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Obama Signing Statement: "Existing Law" is Jose Padilla.

By Ralph Lopez - Posted on 02 January 2012

Obama is playing a razzle-dazzle on the new NDAA allowance for the indefinite military detention of American citizens without charge or trial, which it takes a sports fan to truly admire.  Obama claims he is objecting to the very parts of a law which he asked Sen. Carl Levin, Chairman of the Armed Service Committee, to include in the first place, which allows for the indefinite military detention of Americans.  Sen. Levin puzzled on the Senate floor as the firestorm broke over the provisions:
Sen. Levin (addressing Senate president): "And I'm wondering whether the senator is familiar with the fact that the language, the language which precluded the application of section 1031 to American citizens was in the bill that we originally approved in the Armed Services Committee, and the administration asked us to remove the language which says that US citizens and lawful residents would not be subject to this section?

    Is the senator familiar with the fact that it was the administration which asked us to remove the very language we had in the bill which passed the committee and that we removed it at the request of the administration... that would have said that this determination would not apply to US citizens and lawful residents? I'm just wondering is the senator familiar with the fact it was the administration which asked us to remove the very language [excluding US citizens], the absence of which, is now objected to by the senator from Illinois?"

Don't be fooled.  Defenders of the language will point to the part which says:


    (1) UNITED STATES CITIZENS.—The requirement to detain a person in military custody under this section does not extend to citizens of the United States.

Problem.  Even if it is not "required," it is still "allowed."  The website fell for the lawyer's gimmick when it reported today:

In his signing statement attached to the NDAA, President Obama made it clear that the language about detentions does not apply to US citizens.

But the ACLU said:

“President Obama's action today is a blight on his legacy because he will forever be known as the president who signed indefinite detention without charge or trial into law...Under the Bush administration, similar claims of worldwide detention authority were used to hold even a U.S. citizen detained on U.S. soil in military custody..."

"The language" is referring to is the language which requires US citizens accused of certain crimes to go into military detention.  So this is technically correct.  But although it is not a requirement it is still allowed by the plain meaning of the text in Section 1021 (page 265 of final bill), in substance:

"Congress affirms that the authority of the President to use all necessary and appropriate force detain...A person who was a part of or substantially supported al-Qaeda...or associated forces...including any person who has...directly supported such hostilities in aid of such enemy forces...The disposition of a person...may include...Detention under the law of war...without trial until the end of the hostilities..."

Next in the Chicago playbook, the old "existing law" fake-double-reverse.  Obama is a basketball player, a good one, which means he understands that without the fake, there is no score.  The fake is the art of looking like you are doing one thing when you are actually doing another.  No great player can not have a keen understanding of this. Obama's signing statement says:

Second, under section 1021(e), the bill may not be construed to affect any “existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” My Administration strongly supported the inclusion of these limitations in order to make clear beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF. Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.

Two problems.  One, people may think that "existing law" is the Bill of Rights.  But it is not.  Existing law is in flux, and right now it is Jose Padilla.  Two: if the law does not allow "the indefinite military detention without trial of American citizens," why would Obama need to promise that his administration will not "authorize" what he is not allowed to do in the first place?  

If you don't want to believe the ACLU or Glenn Greenwald about "exisiting law," says one blogger at, how about Sen. Lindsey Graham (R-SC) who told the Senate during floor debate on the NDAA:

Are you familiar with the Padilla case? That is a Federal court case involving an American citizen captured in the United States who was held for several years as an enemy combatant. His case went to the Fourth Circuit. The Fourth Circuit Court of Appeals said: An American citizen Scan be held by our military as an enemy combatant, even if they are caught in the United States, because once they join the enemy forces, then they present a military threat and their citizenship is not a sort of a get-out-of-jail-free card; that the law of the land is that an American citizen can be held as an enemy combatant. That went to the Fourth Circuit. That, as I speak, is the law of the land.

So what Obama "strongly supported" in order to "make clear beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful," is you being arrested on American soil, held in isolation a military brig, given drugs, and  only released if and when the president says so.  A brilliant fake pass which has the untrained eye darting back to center court but the ball is already halfway in the hoop.

Warren Richey of the Christian Science Monitor reported:

“Padilla’s cell measured nine feet by seven feet. The windows were covered over. There was a toilet and sink. The steel bunk was missing its mattress. He had no pillow. No sheet. No clock. No calendar. No radio. No television. No telephone calls. No visitors. Even Padilla’s lawyer was prevented from seeing him for nearly two years....[Padilla's captors] punctured the extreme sensory deprivation with sensory overload, blasting him with harsh lights and pounding sounds.”  

That's "existing law."

After Padilla was held for nearly 4 years in the brig, Padilla's attorney, in his affidavit filed during Padilla's civilian trial, said: “Mr. Padilla's temperament was so docile and inactive that his behavior was like that of ‘a piece of furniture.' ”  

Patel described how it was difficult to work with Padilla in his defense, because “Mr. Padilla remains unsure if I and the other attorneys working on his case are actually his attorneys or another component of the government's interrogation scheme.” Padilla was especially reluctant to discuss what happened in the brig, fearful that he will be returned there some day.  

Unable to assist in his own defense, Padilla now sits doing 17 more years in a Supermax prison in Colorado.  Believe it or not, so pathologically vicious are the prosecutors that they think the sentence is too lenient.  After clearly depriving Padilla of his rights as an American, after making him into a vegetable, they believe he has not been punished enough, for an allegation which never even made it into the indictment, that he was going to set off a "dirty bomb" in New York.  An appeals court said Padilla would still pose a danger because of his "Al Qaeda training" even though the government never proved he ever had training, only produced a "CIA agent" who was allowed to remain nameless and testify in disguise including, wig, sunglasses, and facial hair, and a purported "Al Qaeda application form" complete with a line for "Emergency Contact." 

That's "existing law."

The big question is, why?   Bin Laden is dead, the "job" is "finished" in Iraq, and we will soon be heading out of Afghanistan.   So instead of declaring victory and celebrating the end of the "war on terror," what does Obama and the Senate do?  Treasonously, illegally, and unconstitutionally eviscerate the rights and freedoms for which we were supposedly attacked in the first place.  George Bush on September 20, 2011 said "They hate our freedoms."  Now with Bin Laden swimming with the fishes and unable to take those freedoms away, Obama and the US Senate do just that.

Occupy Wall Street for the first time in American history saw a mass movement, uncertainly, committing many errors, stretching its legs and challenging the power which has resulted in an upper estimate of over $50,000 for every man, woman, and child in America going to pay for bank bailouts over the coming years, on top of normal taxes.  This is according to Neil Barofsky, former special inspector general for the government’s financial bailout programs, whom Glenn Greenwald called " of the most impressive and courageous political officials in Washington."  

Politico reported:

A series of bailouts, bank rescues and other economic lifelines could end up costing the federal government as much as $23 trillion, the U.S. government’s watchdog over the effort says – a staggering amount that is nearly double the nation’s entire economic output for a year.

Politico notes:

$23 trillion is more than the total cost of all the wars the United States has ever fought, put together. World War II, for example, cost $4.1 trillion in 2008 dollars, according to the Congressional Research Service.

Occupy Wall Street exploded to hundreds of cites and towns overnight, and is now gathering for the Spring studying "lessons learned."  Perhaps one of the most amazing things we witnessed, despite police largely following orders, was a slow awakening among these very forces that, as the Occupiers repeated, they are also part of the "99%."  Retired Philadelphia Police Captain Ray Lewis joined OWS in Zuccotti Park in November, showing up in uniform and carrying signs imploring New York City cops to join the protests. “NYPD Don’t Be Wall Street Mercenaries,” one of the signs said.

In Albany city police and state troopers came perilously close to outright insubordination:

ALBANY -- In a tense battle of wills, state troopers and Albany police held off making arrests of dozens of protesters near the Capitol over the weekend even as Albany's mayor, under pressure from Gov. Andrew Cuomo's administration, had urged his police chief to enforce a city curfew.

Did the first hint that police forces across the country might not be reliable in protecting the interests of bankers and Wall Street send a shiver down the spine of the powers that be?  Supported by the mass grassroots networks of OWS, Bank Transfer Day saw 650,000 people closing their accounts at big banks and tranferring their money to local banks and credit unions.

We don't know the reasoning behind the present attempted power grab over citizens' rights with NDAA, but the timing of putting the US military tool in the repression toolbox and burying Posse Comitatus seems suspicious.  OWS seems not to have missed the affront to American rights, and has taken the fight over NDAA to the White House.  In largely unreported actions, dozens of OWS protesters have been arrested within view of the Oval Office.

The move has sparked a surge of interest in passing and using recall laws aimed at senators and congressmen.  Federal recall laws remain relatively untested in the courts, with the reasoning behind the two instances in which they have been disallowed, in Idaho and New in New Jersey, considered weak and vulnerable.  Proponents of such laws point out that the Idaho decision was based on the idea that a recall law constituted a change in the "qualifications" for office, such as age and residency, which the Constitution prohibits.  And the NJ decision, by a state court, relied on the argument that the Constitution prohibits the length of a term of office from being changed, something which a recall does not do.  

A faculty paper of the College of William and Mary Law School on federal recall argues:

Properly conceived and exercised, the recall would serve not as a referendum for single issues like abortion or a balanced budget, but rather would provide the voters with a means of removing a senator who has perpetrated an extraordinary breach of the public trust...

Jose Padilla, Navy Brig

Comments: Please provide links and sources for assertions made in comments..

More on recall:

 "Facebook: "Recall Every Congressman Who Voted for the NDAA."

Arrests at White House Over NDAA Military Detention of Americans, Occupy Wall Street Joins Fight.

"For States With No Federal Recall Law"




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