Greenwald, 11 –former Constitutional and civil rights litigator (Glenn, “Three myths about the detention bill” Salon, 12/16, http://www.salon.com/2011/12/16/three_myths_about_the_detention_bill/)
Condemnation of President Obama is intense, and growing, as a result of his announced intent to sign into law the indefinite detention bill embedded in the 2012 National Defense Authorization Act (NDAA). These denunciations come not only from the nation’s leading civil liberties and human rights groups, but also from the pro-Obama New York Times Editorial Page, which today has a scathing Editorial describing Obama’s stance as “a complete political cave-in, one that reinforces the impression of a fumbling presidency” and lamenting that “the bill has so many other objectionable aspects that we can’t go into them all,” as well as from vocal Obama supporters such as Andrew Sullivan, who wrote yesterday that this episode is “another sign that his campaign pledge to be vigilant about civil liberties in the war on terror was a lie.” In damage control mode, White-House-allied groups are now trying to ride to the rescue with attacks on the ACLU and dismissive belittling of the bill’s dangers. For that reason, it is very worthwhile to briefly examine — and debunk — the three principal myths being spread by supporters of this bill, and to do so very simply: by citing the relevant provisions of the bill, as well as the relevant passages of the original 2001 Authorization to Use Military Force (AUMF), so that everyone can judge for themselves what this bill actually includes (this is all above and beyond the evidence I assembled in writing about this bill yesterday): Myth # 1: This bill does not codify indefinite detention Section 1021 of the NDAA governs, as its title says, “Authority of the Armed Forces to Detain Covered Persons Pursuant to the AUMF.” The first provision — section (a) — explicitly “affirms that the authority of the President” under the AUMF ”includes the authority for the Armed Forces of the United States to detain covered persons.” The next section, (b), defines “covered persons” — i.e., those who can be detained by the U.S. military — as “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.” With regard to those “covered individuals,” this is the power vested in the President by the next section, (c): It simply cannot be any clearer within the confines of the English language that this bill codifies the power of indefinite detention. It expressly empowers the President — with regard to anyone accused of the acts in section (b) – to detain them “without trial until the end of the hostilities.” That is the very definition of “indefinite detention,” and the statute could not be clearer that it vests this power. Anyone claiming this bill does not codify indefinite detention should be forced to explain how they can claim that in light of this crystal clear provision. It is true, as I’ve pointed out repeatedly, that both the Bush and Obama administrations have argued that the 2001 AUMF implicitly (i.e., silently) already vests the power of indefinite detention in the President, and post-9/11 deferential courts have largely accepted that view (just as the Bush DOJ argued that the 2001 AUMF implicitly (i.e., silently) allowed them to eavesdrop on Americans without the warrants required by law). That’s why the NDAA can state that nothing is intended to expand the 2001 AUMF while achieving exactly that: because the Executive and judicial interpretation being given to the 20o1 AUMF is already so much broader than its language provides. But this is the first time this power of indefinite detention is being expressly codified by statute (there’s not a word about detention powers in the 2001 AUMF). Indeed, as the ACLU and HRW both pointed out, it’s the first time such powers are being codified in a statute since the McCarthy era Internal Security Act of 1950, about which I wrote yesterday.
Violation - Force feeding isn’t detention – the plan rules on penological interest, not detention power
Bennett, 13 – Wells, managing editor of Lawfare (“Oral Argument Recap: Aamer v. Obama,” Lawfare, 10/18/13, http://www.lawfareblog.com/2013/10/oral-argument-recap-aamer-v-obama/ //Red)
With regard got the merits, Judge Tatel tested Eisenberg’s theory, that force-feeding bears no relationship to a legitimate penological interest. (The legal principle is that when a prison regulation impinges on prisoners’ constitutional rights, then the regulation must bear a reasonable relationship to such an interest.) The judge asked about a long string of detainee-unfavorable cases, cited by the United States, all of which affirmed the government’s legitimate interest in maintaining security and good order at prisons. Well, why isn’t that also true at Guantanamo? The lawyer acknowledged the cited authorities, but suggested nevertheless that an alternative approach—that employed under California state law—would better suit the case at bar. The lawyer surmised that JTF-GTMO officials had jumped the gun in some instances, by force-feeding certain detainees (Eisenberg’s clients, presumably) before their hunger strike began to pose a mortal risk. The California regime, he said, could account for this.