!! History Commons Alert, Exciting News

Context of 'December 31, 2011: Obama Signs Controversial Indefinite Detention Bill'

This is a scalable context timeline. It contains events related to the event December 31, 2011: Obama Signs Controversial Indefinite Detention Bill. You can narrow or broaden the context of this timeline by adjusting the zoom level. The lower the scale, the more relevant the items on average will be, while the higher the scale, the less relevant the items, on average, will be.

Provisions for indefinite detention included in the 2012 “National Defense Authorization Act,” an annual ‘must pass’ defense spending bill, begin to generate controversy soon after the proposed text is published. The language drafted by the Senate Armed Services Committee provides for indefinite military detention, without charge or trial, of essentially anyone accused of supporting or being associated with groups “engaged in hostilities” with the United States, including US citizens. The American Civil Liberties Union (ACLU) begins monitoring the proceedings and urging the public to oppose the bill. [ACLU.org, 7/6/2011] Other civil liberties and human rights groups will follow suit, including Amnesty International, the Center for Constitutional Rights (CCR), Human Rights Watch (HRW), and the Bill of Rights Defense Committee. The ACLU, CCR, and HRW point out that indefinite detention without charge or trial has not been codified since the McCarthy era. [ConstitutionCampaign.org, 12/6/2011; HRW.org, 12/15/2011; CCRJustice.org, 1/4/2012; Amnesty International, 1/5/2012] Constitutional experts Jonathan Turley and Glenn Greenwald will repeatedly condemn the bill’s indefinite military detention provisions. [Jonathan Turley, 1/2/2012; Salon, 12/15/2012] Two retired four-star Marine Generals, Charles C. Krulak and Joseph P. Hoar, will criticize the NDAA’s indefinite detention provision in an op-ed published in the New York Times, writing that under the law, “Due process would be a thing of the past.” And, “[T]his provision would expand the battlefield to include the United States—and hand Osama bin Laden an unearned victory long after his well-earned demise.” [New York Times, 12/13/2011] Congress will pass the bill on December 15 (see December 15, 2011) and President Obama will sign it into law on December 31 (see December 31, 2011). A poll conducted shortly after the bill is passed by Congress will find that only one in four likely voters support the NDAA (see December 22-26, 2011). After the bill is signed into law, states and municipalities will begin to pass laws and resolutions opposing the bill (see December 31, 2011 and After).

Entity Tags: Center for Constitutional Rights, Jonathan Turley, Charles Krulak, Bill of Rights Defense Committee, Amnesty International, American Civil Liberties Union, Joseph Hoar, Human Rights Watch, Glenn Greenwald

Timeline Tags: Civil Liberties

Congress passes a defense spending bill with controversial provisions authorizing the indefinite military detention, or rendering to a foreign country or entity, without charge or trial, of any person, including US citizens, detained, arrested, or captured anywhere in the world, including the US. The bill is the 2012 National Defense Authorization Act (NDAA) (H.R. 1540 and S. 1867). [GovTrack, 12/31/2012] The NDAA created controversy soon after the indefinite detention provisions were revealed (see July 6, 2011 and after). Civil liberties and human rights advocates raised concerns about sections 1026, 1027, and 1028, which restrict transfers and releases of prisoners from the US prison at Guantanamo, including those found to be innocent, but the most controversial parts of the bill are Sections 1021 and 1022, which provide for indefinite military detention. A federal judge will later issue a preliminary injunction barring enforcement of Section 1021, finding it unconstitutional (see May 16, 2012). [Verdict, 12/21/2011]
Detention Authorities Currently Unclear, Not Settled by NDAA - The Supreme Court ruled by plurality in Hamdi v. Rumsfeld (2004) (see June 28, 2004 that Yaser Esam Hamdi, a US citizen captured by the Northern Alliance in Afghanistan and alleged to have been armed and traveling with a Taliban unit (see December 2001), could be held by the military without charge or trial until the end of hostilities authorized by the 2001 Authorization for Use of Military Force (AUMF). In other circumstances, such as persons not engaged in armed combat with US forces, or persons arrested or captured away from a battlefield, or inside the United States, the rights of prisoners and the legality of indefinite military detention are unsettled issues, and the NDAA provides no clarification. The AUMF makes no reference to the detention of prisoners or military operations inside the United States, but both the Bush and Obama administrations have consistently interpreted language giving the president authority to use “all necessary and appropriate force” to include broad powers of detention. Due to the lack of clear expression of the scope of these authorities in the AUMF, as well as potential conflicts with the Constitution, related case law includes differing judicial opinions. Supreme Court rulings have not addressed all the questions raised by the complexity of the issues involved. [New York Times, 12/1/2011; Secrecy News, 2/6/2012; Elsea, 6/11/2012 pdf file; Salon, 12/15/2012] The NDAA states in 1021(d), “Nothing in this section is intended to limit or expand the authority of the president or the scope of the [AUMF],” and (e): “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.” [Public Law 112 81 pdf file] This language was included following the nearly unanimous passage of Senate Amendment (SA) 1456. It was a compromise, following the defeat of three other amendments proposed by members of Congress concerned about the NDAA’s blanket detention authority: SA 1107, introduced by Senator Mark Udall (D-CO), which would have removed detention provisions from the bill and required the executive branch to submit a report to Congress on its interpretation of its detention powers and the role of the military; SA 1125, introduced by Senator Diane Feinstein (D-CA), which would have limited the definition of covered persons to those captured outside US borders; and SA 1126, also introduced by Feinstein, which would have would have excluded US citizens from indefinite detention provisions. [Senate, 12/1/2011; The Political Guide, 12/31/2012] Supporters of broad detention authority say the entire world is a battlefield, and interpret Hamdi to mean any US citizen deemed an enemy combatant can legally be detained indefinitely by the military. Opponents point out that Hamdi was said to have been fighting the US in Afghanistan, and that military detention without trial is limited to those captured in such circumstances. Opponents also say the 1971 Non-Detention Act outlawed indefinite detention of US persons arrested in the US. Feinstein, who submitted SA 1456 inserting the compromise language, states: “[T]his bill does not change existing law, whichever side’s view is the correct one. So the sponsors can read Hamdi and other authorities broadly, and opponents can read it more narrowly, and this bill does not endorse either side’s interpretation, but leaves it to the courts to decide.” Senator Carl Levin (D-MI), sponsor of the original NDAA in the Senate, agrees, saying: “[W]e make clear whatever the law is. It is unaffected by this language in our bill.” [Senate, 12/1/2011]
NDAA 'Affirms' Authority Not Expressly Granted in AUMF, Further Muddies Already Unclear Powers - In the NDAA, Congress attempts to settle some of the aforementioned legal questions by asserting in the NDAA that these authorities were included in the AUMF or that the president already possessed them (unless the courts decide otherwise). Section 1021(a) states: “Congress affirms that the authority of the president to use all necessary and appropriate force pursuant to the [AUMF]… includes the authority for the Armed Forces of the United States to detain covered persons (as defined in sub-section (b)) pending disposition under the law of war… (c)(1) until the end of the hostilities authorized by the [AUMF].” This clear statement regarding detention authority is an implicit acknowledgment that the AUMF neither explicitly authorizes indefinite military detention, nor spells out the scope of such authority. As noted above, both the George W. Bush and Obama administrations, citing the AUMF, have claimed this authority, and some courts have upheld their interpretation. However, as noted by critics of the bill such as the American Civil Liberties Union (ACLU), Human Rights Watch (HRW), and constitutional scholar Glenn Greenwald, this is the first time Congress has codified it. Also, despite Congress’s assertion in the NDAA that it does not “expand… the scope of the [AUMF],” the language in the bill does exactly that. The AUMF pertained only to those responsible for the 9/11 attacks, or those who harbored them. Subsection (b)(2) of the NDAA expands the definition of covered persons and activities to include “[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.” Terms such as “substantially supported,” “directly supported,” and “associated forces” are not defined in the NDAA and are thus subject to interpretation, introducing new ambiguities. In addition, though the AUMF does not explicitly authorize it, the NDAA clearly covers any person, including US persons, “captured or arrested in the United States,” should the courts decide that the AUMF did, in fact, authorize this, or that it is otherwise constitutional. A federal judge will later issue a preliminary injunction barring enforcement of this section of the NDAA, in part because of its conflicting, vague language but also because of her finding that it infringes on the right to due process, and to freedom of speech and association (see May 16, 2012). [Public Law 112 81 pdf file; American Civil Liberties Union, 12/14/2012; Human Rights Watch, 12/15/2012; Salon, 12/15/2012]
Section 1022: Mandatory Military Custody for Non-US Citizen Members of Al-Qaeda - Section 1022 requires that those determined to be members of al-Qaeda or “an associated force” and who “participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners” be held in “military custody pending disposition under the law of war.” This section is somewhat less controversial than section 1021 as it is more specific and limited in scope, and contains an exemption for US citizens, such that section 1022 may be applied to US citizens, but is not required to be: (b)(1) “The requirement to detain a person in military custody under this section does not extend to citizens of the United States.” [Public Law 112 81 pdf file]
Obama Administration Insisted on Broad Detention Authority - According to Senators Levin and Lindsey Graham (R-SC), the Obama administration required that detention authorities be applicable to US citizens, including those arrested in the US. Levin says that “language which precluded the application of section 1031 [1021 in the final bill] to American citizens was in the bill 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.” [Senate, 11/17/2011] Graham says: “The statement of authority I authored in 1031 [1021 in final bill], with cooperation from the administration, clearly says someone captured in the United States is considered part of the enemy force regardless of the fact they made it on our home soil. The law of war applies inside the United States not just overseas.” [Senate, 11/17/2011]
How Congress Votes - With President Obama having signaled he will sign the bill, the Senate votes 86-13 in favor, with one abstention. Six Democrats and six Republicans vote against it, along with Senator Bernie Sanders (I-VT). [Open Congress, 12/15/2011] The House votes 283-136 in favor of the bill, with 14 abstentions. Democrats are evenly divided, with 93 voting for the NDAA and 93 against. Republicans voting are overwhelmingly in favor: 190-43, almost four out of five. Obama will sign the NDAA into law by December 31, 2011 (see December 31, 2011). [Open Congress, 12/14/2011]
Fallout over Bill - The same day Congress votes to pass the bill, two senators who voted for it, Feinstein and Patrick Leahy (D-VT), introduce a bill to restrict presidential authority to indefinitely detain US citizens (see December 15, 2011). A poll that will be conducted shortly after the bill is passed finds that only one in four “likely voters” approve of it (see December 22-26, 2011). Less than six months after the bill is signed into law, a federal judge will issue a preliminary injunction barring enforcement under section 1021 (see May 16, 2012), in response to a lawsuit that will be filed by seven activists and journalists (see January 13, 2012).

Entity Tags: Bernie Sanders, George W. Bush, Dianne Feinstein, Carl Levin, Glenn Greenwald, Patrick J. Leahy, Barack Obama, Mark Udall, Human Rights Watch, American Civil Liberties Union

Timeline Tags: Civil Liberties

A public opinion poll finds the 2012 National Defense Authorization Act (NDAA), which provides for indefinite military detention of anyone accused of supporting groups hostile to the United States, has low support among the general public. The poll, conducted by IBOPE (formerly known as Zogby) shortly after the bill is passed by Congress (see December 15, 2011), finds that just 24 percent of Americans who are “likely voters” say they support the NDAA, and only 4 percent strongly support it. Thirty-eight percent oppose it, and another 38 percent are unsure. Thirty percent of Republicans, 22 percent of independents, and 21 percent of Democrats approve of the law. The results of the poll will be released on January 6, 2012, after President Obama signs the bill into law (see December 31, 2011). The bill began generating controversy six months ago, after the American Civil Liberties Union highlighted the indefinite detention provisions (see July 6, 2011 and after). [IBOPE Inteligência, 1/6/2012]

Entity Tags: Zogby International, IBOPE Inteligência

Timeline Tags: Civil Liberties

President Obama signs a controversial bill passed by Congress (see December 15, 2011), which gives the president power to order indefinite military detention for anyone deemed an enemy combatant, including US citizens arrested or captured in the United States. Obama had threatened to veto the 2012 National Defense Authorization Act (NDAA) on a number of occasions, but once certain restrictions on presidential authority were removed, he became willing to sign it. For instance, the original version of the bill required that persons covered by the bill be held prisoner by the military and prosecuted by military tribunals, if at all. Obama was of the view that by requiring military detention, Congress was intruding on areas under the purview of the executive branch, and in ways that would impede the ability of the executive branch to effectively gather intelligence, fight terrorism, and protect national security. He also believed the bill was unnecessary and potentially risky in order to codify detention authority, and that the president already had authority, via the 2001 Authorization to Use Military Force (AUMF) and subsequent court rulings, to unilaterally designate persons, including US citizens, as enemy combatants and subject them to indefinite military detention without trial. [White House, 12/31/2011; Salon, 12/15/2012] For the same reasons, Secretary of Defense Leon Panetta, CIA Director David Petraeus, FBI Director Robert Mueller, Director of National Intelligence James Clapper, White House Advisor for Counterterrorism John Brennan, and DOJ National Security Division head Lisa Monaco were also opposed to the mandatory military detention provisions. [ACLU, 12/7/2011] Also, according to Senator Carl Levin (D-MI), a sponsor of the NDAA, “[L]anguage which precluded the application of section 1031 [1021 in the final bill] to American citizens was in the bill 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.” [Senate, 11/17/2011] With the bill drafted so that military detention was optional, and an option US citizens were subject to (see December 15, 2011), Obama signaled he would sign it, despite having concerns that it was still unduly restrictive of executive authority, and it unnecessarily codified authority that had been exercised for 10 years and had been upheld by a number of lower court decisions. [White House, 12/17/2011 pdf file] However, in a non-binding signing statement attached to the bill, Obama says he is signing the bill “despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists.” Obama does not specify what his reservations are, but promises: “[M]y administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a nation.” [White House, 12/31/2011]
Controversy over Indefinite Detention Provisions - Though 86 percent of US senators and almost two-thirds of the House of Representatives voted to pass the NDAA (see December 15, 2011), and the bill is signed by Obama, the military detention measures are opposed by a number of constitutional experts and public interest organizations, and a significant percentage of the general public (see December 22-26, 2011).

Entity Tags: James R. Clapper Jr., Carl Levin, Barack Obama, Central Intelligence Agency, Federal Bureau of Investigation, US Department of Justice, US Department of Defense, Leon Panetta, Robert S. Mueller III, John O. Brennan, David Petraeus, Lisa Monaco

Timeline Tags: Civil Liberties

A journalist and activist sues to overturn provisions in a US defense spending bill that authorize indefinite military detention, including of US citizens, who are accused of being associated with groups engaged in hostilities with the United States (see December 15, 2011, December 31, 2011). The indefinite detention provisions in the NDAA caused considerable controversy from the time they were first proposed (see July 6, 2011 and after). Chris Hedges, formerly of the New York Times, and his attorneys, Carl J. Mayer and Bruce I. Afran, file the suit seeking an injunction barring enforcement of section 1021 (formerly known as 1031) of the 2012 National Defense Authorization Act (NDAA), alleging it is unconstitutional because it infringes on Hedges’ First Amendment right to freedom of speech and association and Fifth Amendment right to due process, and that it imposes military jurisdiction on civilians in violation of Article III and the Fifth Amendment. President Obama and Secretary of Defense Leon Panetta are named as defendants in the initial complaint, individually and in their official capacities. [TruthDig, 1/16/2012] Six other writers and activists will later join Hedges as plaintiffs in the lawsuit: Daniel Ellsberg, Jennifer Bolen, Noam Chomsky, Alexa O’Brien, “US Day of Rage,” Kai Wargalla, and Birgitta Jónsdóttir, who is also a member of parliament in Iceland. Senators John McCain (R-AZ), Harry Reid (D-NV), and Mitch McConnell (R-KY), and Representatives Nancy Pelosi (D-CA), John Boehner (R-OH), and Eric Cantor (R-VA), will be added as defendants, in their official capacities. [Final Complaint: Hedges v. Obama, 2/23/2012 pdf file] The plaintiffs, their attorneys, and two supporting organizations, RevolutionTruth and Demand Progress, will establish a Web site to provide news and information related to the case, including legal documents. [StopNDAA.org, 2/10/2012] The Lawfare Blog will also post a number of court documents related to the case, including some not available at StopNDAA.org, such as the declarations of Wargalla, O’Brien, and Jónsdóttir. [Lawfare, 4/4/2012] Journalist and activist Naomi Wolf will file an affidavit supporting the lawsuit. [Guardian, 3/28/2012] The judge in the case, Katherine B. Forrest, will issue a preliminary injunction enjoining enforcement of the contested section, finding it unconstitutional (see May 16, 2012).

Entity Tags: Chris Hedges, US Congress, US Department of Defense, United States District Court, New York, Southern Division, Carl Mayer, Birgitta Jónsdóttir, RevolutionTruth, Alexa O’Brien, Barack Obama, Noam Chomsky, White House, Mitch McConnell, Harry Reid, Eric Cantor, Daniel Ellsberg, Jennifer Bolen, Bruce Afran, Nancy Pelosi, Kai Wargalla, John McCain, Katherine B. Forrest, Leon Panetta, John Boehner

Timeline Tags: Civil Liberties

President Obama’s Justice Department files a motion urging a federal judge to reconsider a ruling and order that blocked enforcement of a law authorizing indefinite military detention. The case is Hedges v. Obama and the law at issue is section 1021 of the 2012 National Defense Authorization Act (NDAA). The filing calls Judge Katherine B. Forrest’s preliminary injunction barring enforcement of Section 1021(b)(2) of the NDAA (see May 16, 2012) “extraordinary” as it restricts the president’s authority during wartime. It also questions whether “an order restraining future military operations could ever be appropriate,” and disputes Forrest’s finding that the plaintiffs who had sued to overturn the law (see January 13, 2012) have standing to sue. In footnote 1, the government states that it is construing the order “as applying only as to the named plaintiffs in this suit.” Forrest will clarify in a subsequent Memorandum Opinion and Order that by blocking enforcement of § 1021(b)(2), the only remaining persons covered are those defined in § 1021(b)(1): “A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks” (see June 6, 2012). [Hedges v. Obama: Government's Memorandum of Law in Support of Its Motion for Reconsideration of the May 16, 2012, Opinion and Order, 5/25/2012]
Background - The NDAA was passed by Congress on December 15, 2011 (see December 15, 2011) and signed into law by President Obama on December 31 (see December 31, 2011). The provision for indefinite military detention of any person accused of supporting groups hostile to the United States, without charge or trial, began to generate controversy soon after it was disclosed (see July 6, 2011 and after).

Entity Tags: Noam Chomsky, US Congress, White House, US Department of Justice, United States District Court, New York, Southern Division, US Department of Defense, Mitch McConnell, Nancy Pelosi, Katherine B. Forrest, Carl Mayer, Bruce Afran, Birgitta Jónsdóttir, Barack Obama, Alexa O’Brien, Chris Hedges, Leon Panetta, Kai Wargalla, Daniel Ellsberg, John McCain, John Boehner, Jennifer Bolen, Eric Cantor, Harry Reid

Timeline Tags: Civil Liberties

Ordering 

Time period


Email Updates

Receive weekly email updates summarizing what contributors have added to the History Commons database

 
Donate

Developing and maintaining this site is very labor intensive. If you find it useful, please give us a hand and donate what you can.
Donate Now

Volunteer

If you would like to help us with this effort, please contact us. We need help with programming (Java, JDO, mysql, and xml), design, networking, and publicity. If you want to contribute information to this site, click the register link at the top of the page, and start contributing.
Contact Us

Creative Commons License Except where otherwise noted, the textual content of each timeline is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike