NDAA Developments

One continuing theme of mine is that criticism of President Obama as little better (or worse) than President Bush just isn't supported by the facts. Some people who should know better have taken their anger or whatever at some of his actions, his inability given various realities or just plain error to lose perspective. I think Obama is a flawed President living in flawed times. That is enough without all the over the top stuff. Are we not supposed to be the reality based community?

The National Defense Authorization Act is an example. An important developments just happened, one that anyone who cares about civil liberties should note while they (like Glenn Greenwald recently did, per usual) sneer at his disrespect for law. As Lawfare, a major resource on such issues, noted:

[T]he Obama Administration issued a policy directive that effectively negates much of the NDAA’s section 1022, the section that purports to require that non-citizens suspected of strong links to terrorism be held in military, rather than civilian, custody. Using a national security rationale, the directive reverses the presumption of military detention that section 1022 had established.

A human rights lawyer noted this along with a Senate bill (credit where credit due, supported by four Republicans) helps "chip way" at the problematic aspects of the NDAA policies involving (so-called) enemy combatant detentions. The former measure:

Drafted in response to concerns that section 1021 of the NDAA authorizes the indefinite military detention of US citizens picked up on US soil, the Due Process Guarantee Act would protect both citizens and lawful permanent residents arrested in the US against being detained indefinitely under a military rationale. It would set a baseline prohibition on indefinite military detention in these cases, allowing it to be used only when Congress explicitly provides for it.

It's nice that four Republicans signed on, but that's but 1/6 of the sponsors. Yet again, one party, with a few exceptions, are on the side of sanity. The fact the Democrats are imperfect is well noted, but perspective warrants keeping that in mind. This is shown by our old friend (and torture supporter; Sen. Franken bluntly says that here) Stephen Bradbury finding (shocker) the bill unconstitutional. Somehow due process protections and setting rules of capture is something Congress does not have the authority or rightful discretion to provide for. The other side really should read the Constitution now and then.

As for President Obama's policy announcement, per Lawfare:

Bottom line: The President has–rightly in my view–read this law virtually out of existence. This is not a breach of faith with Congress, which in negotiations with the administration, so watered the provision down that, as signed, it reasonably lends itself to this reading. In fact, the provision–as Bobby has shown in earlier posts–would actually bear a more aggressive reading than President Obama has given it here.

You know, just like Bush would have done. Now, yes, it is a policy, and President Romney etc. could change it. But, congressional inaction would not have tied his hands there. He still could have under existing law purported to hold citizens, lawful residents and others pursuant to the laws of war or so forth. Wrong or not, the NDAA did not to my understanding do much to add to his power there. As Lawfare noted, it was a bad piece of "symbolism" and in some (not so clear) ways made certain procedures official policy backed by Congress. Not good. Nonetheless, President Obama did something significant here in promotion of civil liberties. Lest we forget it among criticizing those things he did not do. Fair is fair, some people are not.

Meanwhile, some are upset at how President Obama is going after medicinal marijuana dealers in states with permissive laws, after promising not to do so. I have cited this in the past, will forgo linking, but add a comment here pursuant to a somewhat surprising source. "Bill Otis," who provides knee-jerk screeds on a regular basis here, a prosecutor who apparently needs a release valve some place, makes a valid point. President Obama probably honestly made the commitment, but then the excesses of the dealers became too much for him or rather his Justice Department. The article cited after all notes that the more laissez faire approach lasted for two years. It very well might be true that he should have tried harder, but the story to me seems more complicated than some who rail against him as some phony make it out to be.

The times are often depressing and the glass empty sentiments of some are not helping.