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Talk:National Defense Authorization Act for Fiscal Year 2012/Sources

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Note: This is a collection of quoted and paraphrased excerpts from sources about NDAA 2012. Before using any quote, check the original source to make sure it is accurately presented.

Bill contents

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Indefinite detention

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Detainment

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  • "The Obama administration, responding to restrictions imposed by Congress, issued guidelines late Tuesday on when the FBI can take custody of newly arrested terrorism detainees. It's clear the federal government intends to squeeze as much flexibility as it can from the restrictions included in the National Defense Authorization Act for Fiscal Year 2012 aimed at giving the military control of those detainees." http://usnews.msnbc.msn.com/_news/2012/02/28/10534169-white-house-issues-rules-to-keep-terrorism-suspects-under-fbi-control
  • "President Barack Obama issued an order Tuesday giving civilian investigators broad power to handle the cases of U.S. terrorism suspects despite a law passed late last year favoring military custody. The decision is likely to raise hackles among lawmakers who included the provision in the National Defense Authorization Act, and it could provide an election-year issue for Republicans." http://online.wsj.com/article/SB10001424052970203833004577251562112253078.html
  • "The Obama administration released procedures giving civilian prosecutors latitude in determining the rules for how a suspected terrorist is handled during detention, interrogation and prosecution. The administration was required to come with the procedures issued today under a provision of last year’s National Defense Authorization Act. Congress had sought to give the military more control over people accused of plotting against or attacking the U.S. “A rigid, inflexible requirement to place suspected terrorists into military custody would undermine the national security interests of the United States, compromising our ability to collect intelligence and to incapacitate dangerous individuals,” the policy directive says. The guidelines say that any suspected terrorist detained by a law enforcement agency will be handled under standard criminal procedures until it’s determined that the individual is covered by the law and should be turned over to the military. The guidelines repeat President Barack Obama’s previous statement that the directive does not apply to U.S. citizens. The procedures authorize the Attorney General to waive the military custody requirement under the provisions of the law anytime doing so is in the interest of U.S. security, according to a fact sheet accompanying the order." http://www.bloomberg.com/news/2012-02-28/obama-outlines-procedures-for-detaining-suspected-terrorists.html
  • Carl Levin "“Mr. President, we're going to be soon voting on two amendments. The first amendment that I propose, the first Feinstein amendment, restricts the authority that was available and is available currently to the president of the United States under the laws of war. That authority is if an American citizen joins a hostile army against us takes up arms against us, that that person can be determined to be a combat, an enemy combatant. That is not me saying, that's the Constitution. That is the Supreme Court of the United States in the Hamdi case, and I quote, 'there is no bar to this nation's holding one of its own citizens as an enemy combatant.' “The problem with the Feinstein amendment is that current authority of the president to find and designate an American citizen who attacks us, who comes to our land and attacks us as an enemy combatant would be restricted. We should not restrict the availability of that power in the president. Now we have an alternative. Now in the second Feinstein amendment which I ask unanimous consent to be a cosponsor of, in the second amendment we have an alternative. Now it would provide the assurance that we are not adversely affecting the rights of United States citizens in this language. “Senator McCain, Senator Graham, and I have argued on this floor that there's nothing in our bill, nothing, which changes the rights of United States citizens. There was no intent to do it, we did not do it. And what the second Feinstein amendment provides is that nothing in this section of our bill shall be construed to affect existing law or authorities relating to the detention of the United States citizens or lawful resident aliens of the United States or any other persons who are captured or arrested in the United States. It makes clear what we have been saying, this language already does, which is not affect existing law relative to the right of the executive branch to capture and detain a citizen if that law is there allowing it, it remains. If as some argue the law does not allow that, then it continues that way. We think the law is clear in Hamdi that there is no bar to this nation holding one of its own citizens as an enemy combatant and we make clear whatever the law is, it is unaffected by this language in our bill.” http://www.levin.senate.gov/newsroom/speeches/speech/levin-floor-statement-on-compromise-detainee-language-in-ndaa
  • "The White House released rules Tuesday evening waiving the most controversial piece of the new military detention law, and exempting U.S. citizens, as well as other broad categories of suspected terrorists." http://www.nytimes.com/2012/02/29/us/politics/obama-issues-waivers-on-military-trials-for-foreign-qaeda-suspects.html?_r=1
  • "President Obama on Tuesday night issued a sweeping exemption of future terrorism suspects from a congressional requirement that they be held in military custody, part of last year’s hotly contested defense authorization law. The president’s action gives U.S. civilian criminal investigators broad authority to manage the cases of terrorism suspects who are not U.S. citizens but are arrested by federal law enforcement officials. The law passed late last year encouraged that suspects be placed in military custody in such cases." http://www.washingtontimes.com/news/2012/feb/28/obama-loosens-rules-military-custody-terror-detain/
  • "President Barack Obama issued an order Tuesday nullifying much of the impact of a measure Congress passed late last year making military custody the default for some foreign-citizen terrorism suspects. The legislation contained a provision allowing Obama, or any president, to waive the requirement by sending Congress “a certification in writing that such a waiver is in the national security interests of the United States.”" http://www.politico.com/politico44/2012/02/obama-preserves-civilian-handling-of-terrorism-cases-115866.html
  • "The White House had raised concerns the bill could unduly broaden the armed forces' powers over suspected militants, requiring foreigners allied with al Qaeda to be held in military custody even if they were captured in the United States. That would allow terrorism suspects to be kept in military custody indefinitely without trial. U.S. citizens were already exempted from the mandatory military detention requirement. The final version of the bill that cleared Congress gave Obama the flexibility to waive certain provisions and to let him determine who would be held by the U.S. military. Three Republican senators - John McCain of Arizona, Lindsey Graham of South Carolina and Kelly Ayotte of New Hampshire - issued a joint statement citing "significant concerns" about Obama's waivers, saying they would require a hearing in the Senate Armed Services Committee." http://www.chicagotribune.com/sns-rt-usaobama-detention-update-1l2e8dt0du-20120228,0,1667116,full.story
  • "The directive provides more flexibility to the president in deciding whether to use military tribunals to try foreign terror suspects, and is likely to upset lawmakers who included the rule in last year's National Defense Authorization Act (NDAA). "The executive branch must utilize all elements of national power -- including military, intelligence, law enforcement, diplomatic, and economic tools -- to effectively confront the threat posed by Al-Qaeda and its associated forces," Obama wrote in a presidential directive. The White House, he added, "must retain the flexibility to determine how to apply those tools to the unique facts and circumstances we face in confronting this diverse and evolving threat. "A rigid, inflexible requirement to place suspected terrorists into military custody would undermine the national security interests of the United States, compromising our ability to collect intelligence and to incapacitate dangerous individuals," he added. http://www.google.com/hostednews/afp/article/ALeqM5iJskqAuZNZf5vyftZ6N3y9Ac5FnQ?docId=CNG.dca855da9e6c393c07dda475a1590504.e81
  • "There is a waiver in this new legislation, whereby, for the purposes of national security, if the administration says it's safe to release the prisoners, then they can do that without having to discuss it with Congress. It was imposed as part of the various compromises that were involved. The administration knows that it has had it hands absolutely tied by Congress. The last two people who left died. No living prisoner has been released from Guantanamo in the last year. That's not acceptable at all. This provision has definitely been inserted there deliberately to allow a way of getting people out of Guantanamo. It's not going to lead to a rush of releases, but as it stood, until this was passed, there was no way the administration could get anyone out of Guantanamo at all." http://www.truth-out.org/guantanamo-ten-years-later-interview-guantanamo-expert-author-and-filmmaker-andy-worthington/1328120
  • "When the President signed the most recent National Defense Authorization Act (NDAA) in December, he issued a detailed statement making clear that “The fact that I support this bill as a whole does not mean I agree with everything in it.” He noted that he had serious reservations about certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists, and indeed the potential for the bill to interfere with the effective system this Administration has developed was a subject of intense negotiation with Congress -- not to mention one of great concern to many Americans." http://www.whitehouse.gov/blog/2012/02/28/following-through-detention-interrogation-consistent-our-national-security-our-laws-
  • "Section 1021 of the NDAA states members of Al Qaeda, the Taliban and “associated forces” may be subject to indefinite detention, as well as persons who “substantially supported” those forces." The New York Times warned in an editorial that the law could “give future presidents the authority to throw American citizens into prison for life without charges or a trial.” Congressional supporters of the NDAA have argued that these claims are wildly overblown. Representative Mac Thornberry, for example, a member of the House Armed Services Committee from Texas, complained: 1022(b)(1) states: “The requirement to detain a person in military custody under this section does not extend to citizens of the United States.” [This] only exempts American citizens from being covered by section 1022 of the new law, which creates a new presumption of military detention for certain terrorist suspects. Section 1022(b)(1) does not exempt American citizens from the provisions in section 1021, which allow the military detention of broad categories of terrorist suspects. "It does not, therefore, improve on the status quo by extending any new protections to Americans." Further the exemption for American citizens in section 1022 could be understood to mean, by negative implication, that American citizens are covered by section 1021. An effort to amend section 1021 to exempt citizens failed in the Senate. If, in the future, judges decide to refer to the statute’s legislative history to help ascertain its scope, the lack of such an exemption may be determinative. Subsection 1021(e) says that section 1021 does not change existing law “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.” The law makesspecific reference to captures and arrests that occur “in the United States.” To whatever extent the provision serves to curb the law’s scope, it clearly does not stop the law from strengthening and expanding the government’s legal authority to detain indefinitely persons arrested outside of the United States—whether US citizens or non-citizens, and whether the arrests take place in Pakistan or in Paris. "In short, the relevant line is not one of citizenship, but of location." The reference to “existing law” begs too many questions. "It is precisely the scope of existing law that is subject to vociferous debate and continuing litigation. Under the Bush administration, the law was interpreted to allow the indefinite detention of both citizens and non-citizens arrested anywhere in the world, including the United States. While the Supreme Court upheld the military detention of an American citizen captured as part of the armed conflict in Afghanistan, it has yet to hear an indefinite detention case involving anyone—citizen or non-citizen—picked up in the United States. Nor has it handled a case involving a terrorist suspect, as opposed to a participant in a traditional armed conflict. With these fundamental questions still in play, it is disingenuous to say that the law could not be used to detain Americans deemed to be involved in terrorism." Consequences: One, the NDAA at minimum reinforces and strengthens governmental authority to hold indefinitely terrorist suspects arrested outside of the United States, including American citizens arrested outside of the United States. By giving the practice an explicit statutory grounding—and one that is broadly worded—the NDAA makes the practice of indefinite military detention less vulnerable to legal challenge. With two branches of government now firmly behind the practice of indefinite detention, the Supreme Court will be hesitant to strike down as unconstitutional even the most aggressive assertions of the detention power. Two,the law puts great pressure on the president to rely more extensively on indefinite military detention and military commission trials. While it does not actually make military detention mandatory for any category of suspect, given the existence of waivers and other loopholes, it provides Congress with ample grounds for post-hoc criticism of the president’s every detention decision. In a politically-charged situation like the Abdulmutallab case (the case of the so-called “underwear bomber”), the NDAA could make it much more difficult for the president to keep the suspect in the civilian justice system. Particularly if a terrorist attack were successful or close to successful, members of Congress would line up to appear on Fox News to assert that the NDAA’s provisions had been improperly applied. This would likely be true whether or not the suspect was a citizen. Though Obama assured that "my Administration will not authorize the indefinite military detention without trial of American citizens.” President Obama’s statement does not bind any future president." http://verdict.justia.com/2012/01/02/the-ndaa-explained
  • "Whether citizens can be detained indefinitely...“There is not a clear-cut answer, except to say that the NDAA did not actually alter the pre-existing law on this question,” Chesney wrote in an email to The Avalanche-Journal. “The authority to detain citizens was asserted under the 2001 Authorization for Use of Military Force statute back in 2002, and defended in court with mixed results over the following years.” Uneasiness over the NDAA’s wording relating to counterterrorism, specifically detaining people involved with known terrorist groups, has led several politicians to lash out at the law. For instance, U.S. Rep. Ron Paul of Texas, a Republican presidential candidate, has said the law “provides for the possibility of the U.S. military acting as kind of a police force on U.S. soil, apprehending terror suspects, including Americans, and whisking them off to an undisclosed location indefinitely.” But others, including U.S. Rep. Randy Neugebauer, R-Lubbock, say specific language in the bill prevents the law from spreading to Americans. Neugebauer said he will never support a bill restricting U.S. citizens’ rights. He pointed out two sections in the law he said make clear the law is not intended to infringe on citizens’ rights. Section 1021, subsection e states: “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.” Section 1022, subsection b, part 1 states: “The requirement to detain a person in military custody under this section does not extend to citizens of the United States.”" http://lubbockonline.com/local-news/2012-02-03/ndaa-counterterrorism-measures-cause-stir-among-some-politicians#.T04X3fEgeUO

Analysis

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Criticism

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  • ACLU "As we've explained before, for the first time in American history, we have a law authorizing the worldwide and indefinite military detention of people captured far from any battlefield. The NDAA has no temporal or geographic limitations. It is completely at odds with our values, violates the Constitution, and corrodes our Nation's commitment to the rule of law...There is substantial public debate around whether the NDAA could be read even to undermine the Posse Comitatus Act and authorize indefinite military detention without charge or trial within the United States. The ACLU does not believe that the NDAA authorizes domestic military detention. But, chillingly, many in Congress think that it should be used in exactly this way...In the days and weeks leading up to the bill's passage and signing, tens of thousands of you took action through our action center to tell your members of Congress and President Obama that you don't want this president or any future president to militarily detain people captured far from any battlefield. In the wake of the bill's signing, you pledged your support to fight worldwide indefinite detention for as long as it takes, and you asked us how you can do more." http://www.aclu.org/blog/national-security/angry-about-national-defense-authorization-act
  • "A new shift in philosophy has begun to emerge among lawmakers in Washington. Legislation now making its way through Congress would seek to overmilitarize America's counterterrorism efforts, effectively making the U.S. military the judge, jury and jailer of terrorism suspects, to the exclusion of the FBI and local and state law enforcement agencies. As former federal judges, we find this prospect deeply disturbing. Not only would such an effort ignore 200 years of legal precedent, it would fly in the face of common sense.The bill in question, the 2012 National Defense Authorization Act, would codify methods such as indefinite detention without charge and mandatory military detention, and make them applicable to virtually anyone picked up in anti-terrorism efforts — including U.S. citizens — anywhere in the world, including on U.S. soil. Such an effort to restrict counterterrorism efforts by traditional law enforcement agencies would sadly demonstrate that many members of Congress have very little faith in America's criminal justice system." http://articles.chicagotribune.com/2011-10-07/news/ct-perspec-1009-mikva-20111007_1_anti-terrorism-efforts-fight-terrorism-law-enforcement
  • Andrew Rosenthal, New York Times Opinion: "Barack Obama recently signed a bill—the National Defense Authorization Act—making military tribunals a permanent part of the judicial system. That bill also enshrined in law the concepts of indefinite detention, and mandatory military detention and trial for many terrorist suspects. There is a lingering debate about whether it authorizes the extra-legal detention of American citizens. Many lawyers I respect say it does not. I hope they’re right. I don’t think President Obama would deny Americans habeas corpus, but future occupants of the Oval Office might." http://loyalopposition.blogs.nytimes.com/2012/02/07/ten-years-later-torture-indefinite-detention-military-tribunals/
  • Russ Feingold "Where Feingold would like to see progressives pick up the ball again is in the area of civil liberties -- specifically in stopping the use of the so-called state secrets privilege, objecting to indefinite detention and other provisions in the National Defense Authorization Act and closing Guantanamo Bay." http://www.huffingtonpost.com/2012/02/21/russ-feingold-book-gop-2012_n_1289428.html?ref=books&ir=Books
  • "Indefinite detention--"Under the law signed last month, terrorism suspects are to be held by the military; the president also has the authority to indefinitely detain citizens accused of terrorism. While Sen. Carl Levin insisted the bill followed existing law “whatever the law is,” the Senate specifically rejected an amendment that would exempt citizens and the Administration has opposed efforts to challenge such authority in federal court. The Administration continues to claim the right to strip citizens of legal protections based on its sole discretion. (China recently codified a more limited detention law for its citizens, while countries such as Cambodia have been singled out by the United States for “prolonged detention.”)" http://jonathanturley.org/2012/01/15/10-reasons-the-u-s-is-no-longer-the-land-of-the-free/
  • The National Defense Authorization Act for Fiscal Year 2012 (NDAA) bill contains some controversial language that codifies the detention of anyone, including U.S. citizens, who is suspected of being a terrorist or supporting terrorists. To be fair, the language of the bill specifically targets terrorists connected to "al-Qaeda, the Taliban, or associated forces." (But what does "associated forces" mean?) Still, many citizens and advocacy groups are concerned that the U.S. government is increasingly using the label of "terrorism" to violate civil liberties. Of particular concern are the civil liberties that protect against indefinite detention without trial, seizure of assets without hearing and being monitoring (i.e. spied on) without warrant. Moreover, the people targeted under the "terrorism label" are often only suspected (i.e. not proven) of terrorism or even suspected of only supporting terrorists. http://www.ibtimes.com/articles/271024/20111221/ndaa-bill-controversy-who-considered-terrorist.htm
  • "Fast forward to today – in sections 1021 and 1022 of the 2012 NDAA, the US Federal Government has committed one of the worst attacks on your liberty in the history of this country. I never thought I’d see the day when George Bush, John Ashcroft and the PATRIOT Act seemed “moderate.” They weren’t, of course – but in comparison to what Barack Obama signed on December 31, 2011, they’re not even close." http://tenthamendmentcenter.com/2012/02/01/message-to-the-aclu-the-10th-amendment-is-part-of-the-bill-of-rights/
  • "The White House is saying that changes to the law made it unnecessary to veto the legislation. That spin is facially ridiculous. The changes were the inclusion of some meaningless rhetoric after key amendments protecting citizens were defeated. The provision merely states that nothing in the provisions could be construed to alter Americans’ legal rights. Since the Senate clearly views citizens are not just subject to indefinite detention but even execution without a trial, the change offers nothing but rhetoric to hide the harsh reality. The exemption for American citizens from the mandatory detention requirement (section 1032) is the screening language for the real section, 1031, which offers no exemption for American citizens from the authorization to use the military to indefinitely detain people without charge or trial. Section 1031 only contains a meaningless provision stating “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.”" Seven reasons: 1, the provision was added after an amendment to exempt citizens was defeated by the Senate something courts will likely consider; 2, the Senate put a clear exemption in the mandatory detention provision for citizens but not in the discretionary detention provision; 3, after the exemption for citizens was defeated, the same Senators who voted to deny any exemption proceeded to vote for this language; 4, Obama stated “I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.” He does not deny that he has such authority . . . only that he does not intend to use it; 5 Levin admitted that the White House insisted on eliminating the exemption for citizens; 6, many of the members expressed their understanding that the provision authorized the indefinite detention of citizens...At least Senator Lindsey Graham was honest when he said on the Senate floor that “1031, the statement of authority to detain, does apply to American citizens and it designates the world as the battlefield, including the homeland.”; 7, the language that was ultimately put into the bill was standard cover language for Senators who knew that they would be criticized for voting for the law. Indeed, when Levin referred to the language, he insisted that it would merely permit what is already permitted by law “whatever it may be.” "Levin's office responded to criticism in an email saying, “if the bill did what some of its critics claim, I would have led the opposition. . . . It does not prohibit civilian trials for terror suspects. It does not strip the FBI and other civilian law enforcement agencies of their authority. It does not allow the military to make arrests on U.S. soil. It does not enact new authority to hold U.S. citizens without trial or charge. It does not provide for indefinite detention of citizens without access to civilian courts.” However, this law gives new detention powers and the Senate chose not to exempt citizens — and the President himself acknowledged the ability to indefinitely detain citizens in his pledge not to use it. http://jonathanturley.org/2012/01/16/indefinite-detention-of-citizens-a-response-to-senator-carl-levin/
  • "But the law has angered libertarians and conservatives, who see its authorization of indefinite detention without trial and military custody of terrorist suspects as a frontal assault on the Bill of Rights. Opponents of the new law fear that it will further increase executive authority at the expense of the courts, prevent the United States from ever closing Guantánamo, and expose Americans to arbitrary arrest and indefinite detention. Indeed, such fears are founded. To meet some of these concerns, the Senate House Conference Committee, a body that reconciles Senate and House drafts of new legislation, inserted language in the final version of the bill excluding U.S. citizens and lawful permanent residents from military custody. The Senate rejected efforts to exclude U.S. citizens from indefinite detention. Even in the absence of the NDAA, terrorists have not escaped punishment. In fact, prosecutors obtained convictions in almost 90 percent of the terrorism-related cases. And most of the men involved in terrorist plots are now in prison for the rest of their lives. Instead, the bill states only that it will not alter existing law, but existing law on detention is not settled. In his signing statement, Obama promised that his administration "will not authorize the indefinite detention without trial of American citizens." A future president might not be so inclined. A fair way to assess this bill would be to ask, had this law been in effect since 2001, what would it have achieved? In sum, even in the absence of the NDAA, terrorists have not escaped punishment. In fact, prosecutors obtained convictions in almost 90 percent of the terrorism-related cases. And most of the men involved in terrorist plots are now in prison for the rest of their lives. The legal process that put them there was entirely transparent. Stripped of their political pretensions, those charged with terrorism-related crimes have been brought before the courts as ordinary criminals. Judges and juries decide their guilt not on their basis of the defendants' beliefs but on the basis of their actions. Whether indefinite detention without trial or military custody for the small number of accused would have produced a significantly better outcome is debatable...To maintain public support for its current counterterrorist program and to defend against future criticism, the FBI has carefully cast its efforts as criminal investigations that lead to prosecution in ordinary courts. But the new legislation's proponents see this process as inadequate. One of their principal arguments is that regular trials allow terrorist suspects to "lawyer up," thereby depriving authorities of valuable information. The evidence indicates otherwise. Those arrested in the United States or returned there for trial have proved to be treasure troves of information. They can negotiate information for sentencing leniency or other considerations...It is unclear whether, under the NDAA, each [arrested] group would be separated upon arrest or investigated individually, whether the evidence detainees provide under military interrogation would be admissible in civilian trials against the others, or whether the fact that some suspects would be held in military detention would prejudice juries in the trials of the others. The legislation could also chill information sharing among federal, state, and local law enforcement. The new bill could also adversely affect popular attitudes in the communities in which radicalization and jihadist recruitment occur... the NDAA could also damage international cooperation. Finally, the NDAA muddies the endgame of the War on Terrorism. Congress laid down the legal foundation for the current campaign against al Qaeda and the Taliban one week after 9/11 when it passed the Authorization for the Use of Military Force Resolution. The AUMF authorizes the use of military force to kill or capture those responsible for 9/11 and to prevent future international terrorist attacks. The NDAA allows the detention of terrorist suspects "until the end of hostilities," as authorized by the AUMF. It is not clear when and how the war on al Qaeda and the Taliban will end. http://www.foreignaffairs.com/articles/137070/brian-michael-jenkins/the-ndaa-makes-it-harder-to-fight-terrorism?page=show
  • Japanese-Americans marked the 70th anniversary of their World War II internment. In his keynote speech at the event, Robin Toma, executive director of the Los Angeles County Human Relations Commission, drew parallels between the Feb. 19, 1942, order by Franklin D. Roosevelt and a law signed by President Barack Obama last December.In his keynote speech at the event, Robin Toma, executive director of the Los Angeles County Human Relations Commission, compared the Feb. 19, 1942, order by Franklin D. Roosevelt and the 2012 NDAA. The NDAA, "has provisions that allow our president to authorize indefinite detention of any person in the U.S. or abroad. . . . I think that is an immediate connection to what we are doing here today," Toma said. http://www.japantimes.co.jp/text/nn20120221a8.html
  • "A decade ago, President Bush authorized the detention without charge of alleged terrorist suspects. It had been decades since the United States had detained people without charge or trial on national security grounds. The last time was during World War II when thousands of Japanese-Americans were unjustly detained in internment camps. The U.S. has since acknowledged this mistake, paying reparations to those wrongly detained. The Bush system of indefinite detention established at Guantanamo and elsewhere attempted to stand outside and circumvent the rule of law. This system has failed to prosecute more than a handful of terrorist suspects, while wrongfully detaining hundreds more. Yet Congress is now poised to make this system a permanent feature of U.S. law." Civilian justice system effective, extra-legal system abusive and lethal, bad for international reputation, too much power to the military, limits standing as a model of human rights, negotiated in secret, opposed by Sec Def Leon Panetta. http://www.salon.com/2011/11/28/is_guatanamo_forever/singleton/
  • "Insofar as it affirms “existing law” as the basis for federal detention policy, the NDAA does not itself dramatically expand the government’s power to detain U.S. citizens indefinitely. The bad news, however, is the government has essentially already claimed this authority, and the NDAA will only provide more legal cover for the executive branch to further undermine habeas corpus." There was, in other words, an opportunity to clear up this mess, but instead Congress left the door open for the indefinite detention of citizens. For this reason, President Obama expressed “serious reservations” regarding the NDAA. He assured Americans in a signing statement that “my administration will interpret section 1021” in a way that “complies with the Constitution.” However, the president did not say that NDAA protects American citizens, but only that he will “interpret” it as such. As the noted law professor Jonathan Turley explains, the president does not deny that he has the authority to detain citizens – only that he will not exercise it. It would be more accurate to say that although the Supreme Court has yet to fully resolve this issue, the NDAA ensures that future detentions will face fewer obstacles in the Court. 2009 GBay Detainee Litigation filing, AUMF authorizes detainment of 9/11 actors or supporters, but also “The President also has the authority to detain persons who were part of, or substantially supported Taliban or al-Qaida forces or associated forces.” Language was the base of NDAA "Of special concern is the administration’s contention that “it is not possible” to define the “precise nature and degree of substantial support, or the precise characteristics of associated forces.” Since these undefined categories are now, verbatim, part of the NDAA, it opens the door for the indefinite detention of a category of people the government is unable to define. To suggest that these undefined categories cannot be applied to U.S. citizens is at best naïve." i.e. Ali_Saleh_Kahlah_al-Marri. but Habeas rights where upheld by courts have been negated by future legislation, and Appeals court for D.C. hasn't approved a habeas case in over 1.5 years."A well-intentioned bill currently under consideration in the House Committee on Foreign Affairs would repeal section 1021, but this is insufficient. The NDAA still specifically states, “Congress affirms the authority of the President…pursuant to the Authorization for the Use of Military Force.” To put this matter to rest once and for all, Congress should support the repeal of Section 1021 of the NDAA and strengthen the Non-Detention Act by passing the Due Process Guarantee Act, which is currently being considered by a Homeland Security subcommittee.Of course, even this is inadequate, as the United States continues to detain scores of non-citizens improperly. Detainment without charge – of citizens and non-citizens alike – erodes centuries of once-strong democratic foundations. Congress must act immediately to end it." http://www.eurasiareview.com/11022012-the-ndaa-and-the-militarization-of-america-analysis/
  • Greenwald http://www.salon.com/2011/12/16/three_myths_about_the_detention_bill/singleton/

Support

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  • "The first is whether certain provisions in the law give the president and the Pentagon the power to detain American citizens in a military facility, possibly for life, without a trial. Lawyers I talked to today said that the bill is pure mush in a lot of areas, including this one. The bill does not require military custody for American citizens suspected of membership with Al Qaeda or an allied group, as it more or less does for foreigners. (Note, by the way, that this is all about suspicion, not proof.) But neither does it prohibit military trial or detention of American citizens. It’s stunning that the president is willing to sign a bill that might effectively turn the right of habeas corpus into a mere privilege—even for citizens." http://loyalopposition.blogs.nytimes.com/2011/12/15/more-rubble-from-the-military-detention-cave-in/
  • "[NDAA 2012] also includes several policy provisions regarding the handling of al-Qaeda and Taliban terrorists. Although we have previously expressed concerns regarding NDAA provisions relating to transfer restrictions for foreign detainees held at Guantanamo,[1] section 1021 of the NDAA contains important and constructive language that strengthens America’s continuing fight against terrorists. Some organizations[2] and individuals[3] have criticized section 1021, and some have claimed that this bill creates or expands federal authority to detain U.S. citizens indefinitely and without due process. Those claims are false. The NDAA has not impacted the conditions under which a U.S. citizen may (or may not) be detained. In fact, section 1021 of the NDAA is explicit: The law regarding how U.S. citizens are handled, including the right to habeas corpus, is the same today as it was the day before it was passed.... So, why was section 1021 necessary, since it does not seem to change the status quo?Section 1021 essentially codifies the same detention language used by both the Bush and Obama Administrations that has been upheld by federal courts.[9] Ten years after passage of the AUMF, this helps ensure that the military continues to have the authority to hunt down and detain al-Qaeda terrorists wherever they may hide. In summary, the NDAA detainee provisions do not create or expand the government’s ability to detain U.S. citizens. In no way does the NDAA negatively impact or change the constitutional rights of U.S. citizens. Instead, section 1021 strengthens the military’s authority to detain individuals who are members of or substantially supporting al-Qaeda, the Taliban, and associated forces. Misinformation regarding the impact of section 1021 should not detract from this significant step toward reinforcing the legal underpinnings of the war against terrorists." http://www.heritage.org/research/reports/2012/02/facts-about-the-national-defense-authorization-act-and-military-detention-of-us-citizens
  • Representative Thornberry http://thornberry.house.gov/blog/?postid=272661
  • Representative Griffin http://www.youtube.com/watch?v=sZdU3xnn-lQ&feature=youtu.be
  • Lawfare part I http://www.lawfareblog.com/2011/12/the-ndaa-the-good-the-bad-and-the-laws-of-war-part-i/
  • Lawfare part II http://www.lawfareblog.com/2011/12/the-ndaa-the-good-the-bad-and-the-laws-of-war-part-ii/

NDAA sponsors and opponents

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Bills seeking to clarify or reject NDAA

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  • "On February 21, 2012, Utah State Senator Todd Weiler (R-Woods Cross, left) submitted S.C.R. 11, a resolution calling for the Congress to “repeal or clarify Sections 1021 and 1022 of the National Defense Authorization Act for Fiscal Year 2012.” The Utah lawmakers behind this measure “express disapproval” of the NDAA, specifically the provisions permitting the indefinite detention of American citizens. The bill calls on members of Congress to uphold their oath of office and “to protect the rights guaranteed by the United States Constitution and the Utah Constitution.”"
  • "Utah lawmakers are urging Congress to repeal the National Defense Authorization Act, alarmed that the bill could permit the indefinite detention of U.S. citizens. A resolution making its way through the Utah House requests that Congress either repeal or clarify the intent of the act “to protect the rights guaranteed by the United States Constitution and the Utah Constitution.”" http://www.sltrib.com/sltrib/politics/53598367-90/utah-federal-act-bill.html.csp
  • "On January 16, Virginia Delegate Bob Marshall (left) introduced HB 1160, a bill designed to "prevent any agency, political subdivision, employee, or member of the military of Virginia from assisting an agency or the armed forces of the United States in the investigation, prosecution, or detainment of a United States citizen in violation of the Constitution of Virginia." After being passed on Valentine’s Day by an overwhelming majority (96-4) in the House, the bill was sent to the Senate for deliberation by that chamber" http://www.thenewamerican.com/usnews/constitution/11025-virginias-ndaa-nullifying-bill-being-deliberated-by-a-split-state-senate
  • After voting for the National Defense Authorization Act last year, U.S. Rep. Tom Rooney is taking a second look at some of its controversial provisions. "White House and Senate sponsors maintained that the Authorization for Use of Military Force already grants presidential authority for indefinite detentions. NDAA states that Congress "affirms" the authority and makes specific provisions as to the exercise of it.... Critics claim that NDAA would permit the president to use the military to indefinitely hold U.S. citizens arrested on American soil. Andrew Nappi, head of the Florida Tenth Amendment Center, calls NDAA "a direct assault on the Bill of Rights." "It says the administration is not required to keep detainees in custody, but it doesn't prevent them from doing so. There is a problem with the language," Nappi said. Only three of Florida's 25 congressmen voted against NDAA -- Bill Posey, R-Rockledge; Connie Mack, R-Fort Myers; and Alcee Hastings, D-Miramar. But two other congressmen -- Reps. Dennis Ross, R-Lakeland; and Steve Southerland, R-Tallahassee -- have co-sponsored House Resolution 3676, which seeks to clarify NDAA's language. "If there was no problem with the wording of the law, why are there 54 co-sponsors of a bill seeking to clarify it?" Nappi asked." http://www.sunshinestatenews.com/story/rep-tom-rooney-taking-second-look-ndaa-detentions
  • "With opponents on Capitol Hill unable to keep President Obama from signing the controversial National Defense Authorization Act, lawmakers in Washington State are proposing a bill that would block its dangerous provisions from themselves. Five Republican lawmakers in the state of Washington have proposed a bill that would keep the provisions that permit the president from indefinitely detaining American citizens from applying to state residents. Despite widespread opposition, President Obama signed the National Defense Authorization Act for Fiscal Year 2012, or NDAA, into law on December 31, 2011. In authorizing the bill, President Obama added a signing statement insisting that he would not abide by the provisions that permit the unconstitutional actions guaranteed under the law. Even with this addendum, however, critics fear that this president — and any future ones — will use the bill to break down the civil liberties of Americans." http://rt.com/usa/news/washington-ndaa-bill-state-389/
  • "State and local officials in surging numbers are telling Washington they simply won’t cooperate with any plans to detain Americans the federal government may choose to describe as “belligerents.” The issue centers on provisions in the National Defense Authorization Act of 2012, signed by President Obama, for the indefinite and rights-free detention of those Washington cites as belligerents, whether American citizens or not." http://www.wnd.com/2012/02/states-prepare-brakes-on-citizen-detention-option/
  • "That section empowers the President to detain such persons indefinitely without trial or to try them before a military court or to transfer them “to the custody or control of the person's country of origin, any other foreign country, or any other foreign entity.” Sen. Mark Udall introduced an amendment to modify this section, and his amendment was voted down on Tuesday. Sen. Rand Paul has introduced an amendment to delete this section entirely, and on Tuesday, he had the following exchange with Sen. John McCain, who is co-sponsoring the bill. Sen. Paul: “My question would be under the provisions would it be possible that an American citizen then could be declared an enemy combatant and sent to Guantanamo Bay and detained indefinitely.” Sen. McCain: “I think that as long as that individual, no matter who they are, if they pose a threat to the security of the United States of America, should not be allowed to continue that threat.”" http://www.progressive.org/mccain_says_american_citizens_can_be_sent_to_guantanamo.html
  • "Washington -- Sen. Dianne Feinstein today will challenge a law signed by President Obama that allows the military to arrest and imprison, without charge or trial, Americans suspected of terrorism. The California Democrat has argued that the detainee provisions of the National Defense Authorization Act are a contemporary version of a World War II executive order that sent about 110,000 Japanese Americans to relocation camps throughout California and the West in what is considered one of the most shameful episodes in U.S. history. Feinstein will chair a Senate Judiciary Committee hearing on a bill she is sponsoring, the Due Process Guarantee Act, that would change the detainee portions of the law that the president signed in December. The bill has 24 co-sponsors including four Republicans, Mark Kirk of Illinois, Mike Lee of Utah, Rand Paul of Kentucky and Jerry Moran of Kansas. http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/02/28/MNKS1NDCIE.DTL&tsp=1
  • "The Tenth Amendment Center reports that “lawmakers in Maryland, Oklahoma, Tennessee and Washington” also are considering laws or resolutions pushing back against NDAA detention plans. “Resistance to indefinite detention without due process is not limited to states,” the organization reported today. “Six local governments have passed resolutions condemning sections 1021 and 1022 of the NDAA.” The report said that just this week, the town council of Macomb, N.Y., unanimously adopted such a statement, and in Fairfax, Calif., officials approved a resolution on a 4-1 vote. New Shoreham, R.I., also adopted a resolution, as have three local governments in Colorado." http://www.wnd.com/2012/02/states-march-forward-on-anti-detention-campaigns/
  • "On February 3, Oklahoma Rep. Charles Key (R-Oklahoma City, left) offered a bill that would officially request that the Congress of the United States repeal Sections 1021 and 1022 of the National Defense Authorization Act (NDAA). Furthermore, the legal effect of those two sections would be void in Oklahoma." http://www.thenewamerican.com/usnews/constitution/10811-oklahoma-legislator-introduces-ndaa-nullifying-resolution
  • "Lawmakers in Washington State joined a growing nationwide rebellion this week against the federal government’s purported new power to indefinitely detain Americans suspected of certain crimes under the 2012 National Defense Authorization Act (NDAA). Legislators in Virginia, Rhode Island, Tennessee, and other states — as well as a broad coalition of activists spanning the entire political spectrum — are also working to kill what critics call the “treasonous” usurpation. Dubbed the “Liberty Preservation Act,” HB 2759 seeks to protect the people of Washington State from the unconstitutional provisions of the NDAA — most notably the astounding and unprecedented federal claim that the U.S. government may now legally detain an American citizen indefinitely with no access to a lawyer or a trial, let alone a jury." http://www.thenewamerican.com/usnews/constitution/10740-washington-state-lawmakers-join-war-on-ndaa-indefinite-detention
  • Virginia "In the Old Dominion, where on February 14 an impressive majority (96 out of 100 members) of the Virginia House of Delegates passed HB 1160, a bill that prohibits agents of the state government from “assisting an agency of the armed forces of the United States in the conduct of the investigation, prosecution, or detention of a citizen in violation of the United States Constitution, the Constitution of Virginia, or any Virginia law or regulation.” The bill was sponsored by committed constitutionalist Virginia Delegate Bob Marshall. When asked by The New American what prompted him to author this legislation, Marshall referred to his "oath to uphold the U.S. and Virginia Constitutions. "They say this law [the NDAA] is designed to fight terrorists. You don't defeat terrorists by adopting their tactics." "I will be faithful to my calling to stand against these predators who would sell their birthright for a mess of pottage," he added." http://www.thenewamerican.com/usnews/constitution/10916-virginia-house-passes-ndaa-nullifying-bill-other-states-join-fight
  • "The Utah House is currently considering legislation that would publically put down Congress for drafting the National Defense Authorization Act for Fiscal Year 2012, or the NDAA. The United States House and Senate passed the NDAA late last year before sending it to the White House for President Barack Obama to approve on December 31, 2011. Although the legislation legitimizes the use of funds for the US military to spend throughout 2012, it also includes some controversial provisions that grant the Executive Branch the power to indefinitely detain Americans considered terrorists in the eyes of the government." http://rt.com/usa/news/utah-ndaa-legislation-act-435/
  • "Earlier this month, Senator Brian Nieves (R-District 26, pictured above) introduced SJR 45, a bill which would place before the citizens of Missouri the opportunity to vote on an amendment to the state constitution forbidding the legislative, executive, and judicial branches from “recognizing, enforcing, or acting in furtherance of any federal action that exceeds the powers delegated to the federal government.”" http://www.thenewamerican.com/usnews/constitution/10745-missouri-state-senator-introduces-nullification-bill
  • "With a growing number of Americans becoming alarmed at the recent passage of the National Defense Authorization Act because of its provisions allowing American citizens to be indefinitely detained and denied due process, some states and even counties are taking action. The state of Rhode Island, as well as Colorado's El Paso County, have drafted resolutions to nullify the NDAA, a step that other states and counties are soon expected to follow. Likewise, the state of Montana has launched an effort to recall their Senators — Democrats Max Baucus and Jonathon Tester — as well as Republican Congressman Denny Rehberg, all of whom voted for the NDAA." http://www.thenewamerican.com/usnews/constitution/10650-montana-launches-recall-efforts-against-ndaa-supporters
  • "State Representative Charles Key of Oklahoma has introduced a resolution drafted by the legal team of the Patriot Coalition and the Oath Keepers, which includes Fry and Stewart Rhodes, the founder of Oath Keepers and a graduate of the Yale Law School. The bill officially requests that the U.S. Congress repeal Sections 1021 and 1022 of the NDAA. Furthermore, the legal effect of those two sections would be void in Oklahoma." http://www.libertynewsonline.com/article_301_31545.php

Activism

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Miscellaneous

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Asia-Pacific readiness

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  • 'The Defense Department’s new strategic shift toward the Asia-Pacific region will solidify longstanding partnerships, build on newer ones, and allow the military to address security challenges in the area, the commander of U. S. Pacific Command said today....The admiral said he is aware of a proposal to put one of three pre-positioned Marine Corps squadrons in the Pacific on decreased readiness status, but said they will not be on Guam or Diego Garcia. The 2012 National Defense Authorization Act requires the Marine Corps commandant and secretary of defense to certify that the change will not affect readiness." http://www.defense.gov/news/newsarticle.aspx?id=67360

Drones

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Counterfeits

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  • Washington D.C. - At the opening of the PACOM-TRANSCOM hearing before the Senate Armed Services Committee, Committee Chair Senator Carl Levin said: "In the current National Defense Authorization Act, we acted against counterfeit electronic parts in defense systems, most of which came from China." http://www.pacificnewscenter.com/index.php?option=com_content&view=article&id=21314:senator-levins-opening-statement-at-pacom-transcom-hearing&catid=45:guam-news&Itemid=156
  • "On Dec. 31, 2011, US President Barack Obama signed the fiscal year 2012 US NDAA (National Defense Authorization Act), in part to try and make members at all tiers of the defense supply chain accountable and to encourage counterfeit risk mitigation procedures. The act means contractors are now responsible for detecting and avoiding the use of counterfeit or suspected counterfeit electronic parts, while making them face the financial burden of fixing any problems caused if fake parts are found. It also demands the implementation of qualification procedures and processes to weed out fakes by using only trusted and authorized suppliers and testing equipment with tools able to analyze and assess parts." http://www.edn.com/article/520915-Counterfeit_parts_putting_military_at_risk.php
  • "To help combat the problem, President Obama on December 31, 2011, signed the fiscal year 2012 U.S. National Defense Authorization Act (NDAA), which adds regulations for counterfeit part detection and avoidance. Members at all tiers of the defense supply chain must put counterfeit risk mitigation procedures in place and certain steps must be completed within 270 days of the president’s signature.  New defense regulations include: Contractors are now responsible for detecting and avoiding the use or inclusion of counterfeit electronic parts or suspect counterfeit parts; Contractors are also responsible for any rework or corrective action that may be required to remedy the use or inclusion of such parts; Defense contracts will no longer allow the cost of counterfeit electronic parts and suspect counterfeit electronic parts or the cost associated with rework or corrective action to resolve the use or inclusion of such parts; Qualification procedures and processes must be established to use trusted suppliers and procure electronics from authorized suppliers"..."To achieve compliance with the new NDAA requirements and avoid the significant cost they may now incur for counterfeit incidents, companies in the military/aerospace electronics industry must obtain systems and data to analyze, assess, and act on counterfeit and suspect counterfeit electronic parts. They also need to know qualified and authorized government suppliers in order to use trusted suppliers and avoid those that are risky. With thousands of parts and suppliers scattered across programs and throughout the supply chain, this will not be easy. By making use of available tools and ongoing reports for counterfeit, substandard and high-risk parts, electronics makers can cut costs, avoid risk, and expedite NDAA compliance. http://electronicsfeed.com/news/1644
  • "The recently enacted National Defense Authorization Act of 2012 (NDAA) is taking aim at defense contractors who fail to screen their equipment for counterfeit parts, creating the potential for civil and criminal liability for contractors who don’t detect or avoid counterfeit electronic parts in military equipment. These provisions come on the heels of a Senate report that found counterfeit parts –mostly from China— are finding their way into military equipment ranging from helicopter night vision systems to Air Force cockpit displays." http://www.forbes.com/sites/gregorymcneal/2012/02/14/ndaa-may-put-contractors-in-prison-for-counterfeit-parts/

Iran

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  • "A U.S. government report on the global oil markets due on Wednesday could help determine how tough the Obama administration will be enforcing sanctions against Iran and provide information it needs to combat rising oil prices. The Energy Information Administration Wednesday morning will give a snapshot of global petroleum prices and production in countries besides Iran. The report, which the Obama administration pushed for, is required by the National Defense Authorization Act spelling out the Iran sanctions, signed into law two months ago." http://www.chicagotribune.com/news/politics/sns-rt-us-usa-eia-irantre81r1rg-20120228,0,3657389.story
  • "Under applicable provisions of the new law, President Obama may punish international firms which buy oil from Iran. The President has an out, however, if he believes that the imposition of such penalties is driving up the price of crude. " http://www.thenewamerican.com/usnews/foreign-policy/10825-new-iran-sanctions-president-signs-executive-order-citing-ndaa-authority
  • "Since the passage of US legislation sanctioning the Central Bank of Iran and decision by the European Union to ban imports of Iranian crude, attention has been focused on the country’s oil sales and the impact increased Western pressure will have on Tehran’s export revenue. But so far it looks like the most significant trade disruptions are occurring on the import side instead. In the past week Indian firms have held up wheat and rice shipments and Singapore-based traders have stopped selling Malaysian and Indonesian palm oil out of fear they won’t get paid. In theory, this shouldn’t be happening. The National Defense Authorization Act signed into law by President Obama on December 31, 2011 explicitly excludes food products (as well as medicine and medical devices) from sanctions. So international agricultural producers should be free to sell to Iran without risk. But given the fragility of the Iranian financial system and the stigma surrounding trade with Iran, many foreign vendors are deciding it’s just not worth it. Because while Tehran is willing to continue selling crude on credit while its customers sort through sanctions-related payment problems, the country’s food suppliers aren’t so sure the small- and medium-sized Iranian companies they deal with will be able to come through." http://www.economonitor.com/piie/2012/02/13/iran%E2%80%99s-food-supply-gets-pinched/
  • "The Obama administration on Tuesday clarified how it would enforce recently passed Iran sanctions including how the United States would determine if another country has significantly reduced oil purchases from Iran. "We are working intensively to implement the (National Defense Authorization Act's) financial sanctions as part of our broad-based efforts to stop Iran's illicit nuclear activities," David Cohen, U.S. Treasury under secretary for terrorism and financial intelligence, said in a statement." http://af.reuters.com/article/energyOilNews/idAFL2E8DEDIW20120214
  • "[NDAA 2012] includes provisions related to Iran, specifically sanctions on foreign financial institutions that do business with the Central Bank of Iran (CBI), including for oil transactions. The United States has already had sanctions on CBI and Iran’s oil industry for decades -- so to make this legislation effective, the Obama Administration worked closely with Congress to shape the Iran provisions so that this new tool would increase the likelihood that other countries would stop doing business with CBI and Iran’s oil sector. This is important because the most effective approach is one that involves multilateral participation and is timed and phased to avoid negative repercussions to international oil markets and instead focus pressure on Iran. For three years, President Obama has led an unprecedented effort to prevent Iran from acquiring nuclear weapons. Through a two-track policy -- one track increasing the pressure on Iran to induce it live up to its responsibilities in the international community and the other track offering a very credible option for engagement, provided Iran accepts its responsibilities to the international community -- the United States has built a strong international coalition against Iran’s nuclear weapons aspirations. As a result, Iran now faces the toughest sanctions regime in the world and is more isolated diplomatically, both regionally and globally. The measure signed into law Saturday can be a significant escalation in the pressure on Iran, and President Obama has made clear that the United States is committed to increasing the pressure on Iran until it changes course." http://www.whitehouse.gov/blog/2012/01/05/national-defense-authorization-act-fiscal-year-2012
  • "the president evoked section 1245 of the NDAA, a small script in the act that authorizes Obama the power to freeze property belonging to the Iranian government and stop the nation from accessing any of its funds, including even those held by the Central Bank of Iran. Previous legislation had allowed the US “reject” Iranian transaction, which would simply keep matters from passing through American authorities. By employing section 1245, however, the US is blocking any deals that would involve the government of Iran or their Central Bank." http://rt.com/usa/news/obama-ndaa-act-iran-645/

Additional

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  • "The act allocates $662 billion to defense, which includes military equipment, naval vessels and aircraft, including drones for sale, transfer or loan to foreign countries. It details strategy reports and policy on counter-terrorism, detention, prosecution and United States interests abroad." "The act allocates $100 million for anti-drug activities to Benin, Cape Verde, Gambia, Ghana, Guinea, Ivory Coast, Jamaica, Liberia, Mauritania, Nicaragua, Nigeria, Sierra Leone and Togo. It calls for the reduction of man-portable air-defense systems (MANPADS) that were used in Libya by so-called “terrorists” and to prevent their acquisition by terrorists. A new amendment to the NDAA codified as Section 1091 of the Freedom of Information Act gives the Secretary of Defense the power to prohibit public access to information from the Department of Defense for what is deemed “critical infrastructure security information.”" http://sfbayview.com/2012/are-you-a-potential-terrorist-under-ndaa/
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