Obama's Signing Statement (proper, enough?) and Subtitle D--Counterterrorism, NDAA 2012, Final Version, H.R.1540.ENR

I have not been even remotely satisfied with the reporting on the NDAA 2012 issue. Therefore, I went out and researched it. Here's my own report on it (we are press):

Let's begin with some background (Note: All links in this post open new tabs):

The National Defense Authorization Act (NDAA) for Fiscal Year 2012 was signed into law, December 31, 2011, by President Barack Obama. The NDAA is a huge Act or bill. It covers $662 billion in funding. The summary of the bill alone is quite long.

The US House of Representatives and the US Senate had different versions. When that happens, both chambers send committees that together constitute a joint committee for purposes of hammering out the differences. That's what happened in this case. The joint-committee's version was adopted by both chambers, and it was that version that was sent to Barack Obama for his veto or signature.

Leading up to that, there was a great deal of controversy. This can be confusing, so bear with me.

The original version appeared to many people, including a number of members of the House and Senate, to, for all intents and purposes, declare Martial Law in the US, whereby the Bill of Rights is suspended, due process of law is suspended, and the President is declared dictator in many respects. I agree with that position.

However, we must back up further. The question is whether a US citizen acting with, or for, a legal enemy of the US intends to, or does, harm the US. Here we have U.S. Supreme Court, Ex Parte Quirin, 317 U.S. 1 (1942). There you will see that the US Supreme Court said that being a US citizen is no cover against the US military after the citizen has joined the enemy (beyond mere political speech) in planning and/or carrying out acts or war against the US.

Further, the question becomes whether the individual or group or nation is a legal enemy of the US with whom the US is at war. That legal case cited above pertains to WWII, with clearly defined belligerent nation-states in openly declared states of war with each other. The current NDAA issue pertains particularly to 9/11 and the AUMF (Authorization for Use of Military Force -- Public Law 107-40).

The AUMF has long been rightly criticized as not constituting a constitutionally legal declaration of war. I agree with that position.

The AUMF was a direct response to the official US version of 9/11. (Note: I do not hold with that "official" version.) The AUMF authorized the executive (the President) to wage war against those ostensibly behind 9/11.

...the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Whether or not that "law" is truly constitutional goes back to debate concerning Presidential war powers at the time of the framing of the US Constitution. I disagree with John Yoo concerning the extent of the imperial presidency (Yoo is highly supported of a very powerful executive branch/President), but here's a link to some of what Yoo has written publicly on the issue.

The AUMF gets it's "authority" from the War Powers Resolution of 1973, which itself was the subject of much debate as to whether or not it went far enough in reining in the imperial presidency after Richard M. Nixon's abuses.

Recently, we saw the issue raised concerning the US involvement in the NATO campaign against the Qaddaffi regime in Libya. Rep. Dennis Kucinich and others felt that President Obama needed a formal declaration of war in order to continue the campaign beyond the time limits set by the War Powers Resolution of 1973 cited above. I disagree with Dennis Kucinich's position but not because I sided with President Obama in using military force but rather because the US Constitution binds the US to the UN Security Council (UNSC) by way of international treaty and the UNSC's Responsibility to Protect (RtoP; also: R2P) declaration actually required the US to act in accordance. The nations that refused to participate were actually acting in contravention of secular international law.

So, the NDAA first had no language in it restraining the military from treating the US as a conflict zone or battle ground in terms of going after US citizens acting with or on behalf of al Qaeda or its affiliates.

Also, the definition of al Qaeda is not supplied; but for the purposes of the Act, one might assume it means those behind 9/11 per the "official" US version of that day.

Apparently, the following language was added and then removed:

...AUTHORITIES.—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.

It is my understanding that US Senator Carl Levin reported on the Senate floor that the Obama administration specifically asked for that language to be removed. So, without that language, various Senators and Representatives were more than concerned about executive overreach (the President as dictatorial emperor for a term or two).

The language quoted above was placed in the Act by the Senate committee. I'm not sure exactly what objections the Obama administration had, but I assume they were based upon President Obama's view that  "U.S. Supreme Court, Ex Parte Quirin, 317 U.S. 1 (1942)" (cited above) pertains -- that the President's "authority" must not be rolled back from that Supreme Court decision and others (more below).

Now, before I continue, here's a fairly short but fairly thorough backgrounder on this issue. Coupled with what I've written above, you should be in a pretty good spot for understanding the basics of this gigantically underreported issue.

You see from that Christian Science Monitor article that Senate Intelligence Committee Chairwoman Dianne Feinstein (D-CA) took strong exception to the language in the bill allowing way too much Presidential power. I've been very critical of Senator Feinstein before, but I commend her (up to a point) for taking the stand she did concerning this NDAA. Senator Feinstein apparently tried several times (along with others) to amend the Act to prohibit Presidential "authority" to disappear US citizens into military custody.

Then, the joint-committee hammered out the joint-resolution that Barack Obama signed.

Here's what the New York Times had to say about it (in part):

After a passionate debate over a detainee-related provision in a major defense bill, the lawmakers decided not to make clearer the current law about the rights of Americans suspected of being terrorists. Instead, they voted 99 to 1 to say the bill does not affect "existing law" about people arrested inside the United States.


Each side pointed to different passages of the Supreme Court's ruling in a landmark 2004 case. The decision said the Bush administration could hold as an enemy combatant a citizen who had been captured in Afghanistan and was accused of fighting with the Taliban. Mr. Levin noted Justice Sandra Day O'Connor wrote that "there is no bar to this nation's holding one of its own citizens as an enemy combatant."

But others noted that Justice O'Connor had also stressed that the ruling was limited to "a United States citizen captured in a foreign combat zone" while active combat there was in progress, a different context from a domestic arrest. (She also wrote, "Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized.")


After Congress passed a resolution--the Authorization for Use of Military Force (AUMF)--empowering the President to "use all necessary and appropriate force" against "nations, organizations, or persons" that he determines "planned, authorized, committed, or aided" in the September 11, 2001, al Qaeda terrorist attacks, the President ordered the Armed Forces to Afghanistan to subdue al Qaeda and quell the supporting Taliban regime. Petitioner Hamdi, an American citizen whom the Government has classified as an "enemy combatant" for allegedly taking up arms with the Taliban during the conflict, was captured in Afghanistan and presently is detained at a naval brig in Charleston, S. C. Hamdi's father filed this habeas petition on his behalf under 28 U. S. C. §2241, alleging, among other things, that the Government holds his son in violation of the Fifth and Fourteenth Amendments. Although the petition did not elaborate on the factual circumstances of Hamdi's capture and detention, his father has asserted in other documents in the record that Hamdi went to Afghanistan to do "relief work" less than two months before September 11 and could not have received military training. The Government attached to its response to the petition a declaration from Michael Mobbs (Mobbs Declaration), a Defense Department official. The Mobbs Declaration alleges various details regarding Hamdi's trip to Afghanistan, his affiliation there with a Taliban unit during a time when the Taliban was battling U. S allies, and his subsequent surrender of an assault rifle. The District Court found that the Mobbs Declaration, standing alone, did not support Hamdi's detention and ordered the Government to turn over numerous materials for in camera review. The Fourth Circuit reversed, stressing that, because it was undisputed that Hamdi was captured in an active combat zone, no factual inquiry or evidentiary hearing allowing Hamdi to be heard or to rebut the Government's assertions was necessary or proper. Concluding that the factual averments in the Mobbs Declaration, if accurate, provided a sufficient basis upon which to conclude that the President had constitutionally detained Hamdi, the court ordered the habeas petition dismissed. The appeals court held that, assuming that express congressional authorization of the detention was required by 18 U. S. C. §4001(a)--which provides that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress"-- the AUMF's "necessary and appropriate force" language provided the authorization for Hamdi's detention. It also concluded that Hamdi is entitled only to a limited judicial inquiry into his detention's legality under the war powers of the political branches, and not to a searching review of the factual determinations underlying his seizure.

Held: The judgment is vacated, and the case is remanded.

Justice O'Connor, joined by The Chief Justice, Justice Kennedy, and Justice Breyer, concluded that although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker. Pp. 14-15.

Justice Souter, joined by Justice Ginsburg, concluded that Hamdi's detention is unauthorized, but joined with the plurality to conclude that on remand Hamdi should have a meaningful opportunity to offer evidence that he is not an enemy combatant. Pp. 2-3, 15.

O'Connor, J., announced the judgment of the Court and delivered an opinion, in which Rehnquist, C. J., and Kennedy and Breyer, JJ., joined. Souter, J., filed an opinion concurring in part, dissenting in part, and concurring in the judgment, in which Ginsburg, J., joined. Scalia, J., filed a dissenting opinion, in which Stevens, J., joined. Thomas, J., filed a dissenting opinion.

You are now almost up-to-speed on what Obama signed. Let's quote the exact language in the Act though:



(a) In General- Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) Covered Persons- A covered person under this section is any person as follows:

(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

(c) Disposition Under Law of War- The disposition of a person under the law of war as described in subsection (a) may include the following:

(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.

(2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)).

(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.

(4) Transfer to the custody or control of the person's country of origin, any other foreign country, or any other foreign entity.

(d) Construction- Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

(e) Authorities- 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.

(f) Requirement for Briefings of Congress- The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be `covered persons' for purposes of subsection (b)(2).


(a) Custody Pending Disposition Under Law of War-

(1) IN GENERAL- Except as provided in paragraph (4), the Armed Forces of the United States shall hold a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107-40) in military custody pending disposition under the law of war.

(2) COVERED PERSONS- The requirement in paragraph (1) shall apply to any person whose detention is authorized under section 1021 who is determined--

(A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and

(B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.

(3) DISPOSITION UNDER LAW OF WAR- For purposes of this subsection, the disposition of a person under the law of war has the meaning given in section 1021(c), except that no transfer otherwise described in paragraph (4) of that section shall be made unless consistent with the requirements of section 1028.

(4) WAIVER FOR NATIONAL SECURITY- The President may waive the requirement of paragraph (1) if the President submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.

(b) Applicability to United States Citizens and Lawful Resident Aliens-

(1) UNITED STATES CITIZENS- The requirement to detain a person in military custody under this section does not extend to citizens of the United States.

(2) LAWFUL RESIDENT ALIENS- The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.

(c) Implementation Procedures-

(1) IN GENERAL- Not later than 60 days after the date of the enactment of this Act, the President shall issue, and submit to Congress, procedures for implementing this section.

(2) ELEMENTS- The procedures for implementing this section shall include, but not be limited to, procedures as follows:

(A) Procedures designating the persons authorized to make determinations under subsection (a)(2) and the process by which such determinations are to be made.

(B) Procedures providing that the requirement for military custody under subsection (a)(1) does not require the interruption of ongoing surveillance or intelligence gathering with regard to persons not already in the custody or control of the United States.

(C) Procedures providing that a determination under subsection (a)(2) is not required to be implemented until after the conclusion of an interrogation which is ongoing at the time the determination is made and does not require the interruption of any such ongoing interrogation.

(D) Procedures providing that the requirement for military custody under subsection (a)(1) does not apply when intelligence, law enforcement, or other Government officials of the United States are granted access to an individual who remains in the custody of a third country.

(E) Procedures providing that a certification of national security interests under subsection (a)(4) may be granted for the purpose of transferring a covered person from a third country if such a transfer is in the interest of the United States and could not otherwise be accomplished.

(d) Authorities- Nothing in this section shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person, regardless whether such covered person is held in military custody.

(e) Effective Date- This section shall take effect on the date that is 60 days after the date of the enactment of this Act, and shall apply with respect to persons described in subsection (a)(2) who are taken into the custody or brought under the control of the United States on or after that effective date.

This brings us to the "signing statement" itself.

Some "progressives" think it doesn't matter. I think they are well-meaning but naive.

The Lawfare blog: "We would also note that, under a plain-language reading, section 1022 would not even cover persons apprehended in the U.S. by the FBI or other law-enforcement officials: That provision applies only to a person "who is captured in the course of hostilities authorized by the AUMF"—and in the case of a domestic FBI or other law-enforcement arrest, presumably neither the arresting entity nor the individual would be engaged in "hostilities authorized by the AUMF." On this reading—which is fortified by the language clarifying that 1022 does not affect FBI authorities—the statute could only apply in the first instance to someone captured by a U.S. agency acting pursuant to the AUMF, which in effect would mean apprehensions by the armed forces overseas."

That's consistent with Sandra Day O'Connor's interpretation, but is it good enough?

Jason Easley, over on PoliticusUSA, posted: "Obama Signing Statement: The NDAA Doesn't Apply To US Citizens," in which he wrote the following:

The NDAA is a terrible law because it forbids the funding to close GITMO. It is a terrible law because the language of the bill contains a predisposition towards indefinite detentions. The language used is the right's attempt to revive the policies of the war on terror. The NDAA is lousy because what it is advocating runs counter to who we are as a people and what this great nation stands for. The NDAA stinks for all of these reasons and many more, but it is NOT lousy because it allows for the detention of US citizens.

The NDAA does a lot of things, but the one thing it does not do is authorize the detention of American citizens. As we head into to 2012, can we finally put this bogus piece of misinformation to bed?

Well, Jason, no.

First, what is a Signing Statement and what is it in this case? Here's one take that mentions Jason Easley's post cited above. This is more "progressive" naivety, although I understand, what with how complicated and underreported this whole process was and remains:

In this case, President Obama is not indicating he intends to ignore the law; rather he is clarifying his interpretation of it. However purists could argue that he should have vetoed the law if he disagreed with it, even though he faced an override of his veto. However, had he done so, the law could have been implemented without the signing statement clarification of what he found to be ambiguous language.


President Obama is not the autocratic president the right pretends he is and the some of the left wish he were. The NDAA signing statement does not change the law; but it does direct the executive agencies, including the Department of Justice, as to how this administration will interpret the law. To wit, according to this administration, it will not apply to US citizens.

(Source: "Reality Check: Breaking Down Obama's NDAA Signing Statement," by Sarah Jones. SodaHead.com. January 2, 2012.)

What do I believe? Well, I agree largely with the ACLU on this (although I take note of Sandra Day O'Connor's opinion and would lean on it against any President trying to "disappear" into military dungeons and Star Chambers any US citizen rather than affording that citizen full due process under the US Bill of Rights):

"President Obama's action today is a blight on his legacy because he will forever be known as the president who signed indefinite detention without charge or trial into law," said Anthony D. Romero, ACLU executive director. "The statute is particularly dangerous because it has no temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield. The ACLU will fight worldwide detention authority wherever we can, be it in court, in Congress, or internationally."

That's if one gets beyond all of the following and more, much more:

  1. The various War Powers issues (For one, is the US in a legal war with al Qaeda absent a formally declared war under the US Constitution? I know it is not.)

  2. Who was ultimately behind 9/11 (Can anyone fighting against those responsible for a treasonous false-flag operation against the US be legally (constitutionally) prosecuted by the US for doing so? No.)

  3. The vague, even missing, definitions of al Qaeda and especially  "al Qaeda affiliates"

  4. The meaning of "substantially supported" in this language: "...substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners...." (If one knows that the US was taken into wars based upon a pack of lies by US citizens (which it was) and if one then does not support said wars but rather argues in favor of those being wrongfully and illegally attacked by the US, then is that one giving support to those being wrongfully and illegally attacked? Further, how much of doing that is necessary under this vague language before that support become substantial? I do not support the US war(s). I stand against those wars and the US citizens who deliberately lied, concealed, and otherwise conspired to cause them.)

  5. The meaning of "aid" in this language: "...including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces." (Aid can mean binding the wounds of someone rather than leaving that one to die. As a Christian, I have a religious obligation to aid the wounded. Under the US Constitution and as an American natural-born citizen, I am guaranteed the right to freely practice my religion -- that the US shall make no law abridging that right. I would "aid" the so-called "enemy.")

  6. The language: "...attack against the United States or its coalition partners." (If a coalition partner is, under the law, wrongfully attacking a US citizen, that US citizen has a secular right to self-defense regardless of the AUMF.)

  7. The term "requirement" given this language: "The requirement to detain a person in military custody under this section does not extend to citizens of the United States." (That term means it is optional. It means the President supposedly can "detain a person in military custody under this section", even "citizens of the United States.")

I don't give the US government leave on any of that.

From the Dictionary of Cultural Literacy:

due process of law

American Politics

The principle that an individual cannot be deprived of life, liberty, or property without appropriate legal procedures and safeguards. The BILL OF RIGHTS and the FOURTEENTH AMENDMENT to the CONSTITUTION guarantee that any person accused of a crime must be informed of the charges, be provided with legal counsel, be given a speedy and public trial, enjoy EQUAL PROTECTION OF THE LAWS, and not be subjected to CRUEL AND UNUSUAL PUNISHMENT, unreasonable searches and seizures, DOUBLE JEOPARDY, or SELF-INCRIMINATION.

Barack Obama's "Signing Statement" (Full Text):

The White House

Office of the Press Secretary
For Immediate Release
December 31, 2011
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.


December 31, 2011.

If that satisfies you, you are way too easily satisfied.

About Tom Usher

Employment: 2008 - present, website developer and writer. 2015 - present, insurance broker. Education: Arizona State University, Bachelor of Science in Political Science. City University of Seattle, graduate studies in Public Administration. Volunteerism: 2007 - present, president of the Real Liberal Christian Church and Christian Commons Project.

5 Responses to Obama's Signing Statement (proper, enough?) and Subtitle D--Counterterrorism, NDAA 2012, Final Version, H.R.1540.ENR

  1. Anonymous says:

    Alternatives. Set the military funding part aside.  Obama vetos the bill, the Senate overides his veto and passes the bill into law. The president doesn't even get a chance for a Signing Statement to give his view on it. The bill was almost a 100% vote in the senate.

    The Patriot act already gave Obama the right to do what is in the NDAA.  He signed nothing that he didn't already have powers to do.

    What would you have done? Knowing full well your veto would put the bill into law anyways?

    • Tom Usher says:

      Regardless of any of that, Barack Obama is on the wrong side of this. However, had he been on the right side, he could have taken the issues to the American people.

      What would I have done? That's an impossible question, as I am who I am. Given what the Americans know and don't know and given who I am, I could never be that President (the President under the current US Constitution).

      The American people need the truth, the whole truth. Barack Obama isn't interested in that.

      I give commentary. It's up to readers to comprehend. I cannot force it.

      • Anonymous says:

        An honest answer for sure.  Taking this to the people would not be pointless, it certainly would have delayed the military funding for a considerable amount of time.
        Would the Senate that voted 86-14 have backed off due to pressure from the people? I sincerely doubt it.  It is good to know that at least one state has started recalls over this.

        I think I should say I am sure we are both heavily against this bill. I would also say Americans never said a word relatively speaking when Bush signed the same thing.

        I do not think hanging your hat on Obama being the problem here works.  However I am willing to see if Obama supports the bill currently in committee to rectify the language to state no Americans are affected

      • Tom Usher says:

        Some senators and representatives were feeling heat even without Obama being on the correct side. The object would have been to get enough to switch to prevent a veto override.

        Obama is just part of the problem.

        "However I am willing to see if Obama supports the bill currently in committee to
        rectify the language to state no Americans are affected."

        Which bill is that? I've been buried under major projects (nice problem) and haven't kept abreast. Anyway, why would Obama find an additional bill useful?
        Obama is leaning on Hamdi now. What bill would change that?

        This whole thing hangs on the Supreme Court. It's not the same group that decided Hamdi, but they'd be insane to be more "conservative" than was Sandra Day O'Connor on it. Stranger things have happened though.

  2. Tom Usher says:

    This post has been updated largely beginning at the words: "That's if one gets beyond all of the following and more, much more:"

Comments are closed.