The $662 billion NDAA (National Defense Authorization Act) was signed by President Obama at the end of last year; despite "serious reservations". At issue was a provision that would allow indefinite detention of American citizens, without due process.
The ACLU has called the detention provision "dangerous" and lamented that the "indefinite military detention without charge or trial into law [could take place] for the first time in American history". The Washington Post reported that the provision would "allow the military greater authority to detain and interrogate U.S. citizens and non-citizens and deny them legal rights protected by the Constitution."
In fact, an amendment was introduced that stated that indefinite detention of U.S. citizens without trial was forbidden. However, that amendment was rejected in the Senate by a vote of 38-60. Obama even threatened to veto the bill. Why did Obama sign the NDAA, even though he expressed concern over its contents? The stated reason was simple... military funding was due to expire.
At the time, President Obama said, "The fact that I support this bill as a whole does not mean I agree with everything in it." He continued, "I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens." So the question begs to be asked: Why did the Obama Administration appeal a temporary injunction against the provision this month?
As reported by Stephanie Whiteside of Current, a group of journalists and activists filed suit against President Barack Obama and Secretary of Defense Leon Panetta, saying that the provision is unconstitutional.
District Judge Katherine Forrest issued a preliminary injunction, which would prevent the government from enforcing the provision, but the administration is appealing the ruling to a higher court, as reported by Joe Wolverton, II, who describes the court proceedings.
President Obama said at the time,
"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."
Judge Katherine Forrest quoted Chief Justice John Roberts during the proceedings, "We would not uphold an unconstitutional statute merely because the government promised to use it reasonably."
How is it that President Obama can threaten to veto the bill over the unconstitutional detention provision, and then later appeal a ruling that would stop the provision from being enforced? Did he change his mind on the value of the detention provision?
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Comments: 145
Good article Renee. Well done.
Rory and Robert actually agree with something negative about O.
"The USA Patriot Act is not a threat to terrorists nearly as much as it is a threat to America, and it is far from patriotic." - Jon Dragt
We do not see Obama as a "god" who is infallible, as many on the right continually try to characterize our position erroneously.
That is the perception from many on the right who are only capable of seeing two options (e.g. with us, or with the terrorists) on every issue. It arises every time we defend Obama against dishonest or unrealistic criticism such as: did nothing to improve the economy; hates white people; is a communist; etc.
But honest, fair criticism is perfectly acceptable. Sometimes we'll agree. Sometimes we won't. Sometimes some of us will and others on the left won't. It's because we apply what is known as critical thinking to each question, each issue. And we decide based on the facts as they are known to us.
(Sorry, Robert A., don't mean to presume to speak for you, by "we" I mean those of us on the left in general.)
Merlin, lol, I was taking a double take on that myself.
I think this brings up an interesting split in the Republican / Conservative zone, because the extreme right who is anti-Obama is concerned about the loss of freedoms to an administration they dislike / fear, and joins the left in outrage over the clearly unconstitutional Patriot Act.
"The USA Patriot Act is not a threat to terrorists nearly as much as it is a threat to America, and it is far from patriotic." - Jon Dragt
This is really the "We're Removing Your Constitutionally Guaranteed Freedoms Act," but they really couldn't call it that, so they labeled it the Patriot Act so it would fly with the millions of Americans who never look past the label.
...(I'm laughing) what's this "on again off again friend"?
...we're friends ;)
...you're a friend I disagree with most, and that says a lot for you.
It's widely reported if this Vet's Mother had not made a ruckus on Facebook he would still be sitting there and that is the only reason he is not still sitting there. Shall we all count our Mother's to bail us out when the law 'misbehaves'? The Vet has an accomplished Constitutional Law attorney who says this is the worst violation of Constitutional Rights he has seen in his entire career.
If you're going to make a sideline issue, at least make it in the right direction. Every American should be concerned about a gross violation of other Americans' Constitutional Rights, which WAS my point.
I stated myself very clearly, but let me say it again just for you: "Does anyone know if circumstances of this "preventative detention" case, involving the Viet Nam Vet, is affiliated with The Patriotic Act? (In terms of giving law enforcement the "right" to carry him off without due process.)
His Mother had everything to do with finally receiving legal recourse. I'm not going to argue against an ignorance of the facts. You are wrong. The man was arrested, incarcerated and sentenced without due process. The fact that law enforcement was utlimately forced to extend "legal recourse" 3-weeks after the fact is irrelevant to My point:
The Patriotic Act? (In terms of giving law enforcement the "right" to carry him off without due process.)
If you can't answer, then don't try to turn it into an argument you think you can.
Jeanne, I went a step further, Renee - I recommended this. A rarity for me, as you know. <<blush>> ;-)
Fren, "Does anyone know if circumstances of this "preventative detention" case, involving the Viet Nam Vet, is affiliated with The Patriotic Act? (In terms of giving law enforcement the "right" to carry him off without due process.) This is embarrassing, but what case is this? You are not referring to Brandon Raub, obviously, since he is not a Vietnam Vet...?
Lebrea, Why is this blog better than others? Well, I imagine it is because you agree with it ;-)
Rory, we are open to honest, reality based criticism What criticism have I given (specifically) that is not reality based?
Renee, I have clearly posted remarks that make this perfectly clear on a number of your articles and in response to many of your comments. If you can't remember any of them and don't want to go to the trouble of looking up those remarks, What in the name of God would possess you to think that I want to do your legwork for you?
The Administration should be encouraging the injunction rather than appealing it.
I never for once thought that. When I heard him say that, his voice did not sound convincing to me. He sounded like a liar to me at that time. Now, the proof is in the pudding, as they say.
I can't recall how Obama's voice sounded on that remark, but I suspect most of these folks are professional enough in their disingenuousness that they can lie while sounding like butter wouldn't melt in their mouth.
But I did not believe the remark either. It is all too easy for those in positions of extreme power to justify, in their own minds, actions that increase that power. They may honestly believe in their hearts that they will not abuse the power. But they fail to see how corrupting that power is even on the most moral of men, and they fail to see that once amassed that power rarely bleeds away from the position when new actors assume the office. It is the slipperiest of slippery slopes.
I TOTALLY agree.
The difference I see is that some try to limit how often they lie, while others have no concept of the truth at all. Politicians generally fall into the second class regardless of party.
I read that, didn't see Obama say it, when it was supposedly his final word. I, too, even then, had no doubt he was going to sign it. Not signing it went against the grain of his well-etched character. When he said that, if I recall, was right after the ALCU expressed concerns. I regarded it his way of appeasing/redirecting (shutting up) their base.
It is the slipperiest of slippery slopes. Yes
The Administration should be encouraging the injunction rather than appealing it. It seems as though the administration may already be using that provision, Larry - That would answer your question - see the link, go to 3:05.
I did not ask any question in my comment above. (9:07am, August 24th)
And your thoughts are correct, and your thoughts do not even encompass the extent of how it will be used (whether by by O, his minions, or by some successor).
All weapons in history have eventually been used. This is a weapon, and when those in power get desperate, it will be used. Lets hope that it will get repealed before they get desperate (like will O be desperate enough to use it before the election to quell the voters against him?)
Now that is the real question that we are facing right now.
My thoughts aren't pretty either....
Quite simple. They intend to either use it or continue using it as the case may be.
American Patriot Brandon Raub Released!
As we see this case of government detention revoked by the courts.
Short lived!
Or he can corrupt the judges, or even ignore them as the rule of law seems to be toothless against him.
short liver. heeeheee
"So the question begs to be asked: Why did the Obama Administration appeal a temporary injunction against the provision this month?"
And another excellent question. As much, where the heck were all of our "elected representatives" in Congress when it came to doing the right thing on behalf of The People?
Republican opposition couched the original Bill as already providing the safeguards American needed. But very clearly that was not the case nor did other educated Congressmen find that to be so. I plan to vote against any & all Congressmen in my State that did support it, I don't care who/what they are. I'm still voting against those who forced Obamacare and I will never forget their dastardly deeds.
"And why did the Obama administration insist on the detention without due process against citizens be included in the bill before he would sign it?"
...and wasn't it the Obama administration and the democrats who wanted "due process" for the Muslim terrorists? SO, terrorists rate better than US citizens? Hmmm, someone no like Americans.
Good question, Nate!
wasn't it the Obama administration and the democrats who wanted "due process" for the Muslim terrorists? SO, terrorists rate better than US citizens? Hmmm, someone no like Americans.
So very correct. But... Think Romney wouldn't also be the same? He'd be EXACTLY the same.
Amen, Big Mama!
Robert, Think Romney wouldn't also be the same? He'd be EXACTLY the same. ugh. Probably. What to do...?
Different puppets, same puppet master. As long as the puppet master does not change, the puppets (Bush, Obama, Romney, et al.) will continue dancing the SAME dance.
This would be a good debate question, but doubt we'll ever see it...
Really filled with that loving spirit, eh, Fren?
...the last time that happened to me there was an empty bottle of CAZADORES.
I don't know why, but there are people who seem to support this horrific idea. And those people must be powerful enough to push this legislation to the process.
Obama is a lawyer. Some may question his qualifications, as much as they question his birth place, as much as they question his religion affiliation and so on.
However, it seems that he knows his law after all.
The Constitution allows for all sort of ideas to turn into law. Same times, some of them may be against the principles of the Constitution, even if a majority wants that law passed.
However, just because a law passed does not mean that it will stay there. Every citizen of this country, physical or juridic can challenge the nature of the law.
Some of us think that the law might be unconstitutional, and maybe it is. Some of us know that it is unconstitutional, but they also know how long the process to decide is.
So, by signing it into law, Obama decided to start the constitutionality trial process...
Until the Supreme Court decides if it is or it is not constitutional, the supporters of the law will try ad nauseam to get it.
The only way to put this thing to bed is to start the due process...
Any complaints? Address them to the Founding Fathers, they created the confusion.
Obama just does what he learned in school. After all even if he was a "token" student, he spent the years required to graduate, and it seems that he spent them wisely. He was teaching Constitutional Law, by the way...
Renee, if you want to live in a Democracy, this is the price you have to pay for it... Democracy is not Paradise. Actually it is tougher than Hell. In Hell there are few rules that every one follows. Basically you burn forever...
In Democracy you have to fight to keep it Democratic...
I agree that we need to fight, Crin...
"There is a real difference and I would hope that people living here would understand that we do not live in a Democracy but a Republic"
Why don't you enlighten us on on the difference?
Exactly correct! A democracy is mob rule.
The reason most have no clue is that the difference has not been taught in our schools for DECADES.
"DEMOCRACY is when a lamb and two wolves vote on what they are having for dinner. LIBERTY is a well-armed lamb." - Benjamin Franklin
I couldn't have explained it any better! But here is my answer for Crin;
Democracy is: Rule by Omnipotent Majority. In a Democracy, The Individual, and any group of Individuals composing any Minority, have no protection against the unlimited power of the Majority. there can be no legal system which protects The Individual or The Minority (any or all minorities) against unlimited tyranny by The Majority.
In a republican form of government, there is rule of law. All citizens, including government officials, are accountable to the same laws. Government power is limited and decentralized through a system of checks and balances.
The Republic form of government set up to protect The Individual’s God-given, unalienable rights and therefore for the protection of the rights of The Minority, of all minorities, and the liberties of people in general.
The definition of a Republic is: a constitutionally limited government of the representative type, created by a written Constitution--adopted by the people and changeable (from its original meaning) by them only by its amendment--with its powers divided between three separate Branches: Executive, Legislative and Judicial.
"The reason most have no clue is that the difference has not been taught in our schools for DECADES."
...and there's a reason for that:
45 Declared Communist Goals
#17. Get control of the schools. Use them as transmission belts for socialism and current Communist propaganda. Soften the curriculum. Get control of teachers' associations. Put the party line in textbooks.
#29. Discredit the American Constitution by calling it inadequate, old-fashioned, out of step with modern needs, a hindrance to cooperation between nations on a worldwide basis.
...and there are more that tie in with those.
Have you heard some of the leftist here on Gather stealthily suggesting we should be a democracy? I've noticed 3 of them since I've been here. It comes from this way of thinking. "Social Democracy and Communism"
Social Democracy and Communism
The USA is actually a constitutional republic and representative democracy, "in which majority rule is tempered by minority rights protected by law." I've also heard it called a Democratic and Constitutional Republic.
You'd better sit down, I am going to agree with you again.
Glad I was already sitting down or I would have been knocked over by a feather.
"The reason most have no clue is that the difference has not been taught in our schools for DECADES."
...and there's a reason for that:
45 Declared Communist Goals
If you are directing this at me to educate me, you are wasting your time. I knew about them and told people about them long before most people on Gather were even a gleam in their parent's eyes. I was even denied the use of a copy machine one time because I wanted to copy and forward them to my friends.
May I ask you what sort of educational background do you have?
Well, I am sure that I may ask, the actual question is do you care to share it with us?
...since you brought up education, I figured you did know. That was intended for others not in the know to simply expand on your mention of it. I hope you didn't take me wrong.
...gee, do I detect a stench of arrogance in your tone? Suck your chest back in and bring your nose down out of the clouds. Everyone knows where you're going with that.
I just wanted to make sure that I am not trying Philosophical topics with people formally educated as engineers...
I love engineers, don't misunderstand me. They are great when it is about engineering and technical creativity, but in any other subject matters they suck!
So, are you an engineer?
What good is a thousand hypotheticals as to why Obama signed off on it, next to the fact he did, and that was wrong?
And that is the trick...
And I did not hypothesized why Obama signed. I told you guys why he signed it.
If you understood the Founding Fathers, you would have known that their purpose was to show us that life is neither black, nor white, it is a gradient of 256 shades of gray...
Do you care to answer my question above also?
...:) that's loaded. You are saying "If we understood the Founding Fathers like YOU understand the Founding Fathers" right? Is that the starting point?
No, you told us guys why you think he signed it. To start the whole constitutional law process.
On the most evil piece of legislation to cross a POTUS' desk.
That he didn't have to sign.
That he could have vetoed.
But he signed. A weapon made for purely domestic purpose, and he signed it, unnecessarily, in your eyes, to initiate a court game that never needed to be played. I don't buy that, who would?
Sorry I didn't submit a resume to throw a comment on an open forum in a post you didn't even write. Have you considered supplying your own credentials before demanding them of others?
If it's important to you you to bring a philosophical bent to a story of politics and law, let fly. I insist you inform me of your experience in nuclear physics, and I won't discuss gardening without it.
Jay & Nate, exactly right.
On the other hand, Renee, if this is the way you feel about going to school, you better drop it and find something else that you really enjoy. A person who had the experience of a higher education institution, will at least have a different manner of talking at the end of the four or so years spent in school... I agree with you though that schools today, are not what they used to be, however the benefit of attending one still well worth the time...
No, I don't disagree, America is a republic. As a matter of fact, when Ben Franklin came out of the convention and he was asked by a woman who was waiting outside what are they going to offer the people, Franklin answered: "It is a republic madame, make sure you keep it this way".
On the other hand, the uniqueness of America over other republics is that it is ruled by the majority rule, and the form of government is based on democratic principles. Now, if any of you guys spent some time with the history books, you will find out that the Roman Republic at times, in dangerous situation was lead by a Dictator with absolute powers for the duration of the danger. When the hard times passed, it reverted back to the republic status.
USA was designed in a unique form to be a republic, in other words to be the property of the people, not a certain individual, a monarch or anything similar. The etymology of the word is "res publica", or in English “popular matter”. In the same time the government should guide itself on democratic principles, (demos in Greek people) in which the majority rules. Both of these principles have been included in the Constitution, but I am sure that you knew it. So, to say that we don't live in a Democracy which is the "power of the mob", is totally simplistic and it shows lack of understanding, obviously a reflection of lack of formal education in the matter.
Expanding on the idea that America is a Constitutional Republic, this is a total redundancy. The people decided on a form of government which is a republic, following the guidelines of a constitution. The presence of one does not imply the exclusion of the other. England has a constitution about five hundred years older than ours, and although it is a monarchy, it is still lead by a constitution. Practically the monarch is a symbol with powers given by the constitution.
The intend of our Funding Fathers was not to have a republic, but a democratic republic, and the fact that they wanted the majority to rule is very significant, although either Jay or Nate think otherwise. It is assumed that it is normal for the majority to rule the minority. When you have one third of the population thinking one way, and two thirds feeling the other way, it is according to the laws of Nature to have the minority swallowing hard and trying to adapt...
So both Jay and Nate are right as long as they are taken together not exclusively. Separately none of them is right, because the Funding Father wanted America to be a mix...
Now, you may believe whatever you want, however you have to make sure that you are expressing your opinions. It was not my intention to deny or to approve the content of the posting. I only gave an answer to why Obama did what he did. And I repeat it, the only way to deal with legal issues in this country is to go in front of the Supreme Court judges who have the power to interpret the constitution. The power was given by the Founding Fathers.
Personally, I agree with the fact that the law is bad and it is against the principles of this country, however if you understood the constitution, its spirit, you would have realized that whenever there are doubts, the final word is given by the Supreme Court. You still can disagree with the judges, however it is their privilege. There is no document ruling this country saying that every single citizen should be happy with the decisions made and implemented. The written documents say that we have to obey what was decided by the majority, the "mob" in this case...
I have lost seven years of my life, almost lost my family and went through hell because people who don't understand the constitution were offered the opportunity to decide on its letter. I don't think that anyone should be prevented from voting for any reason at all. However, I think that anyone who is supposed to be in a jury should be IQed and has to have a few years of college, at least.
These measures don't prevent morons from the jury, but at least they will be morons with proof of formal education and capacity to think...
Good luck with your PhD Renee. The only trouble will be that once you got it, you will realize how much you learn and how much more is left to learn...
From the preamble to the Declaration of Independence:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed, by their Creator, with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."
Is that only if the Supreme Court says so?
No need. It was wrong. The words you were groping for are " legal or illegal ". Most tyrants' actions are within the law of the land.
I agree with you though that schools today, are not what they used to be, however the benefit of attending one still well worth the time...
Pretty rich coming from the fellow who regaled us twice of tales of the " Funding Fathers ". Proofread first, condescend later.
Now, if any of you guys spent some time with the history books...
Mrs. Powel:"Well Doctor, what do we have-a Republic or a Monarchy?
Franklin: A Republic, if you can keep it."
Yeah, history's fun. Take the time. A Dictator was raised to counter an external threat. The NDAA is an internal menace. The danger is perpetual.
"Jay or Nate". Did you mean mmmerlinnn? or Big Mama? I didn't play the definition game.
the only way to deal with legal issues in this country is to go in front of the Supreme Court judges
Wrong. The issue needn't arise. A moral man can refuse to sign off on it. The man who didn't is a fool, a tool, or a tyrant.
the law is bad and it is against the principles of this country
We agree here.
Proofread first, condescend later. Now THAT is a good line.
Mr. President, according to the oath of office you took, you have no choice but to reject a bill that contains that which goes against the United States Constitution. If you sign that which opposes the Constitution into law, you violate that oath, and you should be impeached and removed from your current position, and dealt with by a criminal court for your actions.
In order to honor his oath to the United Stated Constitution, Obama should not have signed this bill, knowing that the wording had not been changed from his original opposition. (not that I believe for a moment that he had opposition) With his signature on that bill, he passed the point of qualifying for impeachment.
Three questions come to my mind.
(1) Why did congress pass a bill that they knew would allow common citizens to be taken into custody, without being charged with a crime, denied legal representation, and to be held for as long as the government determined was necessary?
(2) Why did Obama sign a bill that he knew would allow common citizens to be taken into custody, without being actually charged of a crime, denied legal representation, and to be held for as long as the government determined was necessary?
(3) Why is neither congress or the President of the United States concerned about intentionally going against the very foundation of the United States Constitution?
We, as a people, need to finally realize that our problems go much further than this government created and maintained division between the right and the left. What happened to this individual can happen to any of us, and it can be done because our government (collectively, right and left) put this law into place in order to have the ability to enforce that law, as they deemed necessary. Anyone who voted in favor of the National Defense Authority Act and yes, the president who signed it should be removed from office with the very next related election.
The solution is actually quite simple. If you wish to keep your rights and freedoms, you eliminate those from positions of authority who are trying to take those rights and freedoms from you.
Yep That is the solution and will remain the solution. When we know that these folks are doing these illegal unconstitutional acts they need to be removed and charged, tried and even provided with the due process they want to deny us.
As the brilliant KrisAnne Hall stated, "governments are just doing what they do"...it is up to Americans to be vigilant.
Vic, I should have added this - look at 3:05... they may already be implementing that provision. I really wish I saw that before I wrote this.
Darn they think Americans are stupid. Perhaps just playing down to their audience. "We can know them by their fruits." Fail safe test.
Are you holding your nose???
So your liver matches your blouse?
Off to the asylum with you. Throw a man in jail, he gets out someday, he's credible, a political prisoner even. All possibility of effective advocacy is out the window for a known inmate of a nuthouse. It happened to a friend of mine. This is just the middle. November is the point of no return.
I know her well, it's a true story. I'll see if she's interested in telling it in full, but...a kid, really, just trying to make a little difference, not restrict food supply, just inform consumers. You have NO rights within those walls and that's why they do it. And I think it happens more than we know. The strategy, of course, is lifted from the Russians and Chinese. First you exercise free speech, then you're not PC, then you're a bigot, a racist, then crazy. Next stop on this road to Hell is criminal.
The Constitution is effectively scrapped with that provision. It's an insult to humanity, it was made to be used, it has been used, it will be used. Paul was our last real chance and Johnson's our only faint hope.
That story is horrifying! How long ago did that happen? Did she ever seek legal counsel?
The buzzkill returns....different tale, today. Different circumstance, too, but I think it illustrates how out of control this apparatus can get.
Can you link within Gather. I think I read you need the authors permission somewhere. God, I'm a caveman.
I don't care for the NDAA, or the patriot act, or the MCA, or any of the draconian measures passed under Bush and the Republican congress. You wonder that I say under Bush, I imagine (be patient), but there are a few things you have wrong in this article, and they are worth noting. Obama threatened to veto this bill, originally, and then made a signing statement promising not to use this on US Citizens, why? First of all, you have to realize that the NDAA merely codifies powers already granted under the AUMF in 2001, at least the Bush and Obama stable of lawyers has always considered that they had these powers, granted under the AUMF, and both have said so, previously. Second, the reason Obama threatened to veto the bill was because of the fact that he felt congress was going to tie his hands on his abilities to deal with non citizen terrorists, and clearly said that was why he opposed it at the time. In the end, the number of representatives and Senators in congress that opposed this bill amounted to only a handful, and there was no point in not signing it, it had one of the most veto proof majorities of any legislation in many years. Why is he now opposed to this new injunction? For the same reason he was opposed to the bill in the first place, it ties his hands on non citizen terrorists, as well as citizens, which he has already promised not to use it on. It's pretty simple, and the motivations transparent, when you know the history of the bill, etc.