Promises, Promises: President Obama’s NDAA Signing Statement

This time last year, President Obama responded to the 2011 National Defense Authorization Act with a signing statement. Objecting to the law's restrictions on the transfer of Guantanamo detainees to the U.S. for trial or to their home countries, the president promised: "My Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future." (My emphasis).

This past New Year's eve, President Obama signed the 2012 National Defense Authorization Act, or NDAA. In doing so, he extended the Guantanamo transfer restrictions, while also codifying the indefinite detention without trial of suspected terrorists. In the statement he issued with that signature, he said:

"I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists."

The pledge to seek repeal and oppose expansion of transfer restrictions had melted into a watery "reservation."

The president's Saturday statement also makes a new promise.

"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." Although the Obama Administration has consistently claimed the power to kill U.S. citizens without charge or trial in the war on terror, as it did to the radical cleric Anwar al-Awlaki in Yemen, the president now promises not to imprison them.

Of course, a future president still might

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Abu Ghraib Torture Victims Deserve Compensation

Abu Ghraib. Eight years ago the Iraqi prison was the site of physical and psychological torture, rape, sodomy and murder of Iraqi prisoners committed by Americans under the authority of Americans. While 11 soldiers were convicted on detainee abuse charges and Army investigations implicated at least 5 private contractors in similar crimes, no contractor was ever even charged.

But what about the victims?

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Wikileaks Documents Reveal Hazards of Blindly Relying on Secret Evidence

The flood of news stories in the wake of the latest Wikileaks document dump reveal how one Guantanamo detainee after another was imprisoned at Gitmo for years based on tips from informants that turned out to be false. As James Carafano of the Heritage Foundation said in today’s New York Times, that’s not a big surprise. Law enforcement relies on such dubious tips in building criminal cases all the time. “The nature of intelligence is that it is ambiguous sometimes. It is sometimes based on sources you wouldn’t take to Sunday school.”

In criminal cases, that’s not necessarily a problem, because criminal defendants ultimately get a chance to test the evidence in court. But that’s not the case for military detainees. Until the Supreme Court ruled in 2008 that Guantanamo prisoners had a right to challenge their detention in federal court, they were stuck in the prison with no independent assessment of their guilt or innocence.

In fact, that’s still the case for detainees imprisoned by the United States in Afghanistan today. The U.S. military holds some 1700 detainees at a prison on the Bagram Air Base in Afghanistan – nearly ten times as many as remain at Guantanamo. But unlike at Guantanamo, prisoners in Afghanistan don’t have the right to legal representation or to challenge or even to see the secret evidence being used against them.

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Some Thoughts on al Nashiri and Military Commissions While Waiting for the Grown-Ups to Take Over‬

The Department of Defense announced today that military commissions prosecutors have sworn charges against Abd al Rahim Hussayn Muhammad al Nashiri of Saudi Arabia. They will seek the death penalty for his alleged role in the USS Cole attack of 2000 and an attack on the French civilian oil tanker MV Limburg in the Gulf of Aden in 2002.‬‪ ‬‪

These charges provide a perfect teachable moment about what's wrong with military commissions and why prosecution of al Nashiri is better left to the regular, federal criminal courts.‬‪ ‬‪

What the government says here is that al Nashiri is a war criminal for attacking the Cole. But if the Cole attack was in a war, then it's not a war crime because under the laws of war, the USS Cole is a legitimate military objective, as are the sailors on the vessel.

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Some Thoughts on al Nashiri and Military Commissions While Waiting for the Grown-Ups to Take Over‬

The Department of Defense announced today that military commissions prosecutors have sworn charges against Abd al Rahim Hussayn Muhammad al Nashiri of Saudi Arabia. They will seek the death penalty for his alleged role in the USS Cole attack of 2000 and an attack on the French civilian oil tanker MV Limburg in the Gulf of Aden in 2002.‬‪ ‬‪

These charges provide a perfect teachable moment about what's wrong with military commissions and why prosecution of al Nashiri is better left to the regular, federal criminal courts.‬‪ ‬‪

What the government says here is that al Nashiri is a war criminal for attacking the Cole. But if the Cole attack was in a war, then it's not a war crime because under the laws of war, the USS Cole is a legitimate military objective, as are the sailors on the vessel.

There's more...

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