King George III Rules Again in the Good Old U.S.A.

The American colonies fought the Revolutionary War to get out from under the tyrannical rule of King George III. Given the powers of assassination and indefinite detention either given by Congress or assumed by President Barack Obama, we seem to have placed our precious liberties under a modern King George III.

I did a previous blog on indefinite detention but the treatment accorded by Glenn Greenwald in the December 16, 2011 issue of Salon is so excellent, I decided to give it whatever additional circulation I can.

Greenwald compares the 2001 Authorization to Use Military Force (AUMF) with the indefinite detention provisions found in the 2012 National Defense Authorization Act (NDAA). He says that both President Bush and President Obama have argued that the AUMF conferred implicit power to detain indefinitely and the courts have generally accepted this very broad definition of the AUMF. Greenwald says: “That’s how the Obama administration justifies its ongoing bombing of Yemen and Somalia and its killing of people based on the claims that they support groups that did not exist at the time of 9/11.”

Greenwald draws a clear distinction between the AUMF and the NDAA: The AUMF specifically confined the president to use force against those who 1) helped perpetuate the 9/11 attacks; or 2) harbored the perpetrators. In contrast, the NDAA expanded the above power to include anyone who “substantially supports” such groups and/or “associated forces.” In addition, the NDAA codified indefinite detention to, as the New York Times editorially said that the bill contains “terrible new measures that will make indefinite detention and military trials a permanent part of American law.”

Glenn Greenwald examines the question of whether U.S. citizens can be indefinitely detained and he comes to a troubling conclusion. Section 1021 says: “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 on the face of it, this section appears to apply only to U.S. citizens captured anywhere abroad.

Section 1022 says that anyone who is “a member of, or part of, al-Qaeda or associated forces” and “participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners” must be held (absent a presidential waiver) “in military custody pending disposition under the law.” Section 1022 thus does not say that the requirement of military detention does not apply to U.S. citizens but it does not exclude U.S. citizens from the authority or the option to hold them in military custody. Thus, Greenwald concludes,  for foreign nationals accused of being members of Al Qaeda, military detention is mandatory; for U.S. citizens it is optional.

President Obama had vowed to veto the NDAA if it contained the indefinite detention provisions written in the Senate Armed Services Committee. He decided to sign it because it had been sufficiently revised to remove his objections. Significantly, no mention was made of what changes were being referred to by Obama. The two major attempts to revise the bill were to strip the indefinite detention language from the bill and Senator Feinstein’s attempt to make crystal clear that the bill did not apply to U.S. citizens were both resoundingly defeated. Therefore, what seems to be crystal clear is that President Obama caved on yet another promise he had made.

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