Editor: Yes, President Obama signed the notorious National Defense Authorization Act on New Year’s Eve day. Happy New Year everyone! And as promised, the White House released his “Signing Statement” on the bill, which we repost in its entirety (see especially the sections in bold – our emphasis):
From the White House
Statement by the President on H.R. 1540
Today I have signed into law H.R. 1540, the “National Defense Authorization Act for Fiscal Year 2012.” I have signed the Act chiefly because it authorizes funding for the defense of the United States and its interests abroad, crucial services for service members and their families, and vital national security programs that must be renewed. In hundreds of separate sections totaling over 500 pages, the Act also contains critical Administration initiatives to control the spiraling health care costs of the Department of Defense (DoD), to develop counterterrorism initiatives abroad, to build the security capacity of key partners, to modernize the force, and to boost the efficiency and effectiveness of military operations worldwide.
The fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists. 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. 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. 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. 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. 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 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.
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.
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. 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.
My Administration will design the implementation procedures authorized by section 1022(c) to provide the maximum measure of flexibility and clarity to our counterterrorism professionals permissible under law. And I will exercise all of my constitutional authorities as Chief Executive and Commander in Chief if those procedures fall short, including but not limited to seeking the revision or repeal of provisions should they prove to be unworkable.
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.
Sections 1026-1028 continue unwise funding restrictions that curtail options available to the executive branch. Section 1027 renews the bar against using appropriated funds for fiscal year 2012 to transfer Guantanamo detainees into the United States for any purpose. I continue to oppose this provision, which intrudes upon critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests. For decades, Republican and Democratic administrations have successfully prosecuted hundreds of terrorists in Federal court. Those prosecutions are a legitimate, effective, and powerful tool in our efforts to protect the Nation. Removing that tool from the executive branch does not serve our national security. Moreover, this intrusion would, under certain circumstances, violate constitutional separation of powers principles.
Section 1028 modifies but fundamentally maintains unwarranted restrictions on the executive branch’s authority to transfer detainees to a foreign country. This hinders the executive’s ability to carry out its military, national security, and foreign relations activities and like section 1027, would, under certain circumstances, violate constitutional separation of powers principles. The executive branch must have the flexibility to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers. In the event that the statutory restrictions in sections 1027 and 1028 operate in a manner that violates constitutional separation of powers principles, my Administration will interpret them to avoid the constitutional conflict.
Section 1029 requires that the Attorney General consult with the Director of National Intelligence and Secretary of Defense prior to filing criminal charges against or seeking an indictment of certain individuals. I sign this based on the understanding that apart from detainees held by the military outside of the United States under the 2001 Authorization for Use of Military Force, the provision applies only to those individuals who have been determined to be covered persons under section 1022 before the Justice Department files charges or seeks an indictment. Notwithstanding that limitation, this provision represents an intrusion into the functions and prerogatives of the Department of Justice and offends the longstanding legal tradition that decisions regarding criminal prosecutions should be vested with the Attorney General free from outside interference. Moreover, section 1029 could impede flexibility and hinder exigent operational judgments in a manner that damages our security. My Administration will interpret and implement section 1029 in a manner that preserves the operational flexibility of our counterterrorism and law enforcement professionals, limits delays in the investigative process, ensures that critical executive branch functions are not inhibited, and preserves the integrity and independence of the Department of Justice.
Other provisions in this bill above could interfere with my constitutional foreign affairs powers. Section 1244 requires the President to submit a report to the Congress 60 days prior to sharing any U.S. classified ballistic missile defense information with Russia. Section 1244 further specifies that this report include a detailed description of the classified information to be provided. While my Administration intends to keep the Congress fully informed of the status of U.S. efforts to cooperate with the Russian Federation on ballistic missile defense, my Administration will also interpret and implement section 1244 in a manner that does not interfere with the President’s constitutional authority to conduct foreign affairs and avoids the undue disclosure of sensitive diplomatic communications. Other sections pose similar problems. Sections 1231, 1240, 1241, and 1242 could be read to require the disclosure of sensitive diplomatic communications and national security secrets; and sections 1235, 1242, and 1245 would interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with foreign governments. Like section 1244, should any application of these provisions conflict with my constitutional authorities, I will treat the provisions as non-binding.
My Administration has worked tirelessly to reform or remove the provisions described above in order to facilitate the enactment of this vital legislation, but certain provisions remain concerning. My Administration will aggressively seek to mitigate those concerns through the design of implementation procedures and other authorities available to me as Chief Executive and Commander in Chief, will oppose any attempt to extend or expand them in the future, and will seek the repeal of any provisions that undermine the policies and values that have guided my Administration throughout my time in office.
BARACK OBAMA
THE WHITE HOUSE,
December 31, 2011.
{ 34 comments… read them below or add one }
How can you be a constitutional attorney and sign this bill?
This is truly frightening. And if we do nothing, if we sit and think this doesn’t affect us, we need to think again, to become informed. Any time even one American’s civil rights are ignored in our own country, then we are all affected, we are all in danger of losing our civil rights. I’m not generally a reactive person, but this is truly beginning to frighten me. If this is law, who’s to say what the next President will do, whom he or she will deem an enemy of our country.
I voted for this man. I trusted him. Even after his impotent first term, I believed he at least had fairly good intentions.
This is WRONG. As far as I’m concerned, Barack Obama – along with every Representative and Senator who signed this – is a traitor the people he supposedly represents.
What a bastard. This sickens me.
Couldn’t agree more. I advertised him to all my friends and family to vote in first term. No more. There is nothing worse than back stabbing, not matter how you justify it. I hated Bush policies, but sometimes a dictator (Bush) who sticks his gun seems better than a sweet talker who compromises (Obama). Such a waste of hopes and change.
There’s still a chance to fix this!
You can help eliminate indefinite detention and restore due process for US citizens by contacting your representatives and urging them to support the bill H.R.3676.
H.R.3676 is a one page bill that in clear, unambiguous language amends the detainee provisions of the National Defense Authorization Act for Fiscal Year 2012 to specifically state that United States citizens may not be detained against their will without all the rights of due process afforded to citizens in a court ordained or established by or under Article III of the Constitution of the United States. http://www.opencongress.org/bill/112-h3676/show
I can’t get mine to send, the stars keep swirling but it won’t send it.
I’m not sure he had much of a choice but to sign the thing and issue the signing statement with it. Had he not signed it, funding for continuing military operations–like them or not–would dry up, leaving our troops currently overseas extremely vulnerable, which is not a good thing any way you look at it. And given the tenor of this congress and the Republicans’ staunch and unyielding unwillingness to work with this president or the Democrats, the chances of negotiating a more acceptable bill were exactly zero. The scary thing is that while this president has insisted that he’ll ignore certain parts of the bill, should it remain in place there is no guarantee that the next guy will do the same.
The best we can hope for at this point is for Congress to once again swing to the Democrats, for Obama to be re-elected, and then work on undoing this abomination. For now, though, Obama was stuck trying to make the best of an impossible situation.
Not true Andy. This bill had nothing to do with funding our military on a daily basis. That was already taken of in the military appropriations bill. But I agree with ya on your other point: “there is no guarantee that the next guy will do the same.”
“National Defense Authorization Act.”
Obama Expresses “Reservations,” But Signs Controversial Defense Bill.
The fact is that in the administration’s estimation they couldn’t afford not to sign it and risk not being able to fund those programs mentioned in the quote above. Further, like any other bill, this one contained a bunch of additional bullshit that we don’t like–and presumably he doesn’t either–but they decided that it would be a complete waste of time to fight about it with this ridiculous Congress. It wouldn’t get anyone anywhere, and it would be just one more futile exercise that only served to prove how extreme and unreasonable the Republicans in Congress are. We just have to hope that in November we can send a bunch of Democrats back to Congress and get rid of all of this garbage.
I’m fairly certain that the administration requested the language in the bill. The original, bipartisan bill did not include the controversial provision. The original bill passed 93-7. The President threatened to veto it. It was reworded so that it could pass.
If that’s the case, then why did he take the unusual step (for him) of issuing such an extensive signing statement saying in effect that he’s essentially going to ignore certain parts of the bill? ‘W’ issued signing statements like they were going out of style, putting hundreds of them out. This president, not so much. In fact, he’s said he does not like the use of signing statements, having only issued 19 during the course of his presidency. Yet he felt compelled to issue one here.
Here’s a good breakdown on the the president’s signing statement, and the controversy surrounding it: Reality Check: Breaking Down Obama’s NDAA Signing Statement
Probably in an attempt to deflect some of the criticism from his base. Here’s a statement from Carl Levin on the Senate floor:
“The language which precluded the application of Section 1031 to American citizens was in the bill that we originally approved…and the administration asked us to remove the language which says that U.S. citizens and lawful residents would not be subject to this section,” said Levin, Chairman of the Armed Services Committee.
“It was the administration that asked us to remove the very language which we had in the bill which passed the committee…we removed it at the request of the administration,” said Levin, emphasizing, “It was the administration which asked us to remove the very language the absence of which is now objected to.”
It’s possible that the Awlaki thing may have had something to do with it. There are plenty (including Ron Paul) who insist that his killing was an illegal and criminal act given that he was a U.S. citizen. So even in retrospect it could have caused problems for the administration, despite the fact that getting him dead or alive was the right thing to do.
The right thing to do?
Assassination is not justice. It is itself a crime. How would you like it if the government of Bolivia sent an agent to your house and shot you dead, claiming you matched the decription of somebody who gave money and encouragement to a murder suspect in their country, and saying they didn’t want to bother with giving you a fair trial, an actual arrest, the right to contest extradition — none of that.
Your faith in the Democrat Party may be misplaced.
Welcome to the United States of Nazi Germany.
Obama claims he and his administration will not enact indefinite detention with no trial. Obama has said many things which he did completely the opposite of.
Even if Obama holds this as true, he has still done an extremely dangerous act to the American People, because although he says he will interpret one way, future presidents are free to interpret it as they wish.
This new law is wide open for abuse.
Where are the liberals now that their freedoms have been taken by the communist in office.
Perry, liberals historically have joined with socialists and communists to fight fascism. Remember World War II? Obama is a fascist, not a communist, and not a liberal. He is backed by major Wall Street corporate capitalists. He is not trying to nationalize the banks and factories, etc. He is not doing anything even mildly socialist, let alone communist.
Liberals need to get the hell out of the Wall Street Democratic Party and form a new coalition with the relatively small number of people farther to the left and with the millions of “independents” alienated from both corrupt major parties. The libertarians in the Wall Street Republican Party, along with true conservatives who believe a constitutional democracy is worth fighting to protect against a corporate fascist dictatorship, should also work to form this same new coalition.
What are you yourself thinking of doing? Careful what you say. I’m not trying to get you detained without charge or trial.
To call Obama a “fascist” at this stage of the game is an overstretch. It’s way more complicated than that. And it disarms us with a false scenario.
Is it? In 1923 Mussolini described his new regime as “Corporatism” – later in the decade it became known as fascism. Few in America today doubt corporate control and dominance of our society; it’s culture, it’s political institutions. What benefits there are accrue to the few in the oligarchy at the expense of the many. Call it “friendly fascism”, “liberal fascism”, it’s still fascism. Obama defends his action behind George W. Bush’s policies and a GOP Supreme Court. Interesting rationalizations. We shall see, but in history I fear Obama may be America’s Paul von Hindenberg. Between NDAA and SOPA there’s little room to move.
A common mistake in our culture is to think that everything the fascists did while they were in power (in the 1920’s, 30’s, and 40’s in Italy and Germany, and much longer in Spain and Portugal, and later in many parts of the Third World), was BAD, and to therefore conclude that the emerging form of fascism here in the USA today just cannot possibly actually BE fascism. Don’t we continue to see good legislation? good changes? How, therefore can the USA be called fascist?
Mussolini did make the trains run on time. Hitler did build freeways. We could go on about socially valuable things fascist parties in power accomplished. Likewise, we can point to some good things that the Democrats and Republicans have enacted. We could cite things such as Bush II enacting paid prescriptions under MediCare or Obama enacting a ban on health insurance companies refusing to cover people with pre-existing conditions. Focusing on these good things is a distraction, however, from a serious discussion of what constitutes fascism, which Mussolini did define as the unification of the capitalist corporations and the state. Fascist society is run like a corporation: no freedom of assembly, of speech, no legal due process, no democracy.
That is NOT complicated. Obama is a fascist. MOST of the elected Democrats and Republicans in both houses of Congress have been voting for fascist laws, including the new ones in the 2012 NDAA, and they have been doing it for years. The Patriot Act was not the first time. Does that mean that most of the millions of registered Democrats and registered Republicans are fascists? No. Most have never even read these laws. Elected politicians who are indebted to major corporate campaign donations, and who vote for fascist laws to keep their patrons happy, are a breed apart from the rest of us.
Now, with the Supreme Court’s decision on Citizens United, the free flow of corporate money into BUYING elections, combined with the NDAA and all the other fascist laws, we are crossing into uncharted fascist territory. The world has never known a fascist country with the military and surveillance resources that the USA now has. No fascist country in history has ever had nuclear weapons.
Our response should not be fear. Our response should be to drastically change our perspectives and our priorities and organize alternatives: alternative political parties, alternative forms of labor organizations, alternative media, alternative community associations. The Occupy movement is making big strides in this direction. One thing we can all do is increase our participation in the decision making and thought processes of the Occupy movement. We need to build a new coalition capable of winning power and dethroning the banksters, robber barons, and their paid-for politicians. It is time for a mass exodus out of the Wall Street political parties.
Citizens United isn’t fascism. I’d be more concerned if the government told us we weren’t allowed to donate money to candidates, and said they’ll do that instead.
By calling Obama a “fascist” it undermines our understanding of fascism (or whatever you want to call a totalitarian form of government). He may have certain fascist tendencies in shoring up the authority of the executive, but it doesn’t aid us in our analysis of what is going down in this country.
In 2008, it was good and right that millions of Americans voted in Obama as the first African-American chief executive of a society that invented 400 years ago a racially-based system of slavery. Those on the left who don’t appreciate that probably never understood the depth of the racial problem in this society and country.
Just because the first Black president is not a good president does not make him a fascist nor does it undermine the electoral victory for the American people in 2008.
Our “understanding of fascism”. Could you be a little more precise. It appears to me our understanding of fascism is about as clear as mud. Is fascism = nazism? Does fascism ALWAYS include oppression? Brutality? We can go on for a long time and in the end it’s just a word, a label. We live material realities that we often don’t recognize. A free nation yet we have the greatest percentage of our population in prison than any other country in the world. We have as many laws controlling personal behavior as a theocracy. California, the bastion of liberalism runs the largest prison system in the world – for a few more months anyway. Yes, Mussolini made the trains run on time – Italian trains run on time today. Yes, Hilter built the autobahn – Eisenhower built the interstate. Aren’t the lack of absolutes frustrating. But one characteristic of fascism – the corporate (or capitalist) class with the power of the state – this is one feature that is today very American – in my humble opinion. It is hard to separate the corporate authority from the political ones on either side of the aisle. And the problem – stagnation. Change is controlled, directed or frozen out all together. We’ve seen the coming oil crisis for forty years – BUT. Corporate Chrysler got bailed out 30 years ago under Reagan; have gone through one financial crisis after another since deregulation but not even the democrats show an interst in making changes. American workers lost 40% of their assets in 2008, have experienced a precipice drop in their quality of life yet the holders of our debt expect to go unaffected. We not only don’t share the gain, we don’t even share the pain. All evidence the corporate sector has control of government and uses it to their advantage. To me, that’s fascist effort. American fascism isn’t working for you, or me or America. This system is not meeting the challenges nor getting the job done. But remember – the Weimar Republic.
This is just part of the FAKE war on terror. As long as Americans remain stupid enough to believe Muslim Men can destroy the Western World, this war will never end.
The 2012 NDAA authorizes martial law. Period. Martial law for the protection of corporate capitalism — not for protection of us. It is folly, no, it is immoral, to accept any of the excuses or reasons that any of the Wall Street politicians from both major parties have given for supporting passaage of this law.
This law has nothing to do with “fighting terrorism”. The law itself IS TERRORISM. It is a law to protect the “1%” against the rising tide of resistance, here and worldwide, against the international legal structures and practices that are destroying our ecosystem and our freedoms for the sake of maximizing profits and minimizing the sharing of the wealth produced by our collecive human efforts.
It is time for a mass exodus, of all who believe in the Bill of Rights, OUT of BOTH the Democratic and the Republican parties. We really need to dump those parties and try something else, while it is still legal.
Surfing the web to find articles and editorials about the new Martial Law, there is already a flood of material. Before writing anything critical of the government is itself outlawed, we should all make the most of our reduced remaining freedom. READ. Turn off the TV! Write to friends. Organize.
One video, clearly a pro-Ron Paul piece, does a fair and short job of introducing what has just happened. You don’t have to be a Ron Paul supporter to appreciate it. See it at
http://www.youtube.com/watch?feature=player_embedded&v=NW-e7z7S6VI#!
I am going to separately post some of the other links I’ve found (so that this one doesn’t get delayed for moderation of too many links).
Here is what Occupy Wall Street’s general assembly said about passage of NDAA’s martial law provisions:
http://dissenter.firedoglake.com/2012/01/03/occupy-wall-street-condemns-the-ndaa/
Here’s some of the other article links I’ve found so far:
the UK’s Guardian ;
Huffpost;
the ACLU ;
the Businessinsider;
also here;
and Naturalnews;
other sites here and here.
Monty – Please, again, you cannot place links into a comment at the beginning, as it screws up our chat box on the homepage. We ended up editing your comment so it would publish, but please be advised in ze future, mi hermono.
Sorry about the chat box. Bummer. So, how much text needs to come in front of a link to avoid messing up the chat box?
Thanks for doing the reformating.
The signing of the NDAA gives an ominous newspeak meaning to ObamaMan’s slogan, “yes, we can.” All that’s missing is his whispered add-on, “lock you up and pull out your toenails.” Maybe it’s best not to get into debates over the wiggly disclaimers in his signing statement and instead concentrate exclusively on the devil’s amendment, 1031, that enables the nightmare. In other words, if there is no intention to lock up American citizens for indeterminate years without charge for ill-defined reasons WHY ENABLE THE PRESIDENT TO DO IT? That’s an argument that won’t do well when the National Guardsman throws you to the pavement, but for now it might be the basis for a repeal referendum. Why is 1031 necessary, and is it constitutional?
All of Monty’s comments are wonderful and sadly true. I agree with everything he has written here. This president, like the last president, is a fascist. The founders fought a bloody revolution so that “Red Coats” could not do what Obama has just signed into law. This president and all congress members who voted for indefinite detention are traitors. They have taken the shreds of the constitution left by bush and shredded them into tinier pieces. They are what I learned, as a child, to be “un-American.” They are anti-bill of rights and anti-Constitution. Do not believe that the two parties have any answers. Jefferson wanted a rebellion every twenty years. These times and these circumstances call for revolution. Whether or not one is a pacifist, one can not “win” against the oppressor fascists by playing their game of violence. Nonviolent revolution is the only answer I can see as a way to take back our rights and build a better society. Start brainstorming with everyone you know regarding non-c00peration with the fascist state and the fascist corporations and replacing them with constructive programs.
A few thoughts. While I couldn’t agree more that Obama, like Bush (and most US presidents before them?) is indeed a fascist, the “founders” fought a bloody revolution to do what precisely? Create a free land for white male property owners. Jefferson may have promoted the idea of a revolution every twenty years but as a slave owner, the first shots should have started at Monticello. Let’s not bemoan the “rights” lost without recognizing that historically not all people in the United States enjoyed “rights”, or at least, the same “rights”. When it comes to traitors, treason against the values the Bill of Rights and Constitution claim to trumpet began long before Obama. Long before Bush. It’s been one big myth from the first day pen was set to paper. Myth America. These times and these circumstances DO call for revolution. No doubt about that. The question of violence vs. nonviolence, however, is a completely separate consideration IMO.
This is exactly why Barack Obama was the President and none of we ordinary citizens were. None of us could comprehend or understand what the entire bill was about. That’s why President Obama came out with the signing statement. The bill was too complex. Ordinary citizens get too emotional and impatient, thereby hearing what they want to hear. I’m glad he came out with the statement.