The NDAA Retroactively "Ass Covers" Some of the More Broadly-Applied Gitmo Detainments Says Lawsuit Plaintiff [Updated/Clarified]

Editor's Note: Due to several transcription errors, this post has been heavily edited. The previous quotes from Tangerine Bolen, which she objected to, have been replaced by quotes Bolen provided over email.

With 500-some pages of text, the 2012 National Defense Authorization Act (NDAA) covers a lot more than just section 1021(b), but the majority of the debates over the bill involve the very reason the four letters N-D-A-A have become shorthand for fears of government power finally crossing a Rubicon. Whether or not that’s really true, the caginess of the government with respect to whom it can indefinitely detain [pdf] is disturbing and demands a clarification that is not being offered. 

Section 1021(b) reads that someone who can be indefinitely detained is:

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.

The government says the controversial bit of the NDAA is nothing new, but seven plaintiffs, including Pentagon Papers leaker Daniel Ellsberg, dissident writer Noam Chomsky, and journalist Chris Hedges, sued in January, arguing that they were under threat. Hedges in particular argued that his First Amendment rights are violated by the NDAA since he has interviewed numerous members of Al-Qaeda and the Taliban, but now fears doing so.

Another plaintiff in Hedges v. Obama is activist Jennifer "Tangerine" Bolen, founder of the pro-whistleblower group RevolutionTruth.org. She worries that her organization's support of WikiLeaks and imprisoned soldier and accused leaker Bradley Manning might also make her or her allies applicable for detainment under the NDAA.

Section 1021(a) of the bill repeats the government's power to go after perpetrators (and those who harbored them, etc.) of the September 11th attacks (put in writing in the joint Authorization for Use of Military Force (AUMF) resolution) but 1021(b) does read an awful lot like it's expanding powers, even if the actual text of the NDAA and Obama administration officials claim it isn't changing anything. (For a good overview of the NDAA up until now, go check out this Young Americans for Liberty blog post.)

Bolen believes part of the subtext to these arguments is that the government wants an excuse to go after Julian Assange and Wikileaks. "They don't want to go after The New York Times," she says, "They’re willing to cherry-pick who they apply indefinite detention to." But once they can get to Assange, this power will "cascade downward" and then people like Bolen or Hedges could be under threat as well.

The government's initial argument was that the powers granted in provision 1021(b)  were exactly the same as those granted by the AUMF. Yet, argues Bolen, if the AUMF and the NDAA are the same, why is the government so desperate to stop this lawsuit? Why did they appeal less than 24 hours after Judge Katherine Forrest’s permanent block of indefinite detainment on September 13? Why do they claim that block could cause "irreparable harm" to the United States? Well, no harm done for the moment. On Tuesday afternoon, the Second Circuit Court of Appeals ruled, and a three-judge panel stayed Forrest's block until a final decision is reached in December. Until then, or until this hits the Supreme Court, indefinite detainment is back on.

The key point about the NDAA, says Bolen, is that it's a retroactive "CYA" — cover your ass. "We believe that the AUMF detention powers were over-broadly applied — subsequently sweeping up innocent people —and definitely people who had nothing to do with 9/11, or are members of Al Qaida or the Taliban — which is the definition of those powers."

In their Tuesday ruling, the Second Circuit judges wrote [pdf] that it was in "the public interest" to grant the government appeal a stay. Part of their reasoning was that the government finally clarified that the plaintiffs had no reason to fear detainment, meaning that they had no standing to sue in the first place.

When the government initially refused to offer assurances that the plaintiffs could not be detained back in March, this made Judge Forrest more sympathetic to the question of whether the seven individuals indeed had standing to sue. Later, in August, seeing that Forrest was indeed going to block indefinite detainment, the government did try to offer assurances that journalists who were independent were under no threat by offering a clarifying brief. This, according to Bolen brought up a lot of questions still for the judge. Bolen says Forrest asked, "Are YouTube videos independent? Are you going to form a panel to decide who is independent?" Forrest was still not satisfied, and in her 112-page ruling she expressed incredulity over the government's failure to make its case.  [Correction: updated language to reflect better accuracy in the timeline of the case.]

The wording in the government's response brief just does not satisfy any of the plaintiffs and opens up more questions over whether the government may actually be considering keeping an eye on journalists who are not seen as "independent."

Bolen, for her part, thinks that the case will make it to the Supreme Court. But it’s up to her and her fellow-plaintiffs to try to change public opinion to make sure NDAA gets thrown out.

"Obama is likely in a position whereby he feels he cannot suddenly deny himself powers on which two administrations have come to rely. He cannot afford a terror attack on his watch, and he is likely convinced he has no choice here. I think he believes that is the case and that he is stuck in a position of political realism that this country does not understand. That does not excuse his willingness to erode civil liberties and undermine human rights just like Bush did — I expected, and expect, him to do better."

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Paul.||

    "Black sites"? That's racist!

  • Sudden||

  • Archduke Pantsfan||

    No, that's Awesome

  • Suki||

    +100

  • Paul.||

    When the government initially refused to offer assurances that the plaintiffs could be detained back in March

    You did mean "initially refused to offer assurances that the plaintiffs coudl NOT be detained..." right?

  • Lucy Steigerwald||

    Yes I do.

  • Paul.||

    She mentions the near-lies that lead to the Iraq war and says that the government is trained to “out-speak everyone” and that’s what they’re doing again. But “It’s less insidious and less horrific than under Bush. Not to excuse Obama, but he inherited a total nightmare…He can’t suddenly deny himself powers…”

    The... guy... swinging... an... axe... at... my... head...is doing it...because....BUSH'S FAULT!

  • califernian||

    this is tragically funny "he can't suddenly deny himself powers" . Why not?

    This is like when they assume it's not possible spend less money. "There's no option but to raise taxes" in order to balance the budget. NO sane person could possibly suggest otherwise.

  • TangerineB||

    Actually, I did NOT say that, and I have requested the record be corrected.

  • Fist of Etiquette||

    He can’t suddenly deny himself powers...

    Awesome.

  • Lucy Steigerwald||

    I couldn't resist including that because it was interesting, but she is still a key part of an awesome lawsuit.

    She thinks Democrats failed to shame Obama into not being horrible on civil liberties, too.

  • Paul.||

    I started typing one comment, then erased it, realizing I really had nothing to say.

    I got nothin'.

  • Killazontherun||

    The day you let having nothing to say stop you from posting the dream dies. You kill the internet!

  • ||

    But what does Sandra Fluke think?

  • Lucy Steigerwald||

    You guys get so much trollier post-PM links.

  • ||

    That's because we've started drinking. Not me, of course. I would never drink and post. But those East Coast commenters are a bunch of lushes, I tell you.

    (Don't tell them I told you that.)

  • ||

    Don't be ridiculous. As we're opening our first bottle of Coors Light, you're tripping balls and doing this:

    http://s10.postimage.org/ny9gj....._music.jpg

  • ||

    Yeah, so, what of it? That's every day after work.

  • shamalam||

    Ok, RPA. That is a funny picture!

  • ||

    You can't laugh at it. Epi might sue for libel and defamation of character.

  • ||

    I'm hiring ProL as I type.

  • Pro Libertate||

    Truth is an absolute defense. However, I'll take your money and harass the offending commenters with insanely burdensome discovery requests.

  • Fist of Etiquette||

    And whoM does she think failed to shame the Democrats into shaming Obama into not being horrible on civil liberties?

  • ||

    Reason staffers.

  • Almanian's Evil Twin||

    I blame Bush

  • Suki||

    Doesn't Obama just need to reverse his "closing" order to make Gitmo "legal?"

  • TangerineB||

    Lucy, I did NOT say President Obama cannot suddenly deny himself powers. Please take out everything you quoted me as saying that is erroneous - it is not enough to leave mis-statments and provide a correction at the end. (I also did not say what your title claims I said, nor did I use the term "black sites").

    My statement was this: Obama inherited a total nightmare in the "war on terror", including 8 years of Bush and co treading on the Constitution, tipping the balance of powers, ignoring the Geneva Convention, and acquitting themselves in such a disastrous manner that our government has created a pandora's box on a global scale.

    I said that I think Obama made the terrible choice of being politically expedient about powers because he chose to accept the national security narrative be pressured by the military - and that he has extended Bush-era assaults on human rights and civil liberties. What I said was that Obama likely feels that he cannot deny himself the dramatically expanded indefinite detention powers upon which the military has come to rely.

    The idea that I would say "he cannot deny himself powers" while I am SUING President Obama is absurd. I am one of the few people at the frontline trying to STOP Obama from having such unchecked powers.

    Please correct the record. I'm happy to get on another call with you to straighten out the facts.

    Thank you

  • ||

    It's been a great day for utterly retardedly deluded comments from Obama supporters. A truly great day.

  • Fist of Etiquette||

    Starship-needing God help you the day Shatner finally missteps and your world view is totally rocked. We'll see what comes out of your pie hole.

  • ||

    How can the man who made this ever misstep? THIS IS WHY YOU ARE A FOOL, FOE.

    I like pie.

  • Pro Libertate||

    Yeah, like that's possible. Shatner is beyond error.

  • Virginian||

    Here's one from my Facebook:

    "Haha nope. He let Romney off the hook and was very professorial. I think Obama was in "this is just the first debate, let's see if Romney implodes with all this energy and if not, re-think for next time" don't you?"

  • Tulpa Doom||

    To bear a Ring of Power is to be alone.

  • Pro Libertate||

    That's a good debate question. "You stumble across the Ring. Do you wield it or toss it into Mount Doom?"

  • scareduck||

    This piece has so many typos, it makes me wonder if it was a audio recording transcribed via Siri.

  • Fist of Etiquette||

    YOU KNEW WHAT SHE MEANT.

  • Lucy Steigerwald||

    FIST!

  • ||

    Does he get to sue you for sexual harassment now?

  • Lucy Steigerwald||

    Yes.

  • Lucy Steigerwald||

    As long as all ladies ever get in on the AM Links class-action suit.

  • Heroic Mulatto||

    DON'T TALK SHIT ABOUT CHRISTINA HENDRICKS!

  • The Immaculate Trouser||

    That one hit a mark, heh.

  • Fist of Etiquette||

    For the record, I'm not litigious. I don't even know the meaning of the word.

    Am I using it right?

  • ||

    Are you being sexist? Is that it? It's not enough that

  • ||

    Wow. This comment box really knows how to piss on a guy's parade. I'll just slither away and drink myself silly now.

  • Pro Libertate||

    Send me $10,000, and you'll begin to understand.

  • Archduke Pantsfan||

    Paging Barfman. Barfman to the courtesy phone.
    http://thinkprogress.org/polit.....8-minutes/

  • Tulpa Doom||

    How does one "tell a myth"?

  • Almanian's Evil Twin||

    "It was a dark and stormy night..." is one way to start.

  • Heroic Mulatto||

    Arma virumque cano is another.

  • Hyperion||

    Whatever you do if you value your sanity, do not read the comments about last nights debates on the NYT site. These people are so delusional that it will make you afraid to walk down the steet tomorrow knowing that there is some possiblity that they may be walking on the same streets.

    Romneys lies! Romneys lies! Not even one of them can tell you anything about one lie that he told, nothing. Oh, and the great dear leader had altitude sickness, he had the flu maybe, he is just worn out from working so hard, he was bullied and it was unfair. My god, do we really have to live with these ignoramuses? Please someone build a starship and let the proglodytes have this rock, no one will ever come here again to live among that species of brain dead hominids, they can't be the same species as the reasonably sane among us, I totally reject that theory. There is something seriously wrong with these creatures.

  • Hyperion||

    street. I know I will never get my edit feature from you, Reason, but I didn't get to where I am today by giving up.

  • thom||

    Seemingly otherwise intelligent people are saying, literally, some of the stupidest fucking things today because they are trying to reconcile their feelings about last night. At least twice today, people who I otherwise respect, have said things so stupid that I don't know if I'll ever be able to take them seriously again.

  • ant1sthenes||

    I was going to say something to this, but then I got distracted by excited Snorgtees girl trying to take her pants off for me on the sidebar. I forget what now.

  • The Last American Hero||

    Please someone build a starship and let the proglodytes have this rock, no one will ever come here again to live among that species of brain dead hominids, they can't be the same species as the reasonably sane among us, I totally reject that theory. There is something seriously wrong with these creatures.

    Then, in 2112, we can come back and retake the Solar Federation.

  • John C. Randolph||

    The NDAA doesn't legalize anything at all. No act of congress trumps the constitution.

    -jcr

  • Almanian's Evil Twin||

    Yeah, OK.

    But what does LeVar Burton think about this?

  • Archduke Pantsfan||

    But Neil Tyson says:

    Cutting PBS support (0.012% of budget) to help balance the Federal budget is like deleting text files to make room on your 500Gig hard drive

    How does an astrophysicist miss the point so badly?

  • ||

    Looks like this guy doesn't deal with the 20 gig text files I deal with regularly.

    BAD ANALOGY

  • thom||

    He knows who is adoring fans are. He's the new Chomsky.

  • ||

    How can you miss HIS point so badly? If he's saying we SHOULDN'T cut the PBS budget, he's wrong. But pointing out that cutting it won't meaningfully reduce spending is entirely true.

  • Coeus||

    Balloon juice is pissed. Someone is intimidating fraudulent voters. (you cannot parody this, I thought I was on the Onion.)

  • ||

    i love stuff like this, because it gets into the psychology aspects as well as the (as sowell would say) vision conflict aspects of different political opinion.

    it's also helpful imo to place one's own political viewpoints into a similar framework and see if i can get to where i would be similarly condemning a differently targeted attack.

    iow, the underlying message here is that posting get tuff on voter fraud billboards is actually a way for the right to make brown people scared to vote. note: not vote ILLEGALLY, just to vote.

    im trying to think of one a con could put against an open border libertarian...

    if a billboard was put up saying "Falsifying residency paperwork and federal documents to make one appear to be eligible to work in the USA is a FELONY!!! bla bla sentence and fine" and that was put up in a heavily hispanic neighborhood, would that be seen by some libertarians (as an analogy to balloon juice) as intimidation towards "undocumented workers?"

    i would suggest many would agree it is.

    iow, same frame, different issue, diferent level of acceptance.

  • ||

    I'm not sure this analogy really works. The sign against illegal immigrants might be worried about by hispanic citizens. Since the worries about illegal immigration mostly concern hispanic immigrants, this makes sense.

    But how would a sign against voter fraud be construed to be a threat against not just legitimate voters, but minority voters specifically? The connection isn't so obvious. And are signs like this exclusively or mostly in minority communities? If not, it seems like a weird overreaction to me.

  • ||

    yea, i agree. i'm just doing the thought experiment, etc. it's not a 1:1 analogy by any stretch. among the left (spend ANY time at DU and you'll see what i mean), it's an article of faith that increased restrictions on voting (ID required, etc.) are motivated by racism.

    similarly, it's an article of faith for them that being againt racial preferences is at a minimum, "soft" if not hard racism.

    but you made a good point i didn't consider and i don't really have an 'answer' for , so props to you.

  • ||

    Yeah, if there was some evidence that minority populations really did worry about being harassed over something like this, it would make more sense. But I haven't heard anything like that outside of political rhetoric ("It's because they hate the poor minorities; plus they want old people and children to die in the streets!"), and I'm not sure what form such harassment would even take.

  • Coeus||

    if a billboard was put up saying "Falsifying residency paperwork and federal documents to make one appear to be eligible to work in the USA is a FELONY!!! bla bla sentence and fine" and that was put up in a heavily hispanic neighborhood, would that be seen by some libertarians (as an analogy to balloon juice) as intimidation towards "undocumented workers?"

    Doesn't work. Nice try though, I know you love to think we're blinded by biases just cause most of us don't like cops. But this example is stupid. Of course it's intimidating "undocumented workers". It's talking about a law that they break. Just as this billboard is intimidating fraudulent voters. Exactly as I said. But not what they said. They said it was intimidating legal minority voters. Wrong on two separate counts.

  • ||

    I'm not sure why you think this is connected to our alleged police biases: dunphy regularly mentions that we're usually pretty good about being unbiased, he just thinks we aren't when it comes to cops.

  • ||

    sorry, for the OT, but police shooting people holding a flashlight or whatever is certainly a reason article subject

    here's some really good well done, robust, data heavy, look into differences in performance between elite and rookie officers when it comes to threat assessment, time to fire, etc. etc.

    want to decrease bad shoots, and especially "lawful but awful" shoots? take heed.

    this is invaluable hard data to complement articles about police shootings, especially those involving threat identification, and disparate decisions as to whether to shoot, how many rounds to shoot, etc.

    and again, as newhall and countless incidents show - cop or or noncop, people perform as they are trained.

  • ||

    i 100 % agree with this statement near the end: Since the type of training a person initially receives often dictates how well they perform in the
    future (Schmidt Lee, 2005; Vickers, 2007) our results suggest that firearms training should change
    from a process that inadvertently teaches novices to fixate the sights of their own weapon first and the
    target second, to a type of training that establishes the line of gaze on the target from the outset, followed
    by alignment of the sights of the weapon to the line of gaze. This change in gaze control would
    114 J.N. Vickers, W. Lewinski / Human Movement Science 31 (2012) 101–117
    lead to a longer QE duration on the target prior to pulling the trigger and should contribute to better
    decision making and performance. If these changes in firearm’s training were implemented then the
    gaze control of novice officers should be similar to that of elite athletes and elite officers from the first
    day of training, thereby increasing the likelihood that they would be able to maintain visual control
    over any situation they encountered. This, in turn, should decrease errors in decision making and improve
    shooting accuracy and may help reduce the tremendous costs that ensue after all officer involved
    shootings (Dumke, 2009; Klinger, 2006).

  • ||

    "In conclusion, we show that at the beginning of a deadly firearms encounter, elite officers fixate
    locations where a weapon is hidden significantly more than rookies, and do this earlier and for longer
    durations. Elite and rookie officers did not differ in the time it took to draw, aim and fire but the elite
    officers performed all three of these actions earlier. In contrast, the rookies were very late performing
    all three actions, indicating critical deficiencies in anticipation, cue detection, gaze control and decision
    making when under pressure. When the attack occurred (or appeared to occur) the rookies
    shifted their gaze to their own weapon in a failed attempt to sight their own weapon, while the elite
    officers never lost sight of the assailant’s moving weapon (or cell phone) before pulling the trigger. We
    therefore conclude that the significant differences in accuracy and decision making observed between
    the elite and rookie officers were due as much, if not more, to deficits in the gaze control and focus of
    attention of the rookies as to any limitations in their physical ability to handle the firearm"

    http://forcescience.org/articles/gaze.pdf

    this is the kind of research that precedes positive change, imo.

  • Coeus||

    That's great and all, but what's the incentive for a change in training? Cops don't even need drop guns anymore. Why undergo more expensive training if you can just say "I thought he was reaching for his waist"?

  • ||

    i am really not sure if you REALLY believe this stuff...

    giving the BOD, there has been already great improvement in training (as i explained ex-post newhall, ex-post FBI shootout with the bank robbers in florida,etc.), which means that, as the stats show - cops are shooting people very very infrequently and the vast majority of shootings are blatantly justified.

    incentives? better results. in an ideal world, cops could tell the unloaded gun from the fake gun and never have to shoot the suicide by cop guy who presents no real threat with his unloaded gun. this isn't an ideal world, but we have already, and we will continue to improve and we will continue to see good results while striving for and imo reaching step by step as we are doing - better results. more and more of those intermediate cases will get better results and less officer injuries, less third party injuries, less flashlight/wallet etc. bad guy injuries etc.

    facts/circs matter. in the vast majority of same, it's a "bad shoot" for me to shoot somebody just because they reach for their waistband. nor do i.

    but given diff facts and circs, it WOULD be. like the clemons example. or in many cases- a felony stop. if cops were shooting people merely for reaching for their waistbands, we wouldn't have such an astonishingly low rate of incidence of officers shooting (at) persons.
    (cont.)

  • ||

    i think the abstract says it all:
    Gaze of elite (E) and rookie (R) officers were analyzed as they faced a
    potentially lethal encounter that required use of a handgun, or inhibition
    of the shot when a cell phone was drawn. The E shot more
    accurately than the R (E 74.60%; R 53.80%) and made fewer decisions
    errors in the cell condition when 18.50% of E and 61.50% of R fired at
    the assailant. E and R did not differ in duration of the draw/aim/fire
    phases, but the R’s motor onsets were later, during the final second
    compared to the E’s final 2.5 s. Across the final six fixations the E
    increased the percent of fixations on the assailant’s weapon/cell to
    71% and to 86% on hits, compared to a high of 34% for the R. Before
    firing, the R made a rapid saccade to their own weapon on 84% of trials
    leading to a failure to fixate the assailant on 50% of trials as they
    fired. Compared to the R, the E had a longer quiet eye duration on the
    assailant’s weapon/cell prior to firing. The results provide new
    insights into officer weapon focus, firearms training and the role of
    optimal gaze control when under extreme pressure.

    in brief, we learn what works, which is what elite officers already do and we TEACH it to rookie officers, thus, at least in regards to gaze dynamics, etc. creating elite results. win for everybody

  • ||

    oh, for those who haven't RTFA, the term rookie and elite are what's used in the article, so i am using them. not making a value judgment

  • Coeus||

    in brief, we learn what works, which is what elite officers already do and we TEACH it to rookie officers, thus, at least in regards to gaze dynamics, etc. creating elite results. win for everybody

    My father was a UOF trainer for decades. I am well aware of the cost involved in sending him to learn new techniques. There was typically a large asset forfeiture required before they would send him anywhere to learn new techniques to teach the deputies. My original point stands.

  • Coeus||

    i am really not sure if you REALLY believe this stuff...

    Why wouldn't I? It happened last month outside my apartment. Dude wasn't even armed, and he was the one who called the cops in the first place.

  • ThatSkepticGuy||

    "dissident writer Noam Chomsky"

    Alas, poor Chomsky. Torn apart by his undying allegiance to Left-leaning totalitarianism and his undying love of suicide bombers.

  • Fist of Etiquette||

    The about the NDAA...

    But this couldn't have been updated?

  • Mr. Gondo||

    Rewrite department, where are you?

  • TangerineB||

    Lucy, I did NOT say President Obama cannot suddenly deny himself powers. Please take out everything you quoted me as saying that is erroneous - it is not enough to leave mis-statments and provide a correction at the end. (I also did not say what your title claims I said, nor did I use the term "black sites").

    My statement was this: Obama inherited a total nightmare in the "war on terror", including 8 years of Bush and co treading on the Constitution, tipping the balance of powers, ignoring the Geneva Convention, and acquitting themselves in such a disastrous manner that our government has created a pandora's box on a global scale.

    I said that I think Obama made the terrible choice of being politically expedient about powers because he chose to accept the national security narrative be pressured by the military - and that he has extended Bush-era assaults on human rights and civil liberties. What I said was that Obama likely feels that he cannot deny himself the dramatically expanded indefinite detention powers upon which the military has come to rely.

    The idea that I would say "he cannot deny himself powers" while I am SUING President Obama is absurd. I am one of the few people at the frontline trying to STOP Obama from having such unchecked powers.

    Please correct the record. I'm happy to get on another call with you to straighten out the facts.

    Thank you

  • ||

    My statement was this: Obama inherited a total nightmare in the "war on terror", including 8 years of Bush and co treading on the Constitution, tipping the balance of powers, ignoring the Geneva Convention, and acquitting themselves in such a disastrous manner that our government has created a pandora's box on a global scale.

    And he's done nothing at all to fix those mistakes, while creating his own abuses. Why was the man elected President if not to fix the mistakes of his predecessor? Isn't that a large part of what the 2008 Democratic platform WAS? Civil rights? All of that is missing from his 2012 platform, as well.

    What I said was that Obama likely feels that he cannot deny himself the dramatically expanded indefinite detention powers upon which the military has come to rely.

    There is absolutely no way to tell what he thinks, except by what he says. And what he says gives no indication he feels he can't stop violating civil rights, let alone that he felt "pressure" over it. And in the end, it doesn't MATTER why he did it. He's not only condoned abuses of power and civil rights abuses, he's EXTENDED them. Your defense of his imagined mindset is basically apologetics to explain why he didn't overturn them while giving him somewhat of an "out" for it. Saying things obviously intended to soften the blows against him severely undermines your criticisms.

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