[Peace-discuss] the signing statement for the NDAA / was Re: High crime

[Karen Medina]

Ron Paul declared that the National Defense Authorization Act, or NDAA bill
begins the official establishment of martial law in the United States


[Below is the signing statement written by Obama when he signed the
National Defense Authorization Act into law.]

The White House

Office of the Press Secretary

For Immediate Release December 31, 2011
Statement by the President on H.R. 1540

Today I have signed into law H.R. 1540, the "National Defense Authorization
Act for Fiscal Year 2012." I have signed the Act chiefly because it
authorizes funding for the defense of the United States and its interests
abroad, crucial services for service members and their families, and vital
national security programs that must be renewed. In hundreds of separate
sections totaling over 500 pages, the Act also contains critical
Administration initiatives to control the spiraling health care costs of
the Department of Defense (DoD), to develop counterterrorism initiatives
abroad, to build the security capacity of key partners, to modernize the
force, and to boost the efficiency and effectiveness of military operations
worldwide.

The fact that I support this bill as a whole does not mean I agree with
everything in it. In particular, I have signed this bill despite having
serious reservations with certain provisions that regulate the detention,
interrogation, and prosecution of suspected terrorists. Over the last
several years, my Administration has developed an effective, sustainable
framework for the detention, interrogation and trial of suspected
terrorists that allows us to maximize both our ability to collect
intelligence and to incapacitate dangerous individuals in rapidly
developing situations, and the results we have achieved are undeniable. Our
success against al-Qa'ida and its affiliates and adherents has derived in
significant measure from providing our counterterrorism professionals with
the clarity and flexibility they need to adapt to changing circumstances
and to utilize whichever authorities best protect the American people, and
our accomplishments have respected the values that make our country an
example for the world.

Against that record of success, some in Congress continue to insist upon
restricting the options available to our counterterrorism professionals and
interfering with the very operations that have kept us safe. My
Administration has consistently opposed such measures. Ultimately, I
decided to sign this bill not only because of the critically important
services it provides for our forces and their families and the national
security programs it authorizes, but also because the Congress revised
provisions that otherwise would have jeopardized the safety, security, and
liberty of the American people. Moving forward, my Administration will
interpret and implement the provisions described below in a manner that
best preserves the flexibility on which our safety depends and upholds the
values on which this country was founded.

Section 1021 affirms the executive branch's authority to detain persons
covered by the 2001 Authorization for Use of Military Force (AUMF) (Public
Law 107-40; 50 U.S.C. 1541 note). This section breaks no new ground and is
unnecessary. The authority it describes was included in the 2001 AUMF, as
recognized by the Supreme Court and confirmed through lower court decisions
since then. Two critical limitations in section 1021 confirm that it solely
codifies established authorities. First, under section 1021(d), the bill
does not "limit or expand the authority of the President or the scope of
the Authorization for Use of Military Force." 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. Indeed, I believe that doing
so would break with our most important traditions and values as a Nation.
My Administration will interpret section 1021 in a manner that ensures that
any detention it authorizes complies with the Constitution, the laws of
war, and all other applicable law.

Section 1022 seeks to require military custody for a narrow category of
non-citizen detainees who are "captured in the course of hostilities
authorized by the Authorization for Use of Military Force." This section is
ill-conceived and will do nothing to improve the security of the United
States. The executive branch already has the authority to detain in
military custody those members of al-Qa'ida who are captured in the course
of hostilities authorized by the AUMF, and as Commander in Chief I have
directed the military to do so where appropriate. I reject any approach
that would mandate military custody where law enforcement provides the best
method of incapacitating a terrorist threat. While section 1022 is
unnecessary and has the potential to create uncertainty, I have signed the
bill because I believe that this section can be interpreted and applied in
a manner that avoids undue harm to our current operations.

I have concluded that section 1022 provides the minimally acceptable amount
of flexibility to protect national security. Specifically, I have signed
this bill on the understanding that section 1022 provides the executive
branch with broad authority to determine how best to implement it, and with
the full and unencumbered ability to waive any military custody
requirement, including the option of waiving appropriate categories of
cases when doing so is in the national security interests of the United
States. As my Administration has made clear, the only responsible way to
combat the threat al-Qa'ida poses is to remain relentlessly practical,
guided by the factual and legal complexities of each case and the relative
strengths and weaknesses of each system. Otherwise, investigations could be
compromised, our authorities to hold dangerous individuals could be
jeopardized, and intelligence could be lost. I will not tolerate that
result, and under no circumstances will my Administration accept or adhere
to a rigid across-the-board requirement for military detention. I will
therefore interpret and implement section 1022 in the manner that best
preserves the same flexible approach that has served us so well for the
past 3 years and that protects the ability of law enforcement professionals
to obtain the evidence and cooperation they need to protect the Nation.

My Administration will design the implementation procedures authorized by
section 1022(c) to provide the maximum measure of flexibility and clarity
to our counterterrorism professionals permissible under law. And I will
exercise all of my constitutional authorities as Chief Executive and
Commander in Chief if those procedures fall short, including but not
limited to seeking the revision or repeal of provisions should they prove
to be unworkable.

Sections 1023-1025 needlessly interfere with the executive branch's
processes for reviewing the status of detainees. Going forward, consistent
with congressional intent as detailed in the Conference Report, my
Administration will interpret section 1024 as granting the Secretary of
Defense broad discretion to determine what detainee status determinations
in Afghanistan are subject to the requirements of this section.

Sections 1026-1028 continue unwise funding restrictions that curtail
options available to the executive branch. Section 1027 renews the bar
against using appropriated funds for fiscal year 2012 to transfer
Guantanamo detainees into the United States for any purpose. I continue to
oppose this provision, which intrudes upon critical executive branch
authority to determine when and where to prosecute Guantanamo detainees,
based on the facts and the circumstances of each case and our national
security interests. For decades, Republican and Democratic administrations
have successfully prosecuted hundreds of terrorists in Federal court. Those
prosecutions are a legitimate, effective, and powerful tool in our efforts
to protect the Nation. Removing that tool from the executive branch does
not serve our national security. Moreover, this intrusion would, under
certain circumstances, violate constitutional separation of powers
principles.

Section 1028 modifies but fundamentally maintains unwarranted restrictions
on the executive branch's authority to transfer detainees to a foreign
country. This hinders the executive's ability to carry out its military,
national security, and foreign relations activities and like section 1027,
would, under certain circumstances, violate constitutional separation of
powers principles. The executive branch must have the flexibility to act
swiftly in conducting negotiations with foreign countries regarding the
circumstances of detainee transfers. In the event that the statutory
restrictions in sections 1027 and 1028 operate in a manner that violates
constitutional separation of powers principles, my Administration will
interpret them to avoid the constitutional conflict.

Section 1029 requires that the Attorney General consult with the Director
of National Intelligence and Secretary of Defense prior to filing criminal
charges against or seeking an indictment of certain individuals. I sign
this based on the understanding that apart from detainees held by the
military outside of the United States under the 2001 Authorization for Use
of Military Force, the provision applies only to those individuals who have
been determined to be covered persons under section 1022 before the Justice
Department files charges or seeks an indictment. Notwithstanding that
limitation, this provision represents an intrusion into the functions and
prerogatives of the Department of Justice and offends the longstanding
legal tradition that decisions regarding criminal prosecutions should be
vested with the Attorney General free from outside interference. Moreover,
section 1029 could impede flexibility and hinder exigent operational
judgments in a manner that damages our security. My Administration will
interpret and implement section 1029 in a manner that preserves the
operational flexibility of our counterterrorism and law enforcement
professionals, limits delays in the investigative process, ensures that
critical executive branch functions are not inhibited, and preserves the
integrity and independence of the Department of Justice.

Other provisions in this bill above could interfere with my constitutional
foreign affairs powers. Section 1244 requires the President to submit a
report to the Congress 60 days prior to sharing any U.S. classified
ballistic missile defense information with Russia. Section 1244 further
specifies that this report include a detailed description of the classified
information to be provided. While my Administration intends to keep the
Congress fully informed of the status of U.S. efforts to cooperate with the
Russian Federation on ballistic missile defense, my Administration will
also interpret and implement section 1244 in a manner that does not
interfere with the President's constitutional authority to conduct foreign
affairs and avoids the undue disclosure of sensitive diplomatic
communications. Other sections pose similar problems. Sections 1231, 1240,
1241, and 1242 could be read to require the disclosure of sensitive
diplomatic communications and national security secrets; and sections 1235,
1242, and 1245 would interfere with my constitutional authority to conduct
foreign relations by directing the Executive to take certain positions in
negotiations or discussions with foreign governments. Like section 1244,
should any application of these provisions conflict with my constitutional
authorities, I will treat the provisions as non-binding.

My Administration has worked tirelessly to reform or remove the provisions
described above in order to facilitate the enactment of this vital
legislation, but certain provisions remain concerning. My Administration
will aggressively seek to mitigate those concerns through the design of
implementation procedures and other authorities available to me as Chief
Executive and Commander in Chief, will oppose any attempt to extend or
expand them in the future, and will seek the repeal of any provisions that
undermine the policies and values that have guided my Administration
throughout my time in office.

BARACK OBAMA


THE WHITE HOUSE,
December 31, 2011.

[The title is:
"Statement by the President on H.R. 1540" and it is found here:
http://www.whitehouse.gov/the-press-office/2011/12/31/statement-president-hr-1540
]
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