This is very, very, very big news.

Yet Naomi Wolf published in the U.K. Guardian on the eve of the decision as if Obama had not issed the waiver rules - as if indefinite military detentions of U.S. citizens was about to become mandatory, thanks to Obama.



Lawfare Here’s what Obama has done: First, he has read his authority to waive the provision very broadly. He has both made clear that officials have the authority to waive it at any time with respect to individual detainees and has prospectively waived it himself with respect to several whole categories of suspects. Some of these categories are quite broad–including, for example, any situation in which transferring someone to military custody might impair efforts to secure his cooperation or garner his confession. Offhand, it’s actually a little hard for me to imagine too many cases that wouldn’t fit comfortably within at least one of the preemptive waivers the president has already issued. I suspect that isn’t an accident. Second, Obama has set up a process for determining whether transfer to the military is required that will all-but-guarantee that it never is.



Here’s how it works: Section 1022 only covers a narrow range of people to begin with, so if there’s probable cause to believe that someone arrested is covered and not subject to any of the blanket waivers, the attorney general–in consultation with other senior national security officials–then has to determine whether there is clear and convincing evidence that the person is covered by 1022. If there isn’t clear and convincing evidence, there’s no transfer.

If the officials discover that one of the waivers applies after all, there’s no transfer. And if they feel like issuing a new waiver just to make sure, there’s no transfer.

If, for some reason, there is a transfer, the FBI has to make sure that it doesn’t interfere with any ongoing interrogation or compromise any investigation, and if there’s any chance of either, the transfer has to wait. And the procedures are clear that an “interrogation” here is not limited to a single session but, rather, “extends until the interrogating agency or agencies determine that all necessary intelligence gathering efforts have been exhausted.” The procedures further make clear that the agency with custody of a suspect–presumably the bureau–shall operate normally in accordance with standard procedures until a transfer is required and can be effectuated without harm. They also reiterate that the FBI remains the lead agency with respect to investigating terrorist threats inside the United States.

Has Naomi Wolf published any retraction? This is big news. No.

For the first two days after the Obama waiver of the NDAA, the top google hit, in a crowd of rightwing blogs screeching against the decision was a Huffpost piece that managed to mangle the headline (and the story) to make it seem that what Obama waived was merely that American citizens would nowno longer be subject to indefinite military detention!

But U.S. citizens were already excluded under Section 1022 by the time he signed the bill.

Yet judging by the comments, many Democrats and Independents incorrectly believe that the NDAA actually still applied to American citizens, and that all he did in the waiver was waive NDAA's threat to U.S. citizens' civil rights.

Considering that Obama's signing of NDAA led to a hysterical exodus of low-info Democratic and Independent support that probably measurably lowered his approval ratings, and could threaten his re-election - for not somehow magically line-item vetoing the Cheney-esque provision in the annual military funding bill - it is very disturbing that the media has played down what amounts to a very clever legal “3,450-word line-item veto” that he has achieved.

Obama made good on a promise he made in November when he threatened to veto:



Washington Post By Peter Finn, Published: November 18

White House threatens to veto defense bill over detainee rules The White House on Thursday threatened to veto the 2012 National Defense Authorization Act because a series of the bill’s provisions would mandate military custody for some terrorism suspects and prevent the administration from transferring detainees out of the military prison at Guantanamo Bay, Cuba."

WASHINGTON -- Senate Majority Leader Harry Reid (D-Nev.) has promised that the National Defense Authorization Act for FY 2012 will not come up for a vote until the Senate Armed Services Committee (SASC) changes provisions dictating treatment of detainees, including one that mandate military custody of terrorism suspects.

As early as October, Harry Reid had threatened to block it, on Obama’s behalf, if the offending language were not removed:In the end, the final bill was modified in December.

The annual NDAA supplies the funds to the DOD to feed, house, arm and fly home the troops. There was no possible way that Obama could have vetoed the entire bill. He would have faced chaos on military bases in the US as well as in Iraq and Afghanistan. That would have been dangerously irresponsible, yet in the furore over the signing of NDAA, that is exactly what was demanded of him.

Presidents do not have a line item veto, so he signed it with a signing statement expressing his misgivings.

But - while presidents do not have a line item veto, when signing bills - the 2012 NDAA did contain clever “get-out-of jail” language (inserted by sympathetic Democrats?) that allows him to effectively veto the bill after the fact.



Verdict Section 1022 of the NDAA specifically authorized the President to “waive the military custody requirement of Section 1022 at any time when doing so serves U.S. national security interests." Taking advantage of section 1022’s national security waiver provision, the new directive sets out a number of broad and flexible categories of suspects who are supposed to remain in the civilian justice system.

“would be inconsistent with the fundamental American principle that our military does not patrol our streets”.

“We have spent ten years since September 11, 2001, breaking down the walls between intelligence, military, and law enforcement professionals; Congress should not now rebuild those walls and unnecessarily make the job of preventing terrorist attacks more difficult.”

“Broadly speaking, the detention provisions in this bill micromanage the work of our experienced counterterrorism professionals, including our military commanders, intelligence professionals, seasoned counterterrorism prosecutors, or other operatives in the field.”

Verdict The directive establishes an interagency review process that defaults back to the civilian justice system in almost any conceivable case. Only if a range of government actors concur—including the Attorney General, Secretary of State, and Secretary of Homeland Security—will a suspect be transferred from civilian to military custody. And even if the interagency process recommends the transfer, the head of the FBI can still veto it if he or she determines that the transfer will disrupt ongoing intelligence collection or compromise national security investigations.

Verdict “Among the protected categories are: 1. Foreign nationals or residents whose placement in military custody “will impede counterterrorism cooperation,” including the sharing of intelligence.



This category alone could arguably cover a wide swathe of cases, given that foreign governments are generally not pleased to see their nationals placed in indefinite US military detention, and that the sharing of intelligence often takes the form of trading favors. 2. Lawful permanent residents arrested within the US or arrested by a federal agency on the basis of conduct occurring in the US. While this exemption grants lawful permanent residents a degree of protection, it is worth noting that US residents picked up abroad by the US military based on conduct that took place on US soil, or those picked up abroad by the US military based on conduct occurring abroad, would not be protected by it. This is still much preferable to the rule set out in the NDAA, which makes an empty gesture in the direction of protecting lawful permanent residents from mandatory military detention, allowing such detention only “to the extent permitted by the Constitution of the United States.” Indeed, the wording of the NDAA makes one wonder if, by implication, non-lawful residents can be held by the military even when the Constitution does not permit it. 3. Non-citizens whose transfer to military custody “could interfere” with efforts to secure that person’s cooperation or obtain his or her confession. (This is another extremely broad category, particularly given the open-ended reference to possible—as opposed to likely or definite—interference.) “Although such transfers are still conceivable given some toxic confluence of politics and events, the review process set out in the directive effectively reverses the presumption of military custody contained in the new law.”

The WH, in objecting to the NDAA provisions, said theyIndefinitely detaining suspects in military detention does not make America safer. It is against our national security.Obama points out that this administration’s competent professionals got Bin Laden and competently tried the underwear bomber in court.Normal civil law enforcement will return to being the default. Most terrorists will now face civil trials in court with a lawyer to represent them, and will face normal criminal prosecutions in civilian custody.With this end run around the warmongers in congress who inserted this language into the NDAA, Obama has ended the era of Cheney torture dungeons.You might want to alert the hordes of low-info voters that won't vote because Obama is as bad as Bush because “NDAA”.