Flashback: There’s No Such Thing as an “Indefinite Detention Bill”

Update: I cant believe this one has lasted so long. Thankfully, they've stopped calling it the "Indefinite detention bill," but the same people still swear up and down that the NDAA allows for indefinite detention, which is patently false. It's been well over a year; you'd think they'd have read the section by now. Yet, just in the past week, I've been told about the NDAA many times, and how it will lead to Obama rounding up everyone and throwing them all in jail, or something equally dire. That's ridiculous. 

I wrote this in December 2011, and I checked everything, and it's still valid now. There are minor language changes, but the substance and the underlying facts are unchanged. 

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One of the most galling aspects of the professional left is their penchant for lying to make a point they think you'll buy. As a progressive, there is no need to lie to those who read your stuff. As this blog notes time and time again, the truth has a liberal bias; Fox News needs to lie; we do not.

Case in point; the hysteria over what many pro and emo lefties refer to as the “Indefinite Detention Bill.” Even people I often admire are buying into the hysteria, and it’s become depressing.

First thing you should know is, there is NO SUCH THING as an “Indefinite Detention Bill.” The actual bill Obama first threatened to veto and has now agreed to sign is called the “National Defense Authorization Act (NDAA) for Fiscal Year 2012.” The part about the “indefinite detention” is actually one small portion of a very large bill. 

Yet, who the hell do these "liberals" go after? Not those who put that crap into the bill in the first place, of course. No, they go after President Obama, who has command of the military (which includes my son, who’s working hard trying to rebuild Afghanistan, by the way) and have little choice but to put up with such amendments. How did so many progressive really learn NOTHING from the 2010 elections?


Obama doesn't have a line-item veto, so he can’t veto the “Indefinite Detention Bill” without vetoing the entire NDAA. Now, you may think that would be a good thing, but would it? It’s not just about the troops. What about all of those civilians who might lose their jobs for at least a month or two, while Obama and Congress, including teabaggers, who have declared that defeating Obama is their main goal, worked out a new NDAA without that little amendment, assuming they could do so? What do you think canceling all those defense contracts for a month or two would do to the unemployment rate? What if it lasted six months? What would happen to those small towns that depend on the military bases and contractors to support their small businesses? Do you imagine the GOP might be a bit energized after the unemployment rate suddenly rises to 10% and it's all blamed on the Obama veto?

Those of you who claim “principle” when you discuss this need to stop. Many pros and emos claim Obama’s showing a “lack of principle” by signing this “Indefinite Detention Bill.” Forget the fact that you lack principle if you're lying to the public about a bill that doesn't exist. You’re actually advocating for an action that could put millions of people out of work for a few months, and forcing our troops to lose their meager pay for a few months for… what, exactly? What are your “principles” when you advocate for that, in order to kill an amendment that will probably ultimately have zero effect on anyone, and might even die in the courts?

I don’t like this amendment any more than you do. But you know what? If he vetoes this bill to kill that amendment, and then causes the Republicans to win in 2012, they’re just going to pass the same bill, and allow President Gingrich/Romney/Perry to detain people at will, anyway, right?

See, this is how politics works, pro and emo lefties; elections have consequences. When our side trashed Obama and the Democrats mercilessly in 2009-10, we helped right wing Republicans win. Hell; after the 2010 election, pro and emo "progressives" were CROWING about having defeated “Blue Dog” Democrats, thus giving teabaggers most of those seats, giving the Speaker’s chair to a Boner, and handing committee chairs to right wingers, who replaced the progressives that had been chairing those committees. Look, folks; when you help right wingers get elected, you don’t get to act shocked and sadden when they do exactly what they promised to do.

It’s not Obama’s fault he doesn’t have a line-item veto. The only way to veto this thing is to kill the entire bill. With Congress recessing today for about a month, that means the entire DOD and its contractors could go unfunded until late January or early February, if a deal could be worked out. That means a lot of contractors would have to fold up shop in the meantime. It could put some out of business altogether, but it could also mean millions out of work for at least a month or two. What about military people and contractors who are facing foreclosure; what would this do to them? It’s possible Congress might pass an emergency appropriation to cover this problem, but given the influence of the teabaggers, who in their right mind would count on something like that? In one year, they’ve damn near pushed through four government shutdowns.

If you think you're adhering to "principle" by demanding Obama veto this thing, I'm afraid you don't understand the concept of "principle" very well. Each individual "principle" doesn't work in a vacuum; they all work together. This reminds me of those idiots who wanted to kill the entire health care bill because it didn't include a "public option." To deny 30 million people health insurance, and force those with insurance to continue to endure the restrictions on coverage, just because you didn't get what you wanted is not "principled." It's the opposite. 

The “Indefinite Detention Bill” will only potentially have a negative effect if a Republican wins in 2012, in any case. Obama probably won't use it, except maybe to trigger a court challenge, which this amendment will probably fail, anyway. The Hamdan case alone would seem to indicate the president cannot have such power over US citizens, at least.

Here’s the language in section 1021 that has the pro lefties up in arms. It’s in the Conference Report. Follow along, please. Oddly (?), most pro left cite (1), but leave out (2)-(4). I know, that just seems so odd, doesn’t it?

(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.

Yes, I do admit section c) looks troubling, especially if you look at it all by itself. As long as we have Obama (or Biden) in office, we have time to get rid of it, especially if we give them a Democratic Congress. But note that the pro lefties also leave out sections b) d) and e). When you read them you’ll know why.

(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 forces.

         (…)

(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 States.

Oops.

Yes, you read that right. The so-called  – the “Indefinite Detention Bill” that some lefties are trying to convince you will give the president the power to round us all up and detain us forever without a trial, not only doesn’t exist on its own, but the language is somewhat limiting, and specifically excludes US citizens or people who are in the United States legally. Section b) 2) does bother me, but I don’t think it’ll survive a court challenge because it’s too broad. What the hell is a “belligerent act,” for example? I once called a US Senator an asshole to his face; that was kind of belligerent. 

I will note, for the record, that the provision does fly in the face of the 14th Amendment, and I don't like it. But I don't see anything in it that isn't reversible, and certainly nothing that's worth putting hundreds of thousands of people out of work for, just as we're recovering from the worst recession in 80 years. 

AND I BLAME CONGRESS FOR THIS, NOT OBAMA. They put it there, not him. In fact, if Democrats were still in charge, this entire discussion probably wouldn't be happening. Blaming this on Obama is kind of like blaming the company who put the olives in the jar because you didn't chew your olive responsibly. Just saying. 

In order to kill the above provisions, Obama has to kill the entire bill. That would be a politically stupid thing to do, and anyone with any common sense would understand that. The best way to handle this is to keep this provision in mind, give Obama a second term, and give him a Congress that will pass a repeal that he can sign. There you go; problem solved.

I’ll end this with a short critique of our “friend” Glenn Greenwald’s Salon post entitled “Three myths about the detention bill.” In it, he lies like a rug. Here are the most blatant lies:

Lie #1. There is no such thing as an “Indefinite Detention Bill”. To imply there is means you’re also implying that Obama can veto such a thing without killing the entire NDAA. He can't.

Lie #2. Obama did not announce his intention to sign the “Indefinite Detention Bill” and for Greenwald to claim it’s “embedded” in the 2012 NDAA is an obfuscation, if not an outright falsehood, because it implies a possibility for him to veto just that “bill.”

Lie #3. “Until the end of the hostilities” does not necessarily mean “indefinite detention.” It’s entirely possible, even likely, that Obama will declare an end to al Qaeda within the next year, and he has already all but declared an end to hostilities against the Taliban. In fact, if we oversee an election of Democrats in 2012, and they declare both “wars” at an end, guess what happens? 

(Note; that does not mean I want this part of the bill to survive. I want to see it repealed, which will happen if assholes like Greenwald start going after the perpetrators of this nonsense, and stop attacking Obama and Democrats incessantly. I’m just saying, there are other ways around it, and to declare such a thing as essentially “true” is a lie.)

Lie #4. As you can see when you read both d) and e) in section 1021 above, the “bill” explicitly does NOT expand the scope of the AUMF.

Lie #5. The “bill” DOES explicitly exempt US citizens from its provisions. Strangely, Greenwald cites Section 1022 as proving his point. Here’s the language:

(b) APPLICABILITY TO UNITED STATES CITIZENS AND LAWFUL RESIDENT ALIENS.—

(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.

Strangely, Greenwald highlights certain sections of this in his article, and then inexplicably says the following (bold in original):

The only provision from which U.S. citizens are exempted here is the“requirement” of military detention. For foreign nationals accused of being members of Al Qaeda, military detention is mandatory; for U.S. citizens, it is optionalThis section does not exempt U.S citizens from the presidential power of military detention: only from the requirement of military detention.

Except for one problem; Section 1021, which explicitly forbids detention of US citizens and resident aliens. He’s counting on us all reading each separate section as if it operates on its own, which is not the case.

Look, folks, I don’t like this section of the bill much more than Greenwald does. On its face, it’s odious, especially if Obama is replaced by anyone in the current Republican field. The problem is, it's the misrepresentation by professional lefties like Glenn Greenwald that actually helps make the possibility of a Republican president and a Republican Senate more likely, not less. If you really want crap like this amendment repealed, you’ll need a Democratic House and Senate and a Democratic president. You’ll also need a Supreme Court appointed and approved by Democrats, because an entire court full of Scalia/Thomas/Alito clones will happily give a Republican president this power.

The only thing I ask of any actual progressive is that they tell the truth, and place blame where it belongs.

Obama didn’t place this odious amendment into the bill; Republicans did. Even if they didn't place the exact language into the bill, they created the impetus for including crap like this in an irrelevant bill in the first place. Go after them!

Stop lying, and go after those who are actually responsible. For a change. 

87 comments

  1. I have nothing more to say about this than the fact that law confuses you. “The requirement does not extend” may as well say “but the option exists.” It is shady wording. It does not explicitly say “Hey, let’s detain Americans. We can, we will, and we have the right to.” That would be unconstitutional. That could be struck down by the Supreme Court, almost unanimously. But the shady language is what bothers many people about this bill. Heck, even Obama had serious reservations on those sections. Which means, unless you’re saying Obama is a liar, that there is something to be troubled about. Is a signing statement line “the indefinite detention of American citizens is prohibited” too much to ask for?
    If you’re emotionally attached to defending this article, be my guest. If you wrote this out of logic, as someone that HAS read the full text of the bill, I can point you to several places that may show you different. Including the Library of Congress’s THOMAS system. And a report of two four-star generals that condemn the bill, and show that a veto would not cut spending to the military.
    There are shreds of truth in this article. But there needs to be more.

  2. I think we can boil down this and many other matters to the following: Many pro- and emo-lefties object that President Obama is neither a benevolent dictator nor a veto-happy extortionist. They want the former, but retreat to demanding the latter. The idea of popular rule eludes them.

  3. It was not a ‘complaint’, but an explanation of how his article could be more effective, because it tells the truth, and people need to listen, but they won’t listen to someone who calls them hysterial emo liars. This is why I felt the need to post, to offer advice on how spread the message, not through some personal offense that he wasn’t ‘nice’, and that should have been clear when my post said that I read the whole article despite my reservations.
    Thank you for the link.

  4. If you’re looking for an actual analysis of what the NDAA sections say, go here: http://www.lawfareblog.com/2011/12/ndaa-faq-a-guide-for-the-perplexed/
    Now, you can complain about the tone, but let me explain something for you. Glenn lies and distorts. Constantly, unremittingly, and blatantly. It’s almost a cottage industry these days among various progressive blogs to go through his latest screeds and point that out. His reaction is always the same, he (and his minions) attack by calling the person pointing it out a liar, corrupt, a lackey, etc. After a few times through the mill, anyone who has called him out on it is not going to be “nice” anymore.

  5. FRIDAY, DEC 16, 2011, SENATORS INTRODUCED “DUE PROCESS GUARANTEE ACT OF 2011” IN RESPONSE TO NDAA “INDEFINITE CITIZEN IMPRISONMENT LAW”
    SENATORS UDALL AND FEINSTEIN SEE THE PROBLEM, BECAUSE THERE IS AN UNCONSTITUTIONAL PROBLEM!!!!!!
    CONSTITUTIONAL LAWYER POTUS SHOULD KNOW!
    BUT HE WANTS PREVENTATIVE PROLONGED DETENTION… BUILDING HIS LEGAL REGIME [TOTALITARIANISM]

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