Senator Kerry and the NDAA -- this is bothering me and I wonder if people here know more UPDATED

[Noisy Democrat]

Last edited Mon Jun 18, 2012, 12:16 PM - Edit history (3)

I apologize that this is not a well-researched post. I'm assuming that some people here know far more than I do and I'm appealing for help. But I can fix it up with some links if necessary. In a nutshell, the National Defense Authorization Act looks scary; it appears to say that the military can haul US citizens away and hold them without trial, indefinitely. However, there's controversy in the blogosphere as to whether that is in fact what it says. Sen. Lindsey Graham seemed to think that indefinite detention without trial was exactly the point -- as he put it, suspects who want a lawyer would be told, "Shut up! You don't get a lawyer." These are probably well-known facts to most people in the liberal blogosphere.

JK eventually voted yes on this thing, though in a floor statement he expressed that he still had some reservations; he said it had been improved (in terms of civil rights concerns) in some ways, though. He also said he had proposed or tried to propose various amendments, none of which passed. I've been trying to find out more about this. I've looked in Thomas and haven't found anything about any proposed amendments, or even any floor statements by JK other than the one he made just before he voted yes. My Thomas skills may be a bit rusty, though.

If anyone has any great links to articles that really seem to nail down what the heck this law says, that'd be helpful. I'm also wondering who insisted that it be written in this way. But the reason I'm appealing for help here specifically is that I'm really wondering about JK's role in passing this and what efforts he made to change it. I'd like to find more than just that one floor statement. I thought someone here might know more about his position on the NDAA.

ETA: People who've known me for a while know that I'm about as diehard a JK supporter as you can be. One of many reasons is that I trust him -- and I don't take that for granted when it comes to politicians. Over the years, I've found that literally every time I hear a rumor that JK voted Yes on some kind of abomination or No on something that sounds great, or that he supposedly did something underhanded, I know that there will turn out to be a reasonable explanation, and there always is. It's usually that the law reads differently than what we thought, or the situation isn't what it appears to be, or he voted No on something because it had a poison-pill attached, etc. I like it that I can trust him to do the right and reasonable thing -- not always the perfect thing, but at least what's reasonable. But here's the thing -- after I say "There has to be a reasonable explanation," I always go and find out what it is. So it's in that spirit that I want to know more about what JK has said about the NDAA, if anything, and also more about what it really means.

ETA: A helpful link provided by Make7 shows that JK introduced two amendments to the bill. However, it looks as if neither one came to the floor for consideration, and the text of the amendments isn't available, apparently for that reason. Still, it's good to see something.

UPDATE: Here is Senator Kerry's statement from the floor on December 15th. I see now that he said he was supporting amendments that would've improved the bill, not that they were in his name.

Mr. KERRY. Mr. President, I am voting to pass the conference report for the National Defense Authorization Act for Fiscal Year 2012, NDAA.

This is not a perfect piece of legislation. But it contains important hard-fought provisions that I am unwilling to jeopardize or risk denying to the brave men and women defending our Nation, and their families. Specifically, this bill represents the year's last opportunity to pass a 1.6 percent across-the-board pay raise for our men and women in the military. The bill also includes a bipartisan provision Senator Collins and I have been working on for over a year to get passed: an effort to protect victims of sexual assault in the military. As a veteran, I have been deeply troubled by what Senator Collins and our colleague in the House, Representative Tsongas, have heard about the alarming incidences of sexual assault in the military--which is why we worked so hard through this bill to strengthen support for sexual assault prevention, legal protection for victims of sexual assault, and assistance for victims.

There are, however, problems with this bill which still concern me. When the bill was on the floor, I fought for amendments that would have stripped troubling detainee provisions out of the bill entirely. I also voted for other amendments that would have significantly narrowed the scope of the detainee provisions. Unfortunately, notwithstanding my votes, those amendments were not adopted by the Senate. The conferees, with our urging, and with the President's veto threat, made some progress in improving that part of the bill. I commend the conferees for working to address concerns of mine and many other Senators, senior administration officials, and the public over the detention-related provisions in the NDAA. While the provisions in the conference report are an improvement over their counterparts in the bill that the Senate passed last week, we need to continue to examine detention law and policy to ensure that the treatment of detainees is consistent with our national security and with core American values.

The progress made in conference on the detention-related provisions is significant enough that I am comfortable voting for the bill, and the White House has lifted its veto threat. Specifically, the conference report includes several changes to the detainee provisions, including a new paragraph that clearly states that nothing in the bill ``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,'' provisions that give the President additional discretion over implementation, and a transfer of the waiver authority from the Secretary of Defense to the President. In its totality, these changes led the White House to state that the ``the language does not challenge or constrain the President's ability to collect intelligence, incapacitate dangerous terrorists, and protect the American people, and the President's senior advisors will not recommend a veto.''

Given all this, as well as the fact that the detention-related provisions of the bill have been improved from a civil liberties perspective, and in light of the other urgent priorities contained in the overall bill, I am voting in favor of the conference report.

[Xipe Totec]

1. Statement by the President on H.R. 1540

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.

http://www.whitehouse.gov/the-press-office/2011/12/31/statement-president-hr-1540

[snot]

2. The references to "my admin" aren't reassuring to me, personally.

First, what about another admin? Second, what recourse do you have if "my admin" does to you what it's said it wouldn't – do you get to sue?

Also, it's a basic tenet of judicial interpretation that you avoid constructions of a law (or a provision of a law) that would render it meaningless. If a legislature went to the trouble to pass a law, you assume they intended it to mean something.

Finally, if there were no grounds for confusion about the effect of the law, why did the Pres. feel the need to make a statement that it's meaningless?

The people who went to the effort of pushing this law through will feel it's worthwhile even if it just helps give them some kind of cover for their bad actions later. "We can't be criminally culpable bec. John Yoo told us it was legal!" -- that sort of thing.

I appreciate Noisy Democrat's questions and esp. the effort to unearth what one of our reps really said or did about this law – we need more of that kind of attention paid.

[Noisy Democrat]

3. Thanks

Yeah, I'm disturbed when it says "My administration will not authorize the indefinite military detention without trial of American citizens...." Shouldn't it be "This law in no way authorizes my administration, or any subsequent administration to subject American citizens to indefinite military detention..."

That is, shouldn't it be that the law prevents the president from locking people up indefinitely without trial? Not that the president says that he won't use that power?

Two sentences later, he seems to imply that he does think that indefinite detention might be illegal, but it isn't 100% spelled out.

I'm going to add a little p.s. to my original post, by the way.

[nofurylike]

5. thank you for giving us that vitally important information, Xipe Totec. nt

[Noisy Democrat]

13. Thanks! I still find the text confusing, but this is a helpful link n/t

[msongs]

4. we are all criminals in the eyes of our elected leadership, subject to drone execution. ya? nt

[TheWraith]

8. No.

And if you contributed anything other than one line bullshit quips, you might be able to understand that.

[Make7]

6. Well, for the text of the amendments and legislation, try these:

• S.AMDT.1175 and S.AMDT.1176 to S.1867
  
  http://thomas.loc.gov/cgi-bin/query/F?r112:1:./temp/~r112c8tHtf:e467116:



• S.AMDT.1312 to S.1867
  
  http://thomas.loc.gov/cgi-bin/query/F?r112:1:./temp/~r112MfVcUD:e287899:



• S.1867
  
  http://thomas.loc.gov/cgi-bin/bdquery/z?d112:SN01867:|/home/LegislativeData.php?n=BSS;c=112|

Not sure if those thomas.gov query links will work from a different computer session. Even if they don't, you have the bill and amendment numbers so you could do your own search. As you can see, the actual bill is a lot of text to look through to find what you are looking for.

[Noisy Democrat]

12. Thanks! n/t

[Noisy Democrat]

14. Well, now I've learned something about linking to Thomas

Apparently if you link search results, the person who clicks on them will get "sorry, your search timed out after 30 minutes" rather than the page you saw. I don't know how to link to Thomas so people can see it, but now I know something, anyway.

ETA: But the 3rd link worked. Excellent! Thanks again!

[TheWraith]

7. The NDAA explicitly says US citizens and lawful residents are not subject to military detention.

Section 1022. It's really that simple.

[eomer]

9. No one claims that section 1022 applies to US citizens.

It is section 1021 that is at issue, not 1022 (when speaking about US citizens).

[Mass]

10. As somebody who lived in Europe, I cannot succeed getting worked up by things like that.

It just surprises me that it shows such a distrust in government (not you ND, but the leftist blogosphere in general).

Personally, I get worked up because this country continue to not have a decent safety net. I get worked up because the Democrats and the progressive groups ignore poverty. Those are things that will affect people's life in a substantial way.

However, I cannot feel mobilized by things like that. This is not that I like them, but I know by experience they will be a lot less problematic for the people that, let's say, death penalty or ridiculously long jail times.

But I think this distrust of government may be a reason why nothing is done on the economic side and why the Tea Party has so much success.

[Noisy Democrat]

11. But we're not supposed to have to trust our government

The idea of having the Bill of Rights etc. is that no matter who is in power, there are limits on what they can do. We the citizens have rights. We don't have to depend on the idea that Obama or Romney or whoever is a good guy. I thought that the AUMF gave Bush the power to lock people up forever without trial, or even have them executed without trial, and I thought that when Obama came in, the nightmare was over. So when people say "This isn't any worse than the AUMF" it seems to me to miss the point.

You may be right, though, that in some parts of the political spectrum, concern about government encroachment is also what drives resistance to taxes and resistance to social safety nets. Personally, I don't mind paying taxes and of course I'm for greater social safety nets.

I'm still wondering what JK has had to say about all this. He *said* he had tried to amend this thing, but I haven't yet found out when or how. Maybe nobody here knows.

[Mass]

15. The government is supposed to represent us, so we should trust it

and expect it to do what we want. This may be the difference. I never believed that all would change because Obama was elected. You're young, so I understand this idealism, but it is not realistic.

What I was trying to say, however, is that you have to define your priorities. I have no time to fight on this, when there are things affecting millions of people in this country that stay untouched because nobody cares. When it comes to healthcare, food, climate change, the civil rights of people are violated every day, and pretty much nobody cares. Just my opinion.

I realize that, having grown up in a different culture that has a very different notion of what government and democracy are, I am less sensitive to these ideas, but it still puzzles me that people spend so much time distrusting their government and so little time fixing it. (The Bill of Rights has become both on the left and right another Bible).

As for your answer, my guess is he may have tried to fix it in conversations in the backroom, but it did not worked out, and there is no record of it. Just my guess, as I do not know.

[Noisy Democrat]

16. Fifty years old is young?

Well, I'm younger than JK, anyway, and he's still looking great and going strong -- I look to him as a role model for how to get older without getting older.

The way I see it, the government is supposed to represent us, so we should all get involved and keep an eye on what our representatives are doing.

There's very clear evidence that the 2004 election was stolen. I know Democrats don't like to talk about it in public -- elected Democrats, anyway, because they don't want to appear ridiculous -- but I think the evidence is overwhelming. If we live in a country in which elections can be stolen so brazenly, with very little outcry from the press or from our elected representatives, why on earth should we trust that in general, the government is functioning well? It seems more likely to me that there are all kinds of forces at work in our government, including people who do not represent our interests at all. I think Senator Kerry is one of the good guys. But I like to know what, specifically, he's doing as one of the good guys. Occasionally he makes a mistake -- apparently the FBI tricked him or his staff into writing language into the cruise ship bill that had the opposite of the effect he intended. So I want to see for myself what he's doing for us.

It seems to me that there's a link between the fact that the government can pass all kinds of frightening laws impinging on our rights and the fact that civil rights are already being violated, not just on paper but in practice, in what is increasingly becoming a police state. I think it's all one package.

ETA: There is a record that JK introduced 2 amendments, but the text of them appears to be unavailable. I would like to know more of his thinking on this law in part because I trust his thinking -- if he thinks the law has been adequately fixed, I'll be inclined to heave a sigh of relief. His comments on the floor suggested that he thought it was better but might still have problems. I'd like to know more about what he thought were the problems.

[Mass]

18. Not sure why, but I though you were much younger than I am.

I checked the two amendments earlier. None of them relates to the topic of the thread. (If you click on the link for the bill, you can access to the amendments through a series of links).

For the rest, democracy is a difficult process, or we would not have Scott Brown as our junior senator (yikes! hopefully not for long now, but Warren will not be perfect either, she just will be better).

Also, and I am not sure I said that before, the law making process is not black and white. Laws are a negotiation process. There may have been things in this law that were important enough for him to vote for it even if this bill has unpleasant aspects. What matters is to understand if these reasons were powerful enough. If not, this is what primaries are for,

[Noisy Democrat]

19. Can you help me find the amendments?

I get this far:


S.AMDT.1176
Amends: S.1867
Sponsor: Sen Kerry, John F. [MA] (submitted 11/17/2011)
AMENDMENT PURPOSE: Purpose will be available when the amendment is proposed for consideration. See Congressional Record for text.

TEXT OF AMENDMENT AS SUBMITTED: CR S7758

Then when I click on CR S7758, the page it takes me to has nothing on this amendment.

ETA: I've found them, and you're right, they have nothing to do with these issues.

[Noisy Democrat]

21. I'm sure he did have good reasons to vote yes

Last edited Mon Jun 18, 2012, 12:38 PM - Edit history (2)

That's part of that thing about how I trust him. But I'd like to know what his thinking is on this law, and what his concerns were or are. Perhaps you're misunderstanding me. It sounds as if you think I'm attacking Kerry, when I simply want to know what's going on. Frankly, if he has concerns, that's reassuring to me because it suggests he's on the ball with this thing. But I'd like to know more about what he thinks it means. Apparently some senators believe that it subjects US citizens to the possibility of indefinite detention without trial, because 30 senators have cosponsored a bill to make that illegal. I'd like to know what Kerry thinks.

Now I'm having a hard time finding the statement that I originally saw in which he spoke of having concerns but didn't spell out what they were. It was a video clip but I can't seem to find it on the CSPAN site. Aargh. ETA: I've found the statement via Thomas and added it to my original post up above.

[Noisy Democrat]

17. p.s. How should we be fixing it?

You wrote it still puzzles me that people spend so much time distrusting their government and so little time fixing it. To me, step one in fixing it is finding out what's going on. Step two is getting involved with groups that push our representatives to do the right thing. What do you advocate we do?

[Mass]

20. By having a true discussion on issues.

Both pols and the media are refusing to debate real issues, and repeat the same talking points. Every pol that challenges the conventional wisdom is crucified. (why do we need to change social security, but nobody will say how).

One reason I like Sanders is that he dares do it. I just wished Kerry did that more, but it is not who he is.

We need more primaries that will show different visions, so that people will be bale to truly choose (I am not advocating primaries with jokers who do not know what they are talking about. I am talking about people who are qualified and have truly different visions about different problems).

I have to leave now, but I do not think I am that far from you. It is just I am approaching the problem with a different lens.

[Noisy Democrat]

22. Another update: The famous Levin video was a hoax

I actually wasn't basing my concerns on the Levin video. I've been concerned because of analyses I've read of what the bill says, and the fact that Senator Feinstein apparently thinks it's dangerous enough that she decided to introduce a bill to make sure that citizens aren't subject to indefinite detention. But since the famous story "Carl Levin says President Obama demanded the right to detain US citizens" is part of the s***storm around this bill and people may have heard it, I wanted to post that when I went to find out more about that part of the story (which I hadn't paid much attention to before), I found out it was all a hoax.

http://www.politicususa.com/ndaa-breitbarted.html

[Denver Dave]

23. Is this related to the Occupy movement

Just wondering if the NDAA, militarization of the civilian police forces and the expanded tendency for mass arrests may be related to reactions to the Occupy movement?

It is time for the public to be aware of what is happening and a good opportunity for that would be if we could have serious questions in the presidential debate and allow the federal matching funds candidates to be heard.

http://www.change.org/petitions/open-up-the-2012-presidential-debates