration, and in the interests of promoting transparency in Government, to indicate when a bill presented for Presidential signature includes provisions that are subject to well-founded constitutional objections. The Department of Justice has advised that a small number of provisions of H.R. 2055 raise constitutional concerns.

In this bill, the Congress has once again included provisions that would bar the use of appropriated funds for transfers of Guantanamo detainees into the United States (section 8119 of Division A), as well as transfers to the custody or effective control of foreign countries unless specified conditions are met (section 8120 of Division A). These provisions are similar to others found in the National Defense Authorization Act for Fiscal Year 2012. My Administration has repeatedly communicated my objections to these provisions, including my view that they could, under certain circumstances, violate constitutional separation of powers principles. In approving this bill, I reiterate the objections my Administration has raised regarding these provisions, my intent to interpret and apply them in a manner that avoids constitutional conflicts, and the promise that my Administration will continue to work towards their repeal. [my emphasis]

Now, in its veto threat capitulation, the Administration emphasized the uncertainty the bill (now law) presents for counterterrorism professionals.

While we remain concerned about the uncertainty that this law will create for our counterterrorism professionals, the most recent changes give the President additional discretion in determining how the law will be implemented, consistent with our values and the rule of law, which are at the heart of our country’s strength.

[snip]

As a result of these changes, we have concluded that the language does not challenge or constrain the President’s ability to collect intelligence, incapacitate dangerous terrorists, and protect the American people, and the President’s senior advisors will not recommend a veto.  However, if in the process of implementing this law we determine that it will negatively impact our counterterrorism professionals and undercut our commitment to the rule of law, we expect that the authors of these provisions will work quickly and tirelessly to correct these problems.

And frankly, I think the Administration is absolutely right to be concerned about the way these provisions–particularly, the presumptive military detention for some alleged terrorists–will screw up FBI’s efforts to investigate and capture terrorists.

But rather than explicitly focusing on this problem in the signing statement in the same way they did in the veto threat withdrawal, they simply invoke provisions similar to the Gitmo transfer restrictions, without naming them.

Not only is this a missed opportunity to make a strong defense of our civilian counterterrorism efforts–which have been far more successful than military commissions. But it leaves open the possibility that the Administration’s biggest objection isn’t about presumptive military detention but other limits on executive power.

It is par for the course for the Administration to keep secret which provisions it intends to “apply in a manner that avoids constitutional conflicts” even while celebrating its own “transparency.”