Talk:National Defense Authorization Act for Fiscal Year 2012/Archive 1

Archive 1

Article does not Describe the NDAA per se, only the Controversy about it

I would have expected the article to give a description of the NDAA for 2012, what are the key provisions of the Act regarding Defense spending, including for example a breakdown of spending into major categories (if that is possible). Instead, it is 100% devoted to the issue of Subsections 1021 and 1022. While these are perhaps the most "newsworthy" aspects of the Act, they are not the main aspects of the Act, which covers the expenditure of vast sums of taxpayer money and has significant ramifications for US military capability and US foreign policy.

I suggest that either 1) the title of the article be changed to reflect the more focused subject matter (e.g. "Controversy about the National Defense Authorization Act of 2012" or such), or 2) add a more general article covering the 2012 NDAA, with a link to this article to cover the "controversy". Tony (talk) 15:35, 3 January 2012 (UTC)

I second the notion completely. What do others think? StoryMakerEchidna (talk) 21:15, 3 January 2012 (UTC)

absolutely, I've been trying to convince the regular contributors for days. — Preceding unsigned comment added by 174.109.90.242 (talk) 00:58, 4 January 2012 (UTC)

Definitely agree. Hedonistbot4000 (talk) 05:41, 4 January 2012 (UTC)

A new section has been added, and I tried to expand a little in the intro; I agree that more needs to be done. The problem is that it requires a lot of research and I'm not going to have too much time from here on out. While I've linked to a number of sections within the bill, finding secondary sources (we want to avoid original research) from the press is really challenging, as most articles have focused on detention. Tony, StoryMakerEchidna, 174.109.90.242, others, please do contribute material if you have time, and thanks for your help so far. -Darouet (talk) 21:21, 5 January 2012 (UTC)

I don't think this article is holding up to any of Wikipedia's standards, as it is currently written; it has been hijacked by a non-neutral POV that is using everything but direct sources to present a perception of this bill which is not necessarily based in fact...even going so far as to edit the quotes of Senators to make it appear that they are saying the opposite of what they actually mean. For instance, Sen. Levin, in context (not the misleadingly-edited YouTube clip), was talking about how the Administration requested removal of language to make the detention authority NOT apply to US citizens. This entire article seems to be about POV, with hardly any facts. The only relevant citations should be the 2012 NDAA text itself (which explicitly states that it expands no authorities with regards to detention practices), the 2001 AUMF it references, and the Supreme Court cases (such as Hamdi v. Rumsfeld, Rasul v. Bush, Hamden v. Rumsfeld, Munaf v. Geren, and Boumediene v. Bush) that interpreted the 2001 AUMF and other authorizing bills like the 2006 MCA. Those court cases, again, present the opposite of what is asserted in this article. In fact, the Wiki article about the Hamdi case specifically states: "eight of the nine justices of the Court agreed that the Executive Branch does not have the power to hold indefinitely a U.S. citizen without basic due process protections enforceable through judicial review." The article on Boumediene v. Bush says: "Supreme Court held that fundamental rights afforded by the Constitution extend to the Guantanamo detainees as well." If these opinions represent the current authority granted to the Executive branch regarding detention, then in what possible way does the 2012 NDAA (which "in no way" expands the Executive's authorities) suddenly grant indefinite detention? Instead of presenting the AUMF-as-defined-by-the-courts, this article seems to be constituted of pure unsubstantiated conjecture -- all of it saying that the 2012 NDAA authorizes indefinite detention. -Diogenean —Preceding undated comment added 20:43, 5 January 2012 (UTC).

There are a number of issues, the first being that your own perspective here is not supported by any of the secondary sources now linked in the article. I've read portions of this legislation and I have an opinion, but ultimately I'm relying upon the interpretation of major newspapers within the United States and globally (New York Times, Washington Post, Guardian, Al Jazeera, Voice of Russia) to understand what the legislation means. As I suggested to another editor with a perspective different from that presented by the article and taken from sources, you may consider collating a series of good articles or other secondary sources that make an alternative case (I think this can be done), and we could try to argue that perspective in a new section. However, what you seem to be suggesting right now is that we remove all secondary sources and write an original research piece using only the text of the bill and your own interpretation. That's just not acceptable. You'll also note that the bill itself is quoted on a number of occasions within the text of this article. -Darouet (talk) 21:21, 5 January 2012 (UTC)

Since it's been discussed a number of times, here is the Levin clip describing the Administration's position on American citizens and detention: [1]. -Darouet (talk) 21:34, 5 January 2012 (UTC)

Diogenean, if you want to do research on this and make such a section, I'll support you and even try to find an article or two clearly articulating the perspective, which I believe to be that of a significant minority. This requires however a lot of work; simply deleting a few phrases you don't like without reading the sources linked, or for instance erroneously suggesting that the Udall amendment proposed in the U.S. Senate was struck down by the House of Representatives (perhaps your note in the article that the House is controlled by the Republican Party is related to this), isn't appropriate, especially given the countless hours spent producing material you flippantly remove. -Darouet (talk) 23:24, 5 January 2012 (UTC)

Misleading intro text

Here are the final two sentences of the opening paragraph of this article, as they currently stand...

"Because under some versions of the bill those who may be held indefinitely include U.S. citizens arrested on American soil, the Act has received critical attention by the American Civil Liberties Union (ACLU) and media sources. But the final version of the bill drafted by the Senate-House conference committee exempted U.S. citizens from the requirement for terror suspects to be held in military custody and included language stating that the bill did not extend new authority to detain U.S. citizens."

This is highly misleading because it makes it sound like the final version of NDAA doesn't state that the President can have the military detain U.S. Citizens indefinitely - which it most certainly does. Let's examine the above sentences more closely: First it begins, "Because under some versions of the bill those who may be held indefinitely include U.S. citizens..." No - the final version of the bill states that anyone may be held indefinitely, and that includes U.S. citizens. Here's the second problem: the second sentence begins with "but". This implies that the content of the second sentence will contradict and supervene what immediately preceded. In other words, it promises that the following sentence will somehow answer the critics complaining about detention of citizens mentioned in the first sentence. But what follows is a statement that "the final version of the bill... exempted citizens from the REQUIREMENT for terror suspects to be held in military custody, and included language stating that the bill did not extend NEW authority to detain U.S. citizens." This is no counter to at all, if you understand the structure of NDAA.

What NDAA does is (1) Say the president can indefinitely detain anyone, (2) Requires that he do so when it comes to non-citizens, and (3) exempts the president from that REQUIREMENT when it comes to citizens. In other words, the President stated to have the OPTION to detain citizens indefinitely - and THAT is what the critics are opposed to - NOT the REQUIREMENT that the president do so, but the statement that he MAY do so. The second part of the second sentence above, says, "included language stating that the bill did not extend new authority to detain U.S. citizens". This too is irrelevant in that even if that were true, it doesn't change the fact that it is another piece of legislation that ALLOWS for the indefinite detainment of U.S. citizens, even if other legislation before has done so too.

The phrasing of these two sentences leaves the reader with the POV impression that this is a bill that had some versions of it before completion that caused controversy, but which was changed in the final version to leave out what the criticism was about - and that is completely misleading. It also makes me think the author may not understand the true nature of the legislation.

Here is what I propose as a replacement for the final two sentences (which I will do myself if I get no further input)...

"Although the final version of the bill does not require indefinite detention of U.S. citizens suspected of terrorism, those who may be held indefinitely include U.S. citizens arrested on American soil. The Act has therefore received critical attention by the American Civil Liberties Union (ACLU) and media sources."

--Daniel (talk) 18:42, 15 December 2011 (UTC)

@Daniel: Above, you described that the NDAA "(1) Says the president can indefinitely detain anyone, (2) Requires that he do so when it comes to non-citizens, and (3) exempts the president from that REQUIREMENT when it comes to citizens.". I see #2 and #3 in this bill, but I don't see #1. IANAL, but the only authority given to the President to detain anyone is given in 1022(a).1, which uses the word "shall" (meaning requirement). This requirement is explicitly exempted for US citizens in 1022(b).1. Nowhere does it say that the president has the option to detain. If you remove the requirement, you also remove the authority. There is no "option". — Darco (talk) 07:13, 27 December 2011 (UTC)

Hi Darco (talk); please be sure to distinguish between sections 1021 and 1022 of the bill, as described and quoted in the article provided here. As you can see, the power to indefinitely detain without trial (section 1021) is distinct from the requirement that detention be military (section 1022); the exemption from the requirement for military detention applies only to the second section, and not the first. -Darouet (talk) 08:34, 27 December 2011 (UTC)

The initial post in this section contains several inaccuracies. The sub-sections cannot be read in isolation, but must be read in the context of the entire section. For example, the initial post misses the effect of 1021(d) and (e). While it is possible for courts to misinterpret statutes, unless and until they do we should not help them do so. Statements about the actual provisions of the law need to be accurate and distinguished from concerns about how provisions might be interpreted by the Administration and the courts and both distinguished from arguments in favor and against aspects of the law. Everyone editing on this page needs to read the President's signing statement. It can be found at http://www.whitehouse.gov/the-press-office/2011/12/31/statement-president-hr-1540. As with the law itself, discussion of this signing statement in articles need to distinguish between what the statement actually says and how it might be interpreted and both distinguished from arguments for and against, criticisms, concerns etc. Thanks, folks. (Erichaim (talk) 20:15, 1 January 2012 (UTC)).

Udall amendment

All the sites I have seen refer to the Udall amendment as having passed the Senate, and one specifically cited 60-38 as the vote defeating a proscription that would limit the Udall amendment, so I suspect that the original author may have gotten the facts a bit switched around. Could someone confirm which of these is true and make sure the article fits the facts?

Hi - please follow any of the links offered as references, like this one taking you to the ACLU's statement: http://www.aclu.org/blog/tag/NDAA. From the first line of their statement: "Today, the Senate voted 38-60 to reject an important amendment to the National Defense Authorization Act (NDAA) that would have removed harmful provisions authorizing the U.S. military to pick up and imprison without charge or trial civilians, including American citizens, anywhere in the world." -Darouet (talk) 06:02, 3 December 2011 (UTC)

I think the issue is the language used - that the Udall amendment is "proscribing" the indefinite detention of citizens. Not everyone has the vocabulary to know that proscribing means forbidding by law, and I think it would be easy to misread the sentence as saying that "the amendment about indefinite detention was rejected by a vote of 38-60."207.245.236.60 (talk) 18:46, 3 December 2011 (UTC)

I've never posted on a Wikipedia before. So, hopefully all of my syntax correct. I specifically came to the talk page regarding the use of "proscribing," and wanted to second the sentiment above. It feels like a little bit of a vocabulary stretch for some readers. And, an unnecessary one at that. Is there another word that could be used here, such as "forbidding" or "striking?" Or, is it traditional to use "proscribing" in this context on Wikipedia pages?

174.51.104.246 (talk) 02:03, 4 December 2011 (UTC)

This article needs work: please feel free to improve it, by changing the wording for instance. Also, you are welcome to create a user profile, if interested and if you plan to continue editing. I'll replace the word "proscribing" eventually if nobody else does first, and if I can think of something better. It's not such an uncommon word (American SAT exams might easily use it), but I see your point. -Darouet (talk) 22:25, 4 December 2011 (UTC)

The Udall amendment was indeed defeated, though I believe it was 61-37. However, a subsequent amendment by Feinstein passed that, although not guaranteeing the exclusion of citizens, prevented this legislation from establishing that authority, This amendment passed 99-1. Dfrishberg (talk) 04:29, 6 December 2011 (UTC)

You can check the vote tally for the Udall amendment by clicking the link provided in this wikipedia page (an original tally reported to be 37-61 was later amended to 38-60). As for the subsequent amendment, as you know the complication is that there is currently divided opinion about what the law actually is. -Darouet (talk) 15:11, 6 December 2011 (UTC)

So regarding applicability to U.S. citizens, I just want to be clear. As I state above (and as is still stated in this article), the Feinstein amendment stipulates that this legislation does not affect policy toward U.S. citizens. However, the introduction to the article states that U.S. citizens are included. Which of these is right? Dfrishberg (talk) 03:49, 15 December 2011 (UTC)

Nothing about reaction from Anonymous? http://www.youtube.com/watch?v=HrXyLrTRXso Twyn3161 (talk) 05:50, 7 December 2011 (UTC)

Title X, Subtitle D, SEC 1032 (4)(b) specifically excludes US citizens, meaning US citizens cannot be indefinitely detained. Here's a link to the actual bill. Go to page 421 line 17: http://www.gpo.gov/fdsys/pkg/BILLS-112hr1540pp/pdf/BILLS-112hr1540pp.pdf All statements in the article which say the law applies to US citizens should be removed. Martylunsford (talk) 05:45, 15 December 2011 (UTC)

We are not qualified to interpret what laws mean, and must rely upon reliable, secondary sources. If RS are saying it may apply to US Citizens, then that's what the article should say (until other RS point out that they're wrong). In order to understand that particular clause, we would 1) need to be qualified legal scholars, and 2) read the entire text of the law to find out how that one specific line fits in with the rest of the info, and 3) confirm that the version you linked to is the current version of the bill. Qwyrxian (talk) 06:31, 15 December 2011 (UTC)

I agree with Qwyrxian (talk) in that we need to rely upon authoritative third party sources, which is only problematic if those sources themselves disagree (and I'm sure this is true, as even the Washington Post and New York Times have taken slightly different attitudes towards the current law). All that said, please do feel free to read the legislation itself. What Martylunsford (talk) is referring to is the requirement to detain terrorism suspects in military custody, which is causing a lot of confusion on the part of law enforcement officials and consternation among civil liberties advocates. This is not the same as the authority to indefinitely detain U.S. citizens, which is also covered in this legislation. -Darouet (talk) 15:42, 15 December 2011 (UTC)

I've been reading through the entire contents of H.R. 1540, and have yet to come across *any* wording regarding the indefinite detention of U.S. citizens in this legislation? Kendrall (talk) 18:19, 15 December 2011 (UTC)

Please see the text of this article itself, which cites the original document. "Any person" means anybody, including U.S. citizens. This is not simply an extrapolation, as Carl Levin noted on the Senate floor and as the Obama administration noted in writing: many believe this authority already exists and doesn't warrant debate. That is why the rejection of the Udall amendment explicitly exempting U.S. citizens was considered (and is considered) so important. -Darouet (talk) 18:34, 15 December 2011 (UTC)

The final wording of the article, on the Feinstein amendment, is a little unclear. Reading this article now, it may sound as if (a)Feinstein's originally proposed amendment, limiting scope to non-US citizens, might have passed, rather than a compromised amendment; and that (b) that the dispute between Feinstein and the White House / other senators has been settled by this amendment, rather than arising out of it.JamesBalzer (talk) 04:31, 21 December 2011 (UTC)

Reminder about THOMAS links:

Links to the LoC version of bills are invalid after 30 minutes. We should replace them with GovTrack links when they become available. --Zarggg (talk) 18:35, 3 December 2011 (UTC)

Agreed; many of the citations links are currently broken. Someone with more Wiki know-how than I should fix them. 71.212.121.185 (talk) 04:49, 5 December 2011 (UTC)

I made the mistake of unwittingly replacing a dead link with another link that became dead after 30 minutes. I followed up however and added a link to a list of the various versions of H.R.1540 that would allow the user to at least drill down to the relevant text. It's not quite as convenient as a link that takes the user directly to the germane text, but it's better than a dead link. I'm interested in feedback on this as I am relatively inexperienced with Wikipedia: Was this an acceptable interim solution until the GovTrack links become available as Zarggg suggests? ==Chango369w (talk) 14:02, 12 December 2011 (UTC)

Hi Chango369w (talk); that's certainly better than nothing! I think such a link is great as a general resource. If you're writing something into the wikipedia article that is more specific, a reference that more easily allows readers to check the source is of course preferable. -Darouet (talk) 17:41, 12 December 2011 (UTC)

Point of view in this article, and of those cited in it

I've placed back in the highlighted comment by senator Carl Levin that was removed by Kingturtle (talk). Kingturtle removed the commentary because it was representative of only one POV - that of Levin and many who voted for the Act. However I cannot see why this POV isn't something we should read about when reading about the NDAA: in fact it is critical. What is important is that the page itself have a neutral POV (and this does not come from erasing commentary from the senator who introduced the NDAA in the Senate). Frankly, if we added some commentary in a similar format by the ACLU that would be great. -Darouet (talk) 16:38, 7 December 2011 (UTC)

I balanced the article by adding a quote from one of the Senators supporting the Udall amendment, Rand Paul. I think that helps maintain NPOV, by providing brief snapshots of the arguments used by both the supporters and opponents of the act. Robofish (talk) 17:43, 7 December 2011 (UTC)

It occurs to me that we should have two sections, one describing the progress of the act and its provisions, and another for support or criticism from various members of congress, from the ACLU, from the administration, etc. Am busy but I hope I can make these changes later tonight or tomorrow if nobody beats me to the punch. -Darouet (talk) 20:38, 7 December 2011 (UTC)

Mike74 (talk) removed the text which states that Carl Levin and the Obama Administration are among others who believe that current U.S. Law already allows for the indefinite detention of U.S. citizens by the Armed Forces, pursuant to the Authorization for Use of Military Force Against Terrorists passed in 2001. As both the NDAA and the Obama Administration make clear in text linked, and even cited in this article, there is widespread agreement that this authority has existed for some time - backed by favorable supreme court rulings - what is in question is whether this should also be written into law by the legislative. Please do take the time to at least read this article, or the second page of a linked CSMonitor article, before making up your mind that you know what a particular senator really thinks. -Darouet (talk) 00:29, 15 December 2011 (UTC)

Wikiproject Law Importance

I've upgraded the importance of the stub to "high" for the law Wikiproject. I would not argue that the quality of the article merits this rating, but the issues involved are actually monumental, and this is why it has gotten so much attention, for different reasons, from the Obama Administration, from senators and various media sources, from the ACLU, and even from the occupy movement.

To be honest I actually hadn't realized that the authorities described by this Act were already considered to be granted by the Supreme Court and by AUMF, which is of course what the Administration, and probably the majority of congress, now argue. -Darouet (talk) 07:47, 14 December 2011 (UTC)

Wrong section of the bill referenced?

This article states that Section 1021 is the section that mentions "Indefinite Detention". I'm looking at Section 1021 in the current bill, and it talks about: "Limitation on availability of funds for placing Maritime Prepositioning Ship squadrons on reduced operating status." I feel like 1021 is not the correct section number... Error9900 (talk) 21:07, 15 December 2011 (UTC)

Thanks for catching this. -Darouet (talk) 22:28, 15 December 2011 (UTC)

I am new to talk pages so sorry for any problems in protocol, but I am pretty sure these changes are wrong. I just used the link to the text of the bill to try and find the sections on indefinite detention and 1021 was actually correct as per this quotation, " Sec. 1021. Affirmation of authority of the Armed Forces of the United States to detain covered persons pursuant to the Authorization for Use of Military Force. Sec. 1022. Military custody for foreign al-Qaeda terrorists. Sec. 1023. Procedures for periodic detention review of individuals detained at United States Naval Station, Guantanamo Bay, Cub"

It currently reads that the indefinite detention provisions are in 1031, which actually refers to "Counterterrorism operational briefing requirement." Interim17 (talk) 18:34, 26 December 2011 (UTC)

Sorry; I realize than an older version of the bill is linked. Will fix that shortly -

-Darouet (talk) 20:32, 26 December 2011 (UTC)

Actually you were right! They've changed things back again. I've made changes and linked most recent version of bill. -Darouet (talk) 08:43, 27 December 2011 (UTC)

-bonadolq Hi, To be Clear The Conference Report attached to House Resolution HR1540 (HR1540-CR) has the Subtitle D Section 1021-1028 that cover the Detention Topic as shown here http://www.rules.house.gov/Media/file/PDF_112_1/legislativetext/HR1540conf.pdf#page=654. The final text as passed by the House and Senate is here: http://www.gpo.gov/fdsys/pkg/BILLS-112hr1540enr/pdf/BILLS-112hr1540enr.pdf#page=265. Senate SB1867 Subtitle D Section 1031/1032 also addresses detainee matters here http://www.gpo.gov/fdsys/pkg/BILLS-112s1867pcs/pdf/BILLS-112s1867pcs.pdf#page=359. HR1540 with the associated conference report is what was sent to the President. Please correct the Bill citations in the Controversy Section Bonadolq (talk) 11:41, 27 December 2011 (UTC)

Edit request on 16 December 2011

The section titled "Views from the White House and Senate" contains misleading information. It reads, "Senator Feinstein has argued that current law does not allow the indefinite detention of American citizens, while the Obama Administration, Senators Carl Levin, John McCain, Lindsey Graham, Mike Lee, Rand Paul and others like Congressional Representatives Dennis Kucinich, Ron Paul and Justin Amash have argued that it does."

Actually, Senator Carl Levin DENIES that the NDAA will allow indefinite detention. He describes his view in a statement on his website, which was picked up by Politico. Here are the links: http://levin.senate.gov/newsroom/press/release/sen-levin-statement-on-passage-of-defense-authorization-bill http://www.politico.com/news/stories/1211/70527.html

Digmichael (talk) 02:31, 16 December 2011 (UTC)

Hi Digmichael (talk): the phrase "the current law" in the text of this article does not refer to the NDAA Act in question. What it refers to is the state of U.S. law prior to the bill's passage. What Senator Levin has repeatedly stressed is that this law is not giving new authority because the authority already exists. The Obama Administration has argued the same thing. Senator Feinstein, however, argues that current law (pre-NDAA) does not allow indefinite detention of American civilians, and in this she disagrees with Levin.

From Levin's website, which you link, Levin writes: "Those who say that we have written into law a new authority to detain American citizens until the end of hostilities are wrong. Neither the Senate bill nor the conference report establishes new authority to detain American citizens – or anybody else." However, this is because Levin believes that, as per Authorization for Use of Military Force Against Terrorists and statements of the Supreme Court prior to the passage of NDAA, "there is no bar to this nation's holding one of its own citizens as an enemy combatant.'" Thanks for your concern. -Darouet (talk) 03:23, 16 December 2011 (UTC)

Military Commissions Act of 2006

Please see Military Commissions Act of 2006 for an example of the direction this article should go. Viriditas (talk) 14:07, 16 December 2011 (UTC)

Also Antiterrorism and Effective Death Penalty Act of 1996. Viriditas (talk) 07:18, 17 December 2011 (UTC)

"U.S. citizens arrested on American soil"

Why are there so many mentions of this in the article? (e) Authorities under section 1031 makes it pretty clear that existing laws and authorities regarding the detention of American citizens are not to be affected in any way by this. Even if, as someone mentioned earlier, we have to use "reliable" sources to form the articles, it should at least be mentioned that this law giving the president the power to indefinitely detain citizens arrested on U.S. soil is just one interpretation many have made and brought up about this bill, not one that is the 100% truth, especially when the bill itself contradicts it. A mention of the Authorities amendment should definitely be made in the Section 1031 section of the article as well.

Also somewhat related, the source for this statement:

Senator Feinstein has argued that current law does not allow the indefinite detention of American citizens, while the Obama Administration and Senators John McCain and Carl Levin have argued that it does.

Does not mention anything regarding the view of current law of the Obama administration. Geg (talk) 21:52, 18 December 2011 (UTC)

Thanks Geg (talk); I've placed in two sources. I think one of the reasons why nobody sourced this earlier is that the links to the bill itself are available in the previous paragraph. As to the views of the Obama Administration, they are treated in many of the sources, including one I've just added, and they're also directly cited in this article. The Administration's position paper threatening veto early on during the drafting of this legislation is provided here and also linked. -Darouet (talk) 02:02, 19 December 2011 (UTC)

Occupy Movement

Im going to begin to work on the relationship between the NDAA and the occupy movement. If people would like to help, I would appreciate it. Many different kinds of people are labeled "terrorists" these days by the NSA. Muslim Americans, Occupiers, even homeless people. — Preceding unsigned comment added by Rathergood15 (talk • contribs) 08:12, 19 December 2011 (UTC)

Please don't. Unless there are reliable sources that explicitly connect these two things together, such statements would be original research. Note that these sources cannot be opinion pieces, either. In fact, my feeling is that any claim you could find that connected the two quite disparate issues would almost certainly be suspect. However, if you have some sources, try adding them to the talk page first. Qwyrxian (talk) 00:46, 20 December 2011 (UTC)

Qwyrxian (talk), there are news articles about the response of the occupy movement to NDAA (a series of demonstrations were held out West). A "reactions" section would be interesting if it were carefully done, but I've not seen enough international coverage, which IMO would be the most interesting aspect of any "reaction" section, taking into account that the ACLU already has a voice in this article. For the moment we've linked enough things that anybody interested can search around for more material. -Darouet (talk) 06:03, 20 December 2011 (UTC)

The relationship shouldn't be too hard to establish. In 2009 the ACLU wrote a letter to the DOD requesting that their Anti-Terrorism Training course remove the equating of protesting to "low-level terrorism."

http://www.aclu.org/images/general/asset_upload_file89_39820.pdf — Preceding unsigned comment added by 70.112.238.12 (talk) 20:39, 31 December 2011 (UTC)

Reichstag Fire Decree?

Really? 108.56.216.210 (talk) 06:30, 21 December 2011 (UTC)

update this

http://wiki.riteme.site/wiki/National_Defense_Authorization_Act_for_Fiscal_Year_2012#cite_note-6

could you update reference number 7? It just returns a search result. — Preceding unsigned comment added by Nullslash (talk • contribs) 12:48, 21 December 2011 (UTC)

Indefinite Detention without trial: Section 1021

Following is a post from Darouet's talk page that we would like to get comments on from other editors.

-(Erichaim (talk) 03:18, 1 January 2012 (UTC)).

Hi Darouet, I would like to discuss your removal of the edits I made to the page "National Defense Authorization Act for Fiscal Year 2012." I agree that the edit lacks citations which I am happy to add. There are only two that are critcal, (1) the text of the law itself and (2) the text of the Authorization for Use of Force on which it is predicated. My edit is almost purely factual and my other comments, such as noting that certain important terms are undefined and some potential implications are worded in a manner so as to intentionally not slant the edits towards my point of view which is critical of much of Sub-section D. I can try again and weave parts of what you put back into the edits, add cites, etc. However, the text you put does not appear to be accurate in critical respects. If I am wrong, I welcome being enlightened about. The text as it now stands includes in the overview the following: "the Act legislatively codifies[6] the President's authority to indefinitely detain terrorism suspects, including American citizens, without trial as defined in Title X, Subtitle D, SEC 1021(a-e) of the bill.[7] Because those who may be held indefinitely include U.S. citizens arrested on American soil, and because that detention may be by the military, the Act has received critical attention by the American Civil Liberties Union (ACLU) and media sources.[8][9][10][11][12]" Most important, where in the Act does it provide for the indefinite detention of American citizens? How can the statement that it does be reconciled with the 1021(e) which provides that “[n]othing 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.” There are other points we can discuss. I note that there are extensive quotations and references to the actual provisions of the Act in my edits, whereas what you put back uses loose language like "terrorism suspects" which does not appear in the law or accurately summarize any of its provisions. The edited version while it certainly can be improved does not contain any inaccuracies that I am aware of and is therefore a significant improvement over what you put back which contains demonstrable inaccuracies. I would like to try to collaborate with you on improving this page if you are interested. Your gratuitous comment that I turned the article into a "sounding board for the State Department" is troubling and makes me question your objectivity and attitude. I only contributed to this article because I believe it is important that people have access to accurate information about legal provisions that threaten fundamental rights. Your statement about the State Department is tendentious and at least a little bizzare. Please respond. -Erichaim (talk) 18:57, 31 December 2011 (UTC)). EricHaim.

Hi EricHaim - thanks for your post here. I especially appreciate your discussion of 1021(e): this qualification was only in 1022/1032 in previous drafts. I also think that any effort to make language more accurate, for instance by replacing the term "terrorist suspects" with language actually used in the bill, is commendable. This latter effort is complicated however by the fact that the "covered persons" in the bill are described as follows: "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." Perhaps "terrorism suspect" is not an appropriate abridgement of the above text (I'm not sure if I put it in myself), which is now available in the article, but you can understand why one might consider it so: the text appears under the subheading "counterterrorism," and the same language is used in articles by the Christian Science Monitor, Alternet, the American Civil Liberties Union, the New York Times, the Guardian, etc., all in articles cited here.

The argument you are advancing has been put forward by a few sources in the media and by some congressmen/congresswomen, but it lies in stark contrast to all sources here. The statement released by the ACLU yesterday (cited in this article) summarized the provisions in the bill as follows:

"The statute contains a sweeping worldwide indefinite detention provision... The statute is particularly dangerous because it has no temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield... While President Obama issued a signing statement saying he had “serious reservations” about the provisions, the statement only applies to how his administration would use the authorities granted by the NDAA... the breadth of the NDAA’s detention authority violates international law because it is not limited to people captured in the context of an actual armed conflict as required by the laws of war."

President Obama Signs Indefinite Detention Bill Into Law ," ALCU, 31 December 2011 [2]

Most other sources provided in this article have similar content and analysis of the bill. What I objected to in your edits was a disregard for the interpretations of all these publications, and in a related sense for the editorial process that has preoccupied me and other editors for some time here. While the interpretation of the bill that you are advancing does not agree with sources here and may furthermore contradict statements issued by the White House and made by the Senators who first introduced the legislation, your perspective is significant in that it is held by a number of commentators nationally.

I would recommend that you add a section to the article titled "Legal arguments that NDAA does not allow the indefinite detention of American citizens," and write a good paragraph or two making that case, with abundant references. In the mean time, any inaccuracies in terms of language cited from the bill itself should be corrected; in my view the omission of any reference to 1021(e) in the current article is one such inaccuracy. As to your objection to my edit summary when I restored the text of the article prior to your changes, I am deeply cautious that this article maintain intellectual independence from those who produced it; i.e. that it remain encyclopedic.

-Darouet (talk) 23:03, 1 January 2012 (UTC)

Good comment and I agree with your suggestions and most of what you say and applaud your efforts. I will try to prepare the section you discussed. I have been a longtime supporter of the ACLU, but I think its "interpretation" is extreme and not supported by the language of the statute. I think the solution is to do our best to confine controversial interpretations whether mine or the ACLU's to sections that clearly indicate that they deal with interpretations, arguments and controversies. I can't remember what I did to create a new section. If you read this before I post another "figured out" note here, would you be kind enough to tell me how to do it. I remember it was easy and next time, I will put in my user notes. Thanks for your help. — Preceding unsigned comment added by Erichaim (talk • contribs) 02:04, 2 January 2012 (UTC)

Hi Erichaim (talk: thanks for your efforts. To create a new section you'll have to have a single line in the text with your title bracketed by equals signs, as in "== your section title here ==", and you'll add in your text below that. I disagree with you that the ACLU's views on this are extreme, as most newspapers have concurred as to what powers are granted (though how anybody believes these will be used is a matter of debate). The issue also hinges around what powers the president already has available to him, as you've suggested previously. One last thing! Don't forget to "sign" your posts in the talk page here by writing four tildes in a row at the end. -Darouet (talk) 04:08, 2 January 2012 (UTC)

Hi Erichaim, you asked: "How can the statement that it does be reconciled with the 1021(e) which provides that “[n]othing 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.” For example, the Fifth Amendment to the United States Constitution contains a potential legal loophole which states that no person shall be "deprived of life, liberty, or property, without due process of law", "except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger". As section 1021 specifically refers to the law of war it may be able to circumvent the right to due process contained in the bill of rights allowing even United States citizens to be transfered to Guantánamo Bay and held there indefinitely without trial. The abuse of the bill of rights and the militarization of the US as a battlefield is widely discussed in the media although perhaps without specifically referring to the exact loophole in the constitution the NDAA is accused of trying to exploit. Sadly my edits regarding this clarification were removed as original work by Qwyrxian. Regards The_Thin_Man_2012 (talk)

Final text and roll call

A link to the final text of the bill, and the roll of yeas and nays should be in a prominent place near the top of the article. Perhaps they are somewhere in the text, but I have not found them. One of the frustrating things about media reports on laws is that news articles almost never provide a way to find out what the bill actually says. More often than not they do not even include the bill's number. Wikipedia can and should do better. 75.36.151.35 (talk) 04:50, 1 January 2012 (UTC)

I believe footnote 1 as of now provides a link to the "enrolled" version of the bill which is the final version of the bill. If anyone wants to double-check me on that it would be welcomed. In this case, the sections we are discussing are not lengthy and I think anyone editing this page needs to read the actual statutory language. A comment in one of the above posts that I think is extremely important is that much of the controversy over this bill is a result of disagreements and arguments over the extent of the President's detention authority pursuant to the Authorization for Use of Military Force (Public Law 107–40) under existing law, which means what the courts have said about it, since the Authorization itself is extremely brief and grants a general authority to use "all necessary means" but has no specific provisions about detention. When I have time I will look at other pages that address this issue and post any links or comments I think may be helpful. As stated above, it is important to distinguish in what we write between what the actual provisions of the bill, i.e. what is written in the bill whether vague and ambiguous or not, from how it might be interpreted. Both seem appropriate as well as summaries and references to arguments for and against. Making these distinctions is something that the press often does not do well. We can do better. (Erichaim (talk) 20:35, 1 January 2012 (UTC)).

Alright...

How long before the US government censors this page and removes it from Wikipedia? — ᚹᚩᛞᛖᚾᚻᛖᛚᛗ (ᚷᛖᛋᛈᚱᛖᚳ) 06:05, 1 January 2012 (UTC)

Wikipedia is not censored. Even if they wanted to (which would be pretty dumb), there's no way in which the US government could plausibly control our content. Robofish (talk) 18:36, 2 January 2012 (UTC)

Arrest the owners using extreme rendition? :P — Preceding unsigned comment added by 71.196.246.113 (talk) 00:20, 7 January 2012 (UTC)

Actually, SOPA is literally the other jack-boot falling. It would be simple to block HTTPS to Wikipedia and filter out the article using a firewall like China does. 71.196.246.113 (talk) 00:27, 7 January 2012 (UTC)

Bias

This article is extremely biased against the NDAA. The entire introduction is a discussion of controversial aspects of the act. The controversy surrounding the bill should be limited to a single section of the article, and perhaps briefly mentioned in the introduction. — Preceding unsigned comment added by 174.109.90.242 (talk) 20:56, 1 January 2012 (UTC)

See Intro Issues below (Erichaim (talk) 01:43, 2 January 2012 (UTC)).

Generality

This article doesn't present a very general discussion of the NDAA, it simply focuses on a few controversial aspects. The sections discussing indefinite detention, etc. should be moved to the "Controversy" section. Also, a section should be added discussing general aspects of the bill, legislative history, etc. And of course the introduction is a mess. — Preceding unsigned comment added by 174.109.90.242 (talk) 21:34, 1 January 2012 (UTC)

Hi 174.109.90.242 (talk): the NDAA for 2012 is especially notable because of these controversial provisions (as will be apparent from news coverage over last month, and from reading any or all of the sources provided in this article). If you'd like to add material relating to other aspects of the bill please do so. A sentence or two from any material you include could also be placed into the introduction to give a summary of what you've contributed. -Darouet (talk) 23:08, 1 January 2012 (UTC)

I understand where you're coming from, this bill is very upsetting to me personally. The truth is, Wikipedia is not the venue for getting the word out about the possible negative ramifications of the NDAA for 2012. This is not a good article, it is biased and poorly written. I'm not a serious editor and I'm not going to contribute to the article, but I want to urge editors to take a step back from their personal political views and look at this article objectively. I think they will come to the same conclusion I have. — Preceding unsigned comment added by 174.109.90.242 (talk) 05:50, 2 January 2012 (UTC)

Whatever one's personal feelings, and I think you've well described the distance that should be maintained between personal attitudes for this or any Wikipedia article, what you're effectively arguing is that this bill is not notable because of its controversial provisions which have received a lot of press coverage ("discussion of this should be removed"), and is notable for all the other text it contains, which hasn't received a lot of press coverage ("discussion of this should be put in"). Any decision to remove existing material and replace it with something else as described above is a question both of notability, and also of politics. If you read an encyclopedia entry on this topic now, or in 100 years, you should expect to see a concise and accurate description of what NDAA 2012 is/was and why it matters/mattered. If such an entry includes more material on other provisions of the bill, on total expenditure, etc., I think this is reasonable. Removing substantial discussion of the more controversial provisions in the bill however cannot be justified on the basis of notability. P.S. I should add that I'm not trying to justify the tone or wording throughout this article, which likely needs improvement. -Darouet (talk) 07:05, 2 January 2012 (UTC)

The bill is notable for its controversial provisions, but I believe undue weight is given to them at the expense of more mundane generas aspects of the bill, such as the budget allocated to the military for 2012, its funding, legislative history, etc. All I'm asking is that a little more attention be paid to general information concerning the bill so that it doesn't appear as though the controversial provisions are the ONLY significant provisions in the bill. — Preceding unsigned comment added by 174.109.90.242 (talk) 20:02, 2 January 2012 (UTC)

Agreed, actually. -Darouet (talk) 04:20, 3 January 2012 (UTC)

Is There a Dollar Amount?

I came here looking for the dollar amount in the bill, but I couldn't find it. Is the amount known? Is it in the article, and somehow I missed it? I expected to find it in the introductory paragraph. Ramsey2006 (talk) 02:15, 2 January 2012 (UTC)

Where is the youtube video where a democratic congressman/senator said the whitehouse in fact wanted the controversial wording?

I saw it on a previous version of this article but I don't see it anymore. I'm personally glad to see it taken out, but I'd still like to research where that politician got his information from, and I'm willing to research it more fully if anyone can point me in the right direction. Thanks, 완젬스 (talk) 01:52, 3 January 2012 (UTC)

Yes, there was actually a threat to veto it if it didn't apply to US citizens. Anyone got a more reliable reference than someone campaigning on that issue? It's not against Obama as president but it's still clearly biased. The veto would have been redundant though with 86% of the House of the Senate voting for it. They must have wanted it ASAP for some reason... 71.196.246.113 (talk) 00:15, 7 January 2012 (UTC)

This is the Youtube video. Also Obama's position is referenced in many sources, including in the Glenn Greenwald piece from Salon, which I re-read today. -Darouet (talk) 03:35, 7 January 2012 (UTC)

Thank you very much! That's the one I was looking for. Now I'll check where on earth Carl Levin learned this, if in fact it can be found on google, lol. I dunno if this thing was buried intentionally or not, but it sure attracts a lot of bad light. 완젬스 (talk) 00:18, 8 January 2012 (UTC)

EricHaim edits thru 1/13/12

Happy New Year, at least for those not detained without any prospect of trial. Black humor aside, I have made some significant edits to the introduction and expanded the discussion of 1021 in its section. I have attempted to make the introduction more neutral by re-framing the issue of the authority to detain citizens as a matter of controversy. This issue is controversial, in part, because it is not clear what authority the President had under AUMF before. There have been court rulings on the issue, but no definitive ruling by the Supreme Court that covers the field. Complicating the issue is the fact that modern presidents,(at least FDR on) Republican and Democrat alike, have claimed expanded powers to use force without specific Congressional authorization, usually invoking the Commander-in-Chief provision of Article 2, section 2 and claimed inherent executive powers. (See e.g. Crenson and Ginsberg, Presidential Power Unchecked and Unbalanced (2007) and Milkis and Nelson, The American Presidency: Origins and Development, 1776-2007 (2008).) No modern President that I know of has, at least while in office, conceded that Congress' power to declare war prevents him from deploying armed force in what the President deems to be the interest of national security. It is in part because of these developments that we, as citizens, should rightly be concerned about lack of action on the part of Congress and the courts to articulate limits on the President's "war powers." That said, and given the heated emotions that this subject can give rise to, I believe it is imperative that we, as editors, be extra vigilant to make the article neutral and not confuse the contentions of advocates with efforts to state matters as objectively as possible. I believe my edits have moved the article in that direction. I would like us to go further than what I have done. For example, I believe ACLU's strong views on this issue should be reflected in the controversy section, but I have left it in the intro out of deference to our page's originator. Likewise however, also note in the encyclopedia should be the views of conservatives who believe that the President's independent Constitutional powers include the power to detain U.S. citizens during war time, even when the "war" is a potentially unending war with a concept, i.e. "terrorism" rather than a recognizable entity and its allies. Thanks for whatever time and attention you have given to reading my comment. I look forward to comments and criticisms and will continue to work on this page over the next few months. (Erichaim (talk) 09:13, 3 January 2012 (UTC)).

I think the edits are good. As somebody mentioned above, more of the bill deserves attention; the changes you've made to the introduction open space for that, and I hope other editors will contribute more on the rest of the bill to the body of the article. -Darouet (talk) 21:07, 3 January 2012 (UTC)

Hello! I've finessed your intro edits a bit, without making any changes to meaning. :) Wanted to mention this here before going ahead: any strong feelings about deletion of the word "primarily" from the intro at

Among its numerous topics, the Act primarily "authorizes funding for the defense of the United States and its interests abroad..."(continued quotation from obama's "signing statement", in which he outlines the main reasons he signed the Act.)

It reads to me as misleading within this context. An additional reference that supports this assertion would work, too. Thoughts? Hedonistbot4000 (talk) 09:52, 4 January 2012 (UTC)

The lengthy quote at the beginning serves less to provide information about the bill and more as a kind of sales pitch (obvious POV language, which isn't surprising, as Obama is justifying his signing of bill). If somebody has initiative to just write an objective summary that'd be great... requires research however. I'll not remove it unless we have something better. -Darouet (talk) 00:31, 5 January 2012 (UTC)

Just to note I fixed sight to Signing Statement to conform to better, standard Wiki practice. I took out for now the sentence referring to the CRS summary as it appears they have not yet provided a summary of the final bill. When that is available I will add a note. Thanks for comments and improvements. Darouet, thanks for feedback and encouraging words. (Erichaim (talk) 09:31, 13 January 2012 (UTC)).

New Sanctions on Iran

I'm going to add a section on the new sanctions on Iran, which are contained in Sec. 1045 of the NDAA. Any help would be appreciated. -Thucydides411 (talk) 08:28, 5 January 2012 (UTC)

I think it would make sense to rename the "Controversy" section to "Controversy over Indefinite Detention Provisions" or "Controversy over Indefinite Detention," since I'm adding a section on Iran, and the controversy section deals only with indefinite detention. -Thucydides411 (talk) 08:32, 5 January 2012 (UTC)

Full Text of the Bill as passed by Congress is wrong

It looks like the link "Full Text of the Bill as passed by Congress" is to the version passed by the House in May, H.R.1540, which seems to have some critical differences from what was actually passed into law after amendments by the Senate in December, S.1867. Specifically relating to authorization to detain US citizens:

"AUTHORITIES.—Nothing in this section shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person, regardless whether such covered person is held in military custody."

Was changed to:

"AUTHORITIES.—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."

I'm still not entirely clear on the procedures, so do double check. —Darxus (talk) 23:33, 5 January 2012 (UTC)

To be clear, I haven't actually verified this section applies to whatever is said about indefinite detention.—Darxus (talk) 23:38, 5 January 2012 (UTC)

I'll say the full text is wrong. In the article it says Sec. 1021 pertains to "Indefinite detention without trial", while in the version of the bill I just downloaded from GPO (Jan. 07, 2012) Sec. 1021 is "Budgeting for construction of naval vessels". Sec. 1031 is now "Definition of individual detained at Guantanamo", which reads completely different. Ebrockway (talk) 18:44, 7 January 2012 (UTC)

I spent an hour last night trying to figure it out: over the past week an equal number of articles have appeared in the press saying that indefinite detention is covered either by sections 1021-2 or 1031-2, so that's not helpful. However if you go to this list of bill versions you can see that in the most recent version, passed by the House and Senate both, indefinite detention is in section 1021. Also, Obama's signing statement refers to section 1021 as being that covering indefinite detention: "Section 1021 affirms the executive branch's authority to detain persons covered by the 2001 Authorization for Use of Military Force." -Darouet (talk) 20:02, 7 January 2012 (UTC)

THE NDAA 2012 is NOT LAW

<redacted rant from User:70.52.24.166>

Wikipedia is not the forum for this. -Darouet (talk) 02:42, 12 January 2012 (UTC)

And I'm not going to let xyr use this page to provide links to xyr causes and sites, so I've redacted the IP's rant. Qwyrxian (talk) 03:10, 12 January 2012 (UTC)

Edits by Soldier397 and the unexplained content of various amendments

I just wanted to note that Soldier397 (talk) has made a number of edits addressing the content of the Udall Amendment that was rejected by the Senate. This subject has been addressed by the New York Times, the LA Times, CBS News, by the ACLU and others... From the text of the article right now I'm still not sure what the Udall Amendment does. It seems reasonable to write that the Amendment requested a statement by the Executive on what exactly their detention policy is, but whereas some news sources seem to claim that the Amendment removed those provisions many object to, is this obvious from the text of the Amendment itself?

Soldier397's edits haven't clarified this but they may have corrected text in this article that was incorrect. We should keep working on this... -Darouet (talk) 20:18, 21 January 2012 (UTC)

Unsourced statement should be removed

The last sentence of the the first paragraph of the Section on Legal arguments that the legislation does not allow the indefinite detention of US citizens is un-sourced, mis-leading at best and inaccurate at worst. It reads as follows: "In the years that followed the September 11 attacks, the AUMF was interpreted to allow the indefinite detention of both citizens and non-citizens arrested far from any traditional battlefield, including in the United States." The first problem with this sentence is that it does not identify who "interpreted" the AUMF in this fashion. There is a world of difference between the "interpretations" of the White Office of Legal Counsel, for example, and the holdings of U.S. Supreme Court. The Supreme Court has not ruled that the AUMF authorizes indefinite detention. I am not aware of any lower federal court decisions to that effect. If they exist, they need to be identified and cited. The sentence as it is should be removed. Please comment if you agree or disagree with my assessment. (Erichaim (talk) 03:58, 30 January 2012 (UTC)). (24.7.43.83 (talk) 03:46, 30 January 2012 (UTC)).

Hi Erichaim - I just skimmed the Joanne Mariner piece from Justia.com cited before the sentence you've mentioned. You may be in a better position to evaluate the accuracy of the following statements from the piece than I:

"During the Bush years, despite massive public and press attention to the administration’s detention policies, Congress remained largely out of the picture. While the USA PATRIOT Act contained some provisions on detention, they were never put to use; the Bush administration preferred to create a detention system that was, it assumed, largely free of legal constraints and judicial oversight.

"The military prison at Guantanamo and the CIA’s secret prison system were therefore created by executive fiat, without congressional input or restriction. When cases challenging Guantanamo and the military detention of US citizens on US soil got to court, however, the administration claimed that the Authorization for Use of Military Force (AUMF), a joint resolution passed by Congress in September 2001, gave congressional approval for those detentions.

"The AUMF, which authorizes the president to use “necessary and appropriate force” against those whom he determined “planned, authorized, committed or aided” the September 11 attacks, or who harbored such persons or groups, is silent on the issue of detention. A plurality of the US Supreme Court agreed with the administration, nonetheless, that the power to detain is necessarily implied by the power to use military force.

"Hamdi v. Rumsfeld, the 2004 ruling that upheld the US government’s detention power, left many questions unanswered. Because it involved a prisoner who was captured during the armed conflict in Afghanistan, it did not raise the Bush administration’s broad claims of a “global war on terror,” in which terrorism suspects far from any battlefield were treated like enemy soldiers. It did not even give much guidance regarding the scope of the armed conflict, geographic or temporal, although it included, in dicta, a skeptical reference to the administration’s broadest claims.

"Congress maintained its hands-off approach to detention during the entirety of President Bush’s two terms in office, even as it legislated on closely related issues like minimum standards of humane treatment and the rules for military commission proceedings. When Obama took office in January 2009, however, Congress’s attitude changed. Many members of Congress reacted negatively to Obama’s stated goal of closing Guantanamo, and, since that time, Congress has imposed various ever tighter restrictions on the release and transfer of detainees.

"One last historical fact that is important to remember, when considering the scope of the NDAA, is that the Bush administration held two American citizens in indefinite military detention, Yaser Hamdi and Jose Padilla. While Hamdi was picked up as a combatant in Afghanistan in 2002, Padilla was arrested in a civilian setting in Chicago that same year. The Padilla case was never definitively adjudicated—Padilla was finally moved to the civilian justice system in 2006 — but it underscores the Bush administration’s claim of power to hold even American citizens picked up in the United States indefinitely without trial."

The NDAA Explained," Joanne Marine for Justia.com: [3]

Do these statements strike you as accurate? For instance Mariner states that congress has "imposed various ever tighter restrictions on the release and transfer of detainees" since Obama came into office, and also implies that these impositions have run counter to administration policy. Do you know what restrictions she's referring to? Also, according to Levin, the NDAA detention language was requested by the Administration, so the claim that NDAA represents a conflict between the White House and House Republicans is, on this point at least, spurious. -Darouet (talk) 00:49, 31 January 2012 (UTC)

Upcoming work to address criticisms of the article, COI declaration

Hi, I've been asked in my capacity as an WP:OTRS volunteer to address some specific readers' criticisms about this article. Over the next few days and possibly weeks I'll be working with those readers to help them express their views and to navigate our policies. There's of course no guarantee that the community, or even I will agree with their criticisms; my role is to facilitate their engagement, explain how things work, and try to be constructive while improving the article in a mutually agreed-upon direction. At this point I'm acting under the presumption that the readers will remain anonymous, but I've strongly encouraged them to follow our WP:COI guidelines and disclose any conflicts of interest they might have. I've also led them to believe that doing so will be in their best interest and will lead to a fruitful albeit serious discussion. It would be great to show them that is indeed the case. I've already informed them of our core policies and the need for verifiability and neutrality in all their forms, so I hope they're off to a good start.

In my capacity, I want to be clear about my own COI. I am a regular and experienced editor, used to working in controversial subject areas, helping new editors, and specifically helping COI editors. I have no special authority over this article and will defer to community consensus at all points. I have thought hard about how best to help the readers I'm working advocate their views while also remaining neutral and not compromising my ability to faithfully make suggestions or edits. My working guideline for now will be to plainly state when and where I am helping to present or frame the views of the readers I'm working with versus when I am expressing my own opinions as a hopefully neutral editor. If all goes well, I will assist those readers to express their views themselves, though I acknowledge that the site and its operation can be a formidable obstacle for new editors, and I might help them out in certain regards. If my involvement leads to any skepticism of my own point of view, I will take on COI best practices and present all edits for review prior to making them, or just let others make changes and stick to the talk page. At this point I'm not sure that's necessary or in the interest of improving the article, but I've already considered it and will again if it becomes an issue.

My first, personal impression of the article that it is in reasonably good shape considering the timeline. Notably, the controversy has received a significant portion of the attention of the article. Having reviewed the available sources this does not necessarily strike me as undue weight; however, a) the readers I'm working with are concerned that it is indeed and b) other aspects of the article unrelated to the indefinite detainment issue appear to be underdeveloped or wholly lacking. Also, there seems to be an opportunity to replace some references that might be perceived to have a liberal bias (Motherjones, Alternet, etc.) with sources that are generally unbiased, and to add more interpretations from typically conservative/neoconservative/otherwise-supportive points of view. I understand that attributing opinions is well and good, and would only foresee replacing sources where there is no meaningful loss of article content. Other concerns have been raised about specific quotations being presented out of context, and a variety of other small issues perceived by them to tip the neutrality of the article against the Bill, which they'd like to raise for discussion in the near future.

To facilitate working on the article I'm collecting quoted excerpts from sources which I will keep as a subpage of this article's talkspace here. I've tried to limit the length of the quotations, and if there are copyvio concerns will do so further.

I'd be happy to answer any questions that you might have about my role or other suggestions for improving the article. I'm looking forward to a useful and civil exchange, and to expanding and improving the article while helping these new editors to express their views. Ocaasi ^{t | c} 08:46, 29 February 2012 (UTC)

Thanks Ocaasi for your notice. Just to be clear, have you declared a conflict of interest because you will be working, to some extent, on behalf of editors with the complaints listed above? I am not familiar with the WP:OTRS process.

I can't speak for other editors, but from my own perspective, the addition of more information regarding the NDAA 2012 would be welcomed. There was a push for this some time ago by editors coming from many different political perspectives, and it significantly improved the article (I'm happy to say that I helped, though the majority of work was done by others). I agree with you that the article's attention given to the controversy is merited given the nature of the global coverage of NDAA, but the addition of more encyclopedic material would only improve the article.

Perhaps one of the most critical improvements that could be made to this article would be to place quotes in their proper context, if they are misrepresented. Thank you for offering to help with this.

All this said, I doubt I will agree with you about the proposal to remove more left-wing sources in favor of "more balanced" sources. At this time, the article cites news sources that include the New York Times, Christian Science Monitor, the Guardian, the Los Angeles Times, the Wall Street Journal, Forbes, and other non-American news sources besides the Guardian. The article also cites left-wing news sources including (arguably) the ACLU, Mother Jones, Salon.com, and the World Socialist Web Site. The perspectives brought by these sources are important, and I actually think that the arguments made in them deserve a greater place in this article, especially for instance in the article section titled "Arguments that the NDAA 2012 allows indefinite detention."

While I don't agree that well-written and encyclopedic material should be removed, I would agree that more conservative arguments regarding NDAA 2012 could receive more attention. I think that the current Administration already has a substantial voice in this article, but there may be more conservative positions that are unvoiced, and can be productively included.

Again, Ocaasi, thanks for your note, and I look forward to working with you, among others, to improve this article. -Darouet (talk) 14:17, 29 February 2012 (UTC)

Thanks for the welcome! I reviewed the article history and you have done a lot of nice work on it, along with several others (and a lot of vandalism reversion!).

OTRS, the group that handles official communications to the Wikimedia Foundation (Wikipedia's parent organization) occasionally receives contact from people who have issues with articles but don't know how to address them, either because they have a conflict of interest or are just completely novice editors with an opinion about the article. In this case I'm declaring a conflict of interest because I might be working with these editors at times to help them express their views in a way that could make it unclear whether they are mine or theirs. I do have my own opinions on the article and I intend to keep separate which is which. I don't intend to edit on their behalf as of now, but if that changes I will make it clear. I frankly have learned so much about this subject the past week that I don't want to be precluded from editing directly; instead I'd rather just carefully manage my role with these new editors so that I can be their liason and a neutral reviewer of their ideas while also working with them and you and others to improve the article together. That's a lot of words for a non-definitive answer. I recognize that it could become a gray area, so: in short, I have no particular COI at the moment and seem to agree with much of your opinions stated above; however, my work helping these editors may bring me into a COI, and if that arises, I'll be more cautious and forthcoming about it. I'm still learning what my exact role with them will be and will keep you posted on this page.

I also agree that expansion of topics other than the detainment issue would be of great value. I've started gathering some sources for that, but I must say the vast majority of those sources focus on the controversy over indefinite detention, which does seem to justify its weight in the article. I believe that is the centerpoint of the new editors' criticism, so that's something myself and others can talk with them about.

I have a summary of 'quotes out of context' given to me by the new editors and if they're okay with it, we can look through it over the next few days and evaluate them individually.

I only intended replacing liberal sources with balanced ones in cases where arguments were not being made. For example, if the New York Times and Alternet could each be used to source a fact in the article, then it would make sense to use the former. If on the other hand, an opinion was being attributed, then a POV source is indeed appropriate. My initial review of the sources in the article found that there were about 25% appropriate primary documents, 35% mainstream news, 35% liberal/libertarian sources, and at most 5% from conservative/supportive sources. I have looked extensively and there are very few that I have come across through Google News archives. The one or two I did find could be useful additions. Otherwise, we might have to keep digging to add balance in that regard.

I tend to agree with you that removing material is not the way to go. That is another area where the new editors might perceive a weight problem. Something to discuss with them once they're up to speed.

Sounds like we have a good basis for getting started. I'm speaking with the new editors this week and will have more details and constructive proposals forthcoming. Your help is really appreciated. Ocaasi ^{t | c} 15:11, 29 February 2012 (UTC)

Your explanation of the sourcing issue makes a lot of sense. I was thinking about this today, as I had a little in the past, and I believe that one of the reasons why it's been easier to cite left or libertarian views is that, understandably, they have produced a lot of material in their eagerness to cover the issue. Adding more conservative viewpoints will improve the article by explaining the diversity of reactions to (and perhaps motivations for) the legislation. This can only help our readers.

Overall, your perspective is great. Thanks for all the research you've obviously been doing on this topic. I understand your frustration over the difficulty of finding material that's not related to the detention provisions: in reading for this article, I came to understand that's there's probably far too little analysis of major spending legislation being produced in the popular press. I'm impressed that you've found material and am happy you'll contribute. -Darouet (talk) 17:50, 29 February 2012 (UTC)

Reader COI declaration

This is Quirin42. I will be working on improving this page. I look forward to working with all of you. I work in the government on these issues as a policy expert on constitutional law, civil liberties, and national security. Quirin42 (talk) 16:50, 3 March 2012 (UTC)

Reader Criticisms: Phone conversation with COI editors summarized

I just had a nice long chat with The Readers. At this point they're not comfortable editing themselves, but they acknowledge that they have a conflict of interest and would like me to relay, though not advocate for those views. They're still looking into how and whether to edit the talk page themselves and I advised them about the risks and benefits of doing so.

We discussed the article in general, and they were pleased to see that many of their criticisms had substantially already been improved upon by edits since they last looked at the article.

Here are some specific criticisms/suggestions we discussed that they'd like me to pass on for discussion.

1. Their initial concern was that the article doesn't give the reader a sense that the NDAA is a yearly bill, and an expansive one, which is critical for Defense funding. They contended the article makes it seem like the NDAA is not a regular event but about one specific detainment issue.
2. They understood that detainment issues were prominent, and justifiably, but they want to include more information about the non-detention aspects of the bill. They had prepared their own synopsis from the bill text itself, and I encouraged them to look for secondary source summaries instead. They are looking for sources to do that; in particular, they want to know if Congressional Research Service reports are seen as secondary, reliable, and/or independent sources.
3. They objected to the first header "Indefinite detention without trial: Section 1021". They view that header as non-neutral, since it defines 1021 as being solely and explicitly about indefinite detention without trial, when they argue it is not just about and that and the extent to which it is about that is part of the debate. They would prefer a less descriptive title such as 'Section 1021' or a more neutral one such as 'Detainee provisions' or 'Detention provisions'.
4. They objected to the sentence in that first body section which includes "...under the law of war, 'without trial, until the end of the hostilities authorized by the [AUMF].'" They note that the without trial component is only one of 4 aspects listed in the bill and they'd like us to present all four of them, giving a more comprehensive treatment to Section 1021 rather than focusing solely on the 'without trial' aspect.
5. They noted that other aspects of the legislative history, such as the failed amendment to include a sodomy provision were absent from the article. While not encouraging the inclusion of that, or comparing it to the detention issues which did pass in the final bill, they left open that other similar aspects might be dealt with as well, provided they also received attention in reliable sources.
6. They had a general criticism that a reading of the article made it seem as if these detention issues originated solely from the 2012 NDAA, when they argued they have been discussed for years if not centuries in American politics, and particularly in relation to the 2001 Authorization for the Use of Military Force (AUMF) and Hamzi Supreme Court Case.
7. After I explained to them that we should use secondary sources over primary sources, They noted that reference 18, which is a primary source, should have a secondary source supporting its significance.
8. They noted that reference #20 links to a youtube channel which is a copyright violation (well, they asked about Youtube, and I realized it was a copyvio). We discussed finding the original source video, or at least removing the youtube link while leaving general citation info.
9. They noted that reference 20 is to a Carl Levin C-Span video of a house speech, which is a primary source. We discussed referencing that in addition with a secondary source that identifies Levin's speech as significant. Reliable sources are available for this on the Sources subpage.
10. We discussed that Levin's speech, which was widely cited in the media, has been contradicted by his later statements. (The article currently gives the impression that Levin's view has remained constant)
11. They noted that reference 30 has a dead link.
12. They contended that the first sentence of the American and international reactions, which reads--"Section 1021 and 1022 have been called a violation of constitutional principles and of the Bill of Rights."-- was not a neutral introduction to the topic and gave an over-stated impression (I also noted that attribution is not given and "has been called" is passive voice, which does have a more sweeping connotation.)
13. They noted some ambiguity in relation to uses of the terms 'vote' and 'provision' in which it was unclear whether the article was referring to the 2001 AUMF or 2012 NDAA or something else.
14. They thought the Voice of Russia reference was non-neutrally speaking for Putin's regime and that it was not the best example of an independent or reliable source in terms of criticizing the bill.
15. They thought we should include more reliable sources that espouse the view that the NDAA didn't change existing detention law and doesn't apply to American citizens. They provided some sources, and I found some others which are located on the Sources subpage.

Overall it was a good conversation and they seemed to have constructive suggestions. They weren't adversarial and they wanted to work within our discussion process. I'd like to hear what other editors think about these criticisms. I'll just note again that I have my own opinions on these issues and hope to be a neutral participant in the debate. At this point I am not going to argue or advocate for them; having relayed their criticisms I intend to act as a regular editor and express my views accordingly. Ocaasi ^{t | c} 22:49, 1 March 2012 (UTC)

Re 5: I earlier added this short text with citations concerning two rejected amendments related to "Don't ask, don't tell". It was removed with the comment: "Every bill has dozens of rejected amendments; listing them is out of scope per WP:UNDUE" It was perfectly factual info and included no opinions, so UNDUE was clearly off point. And some amendments are of more significance than others. (I omitted mention of a third that would have done nothing but repeat the text of DOMA.) I'd like to think is safe to restore that material now. Bmclaughlin9 (talk) 23:30, 1 March 2012 (UTC)

You could propose the text on the talk page and see if there's consensus... Obviously every defeated amendment is not noteworthy, but those that received significant attention from sources would be. I could go either way on this, I think it depends on the amendment and the amount of detail it receives both in sources and in the article text. Ocaasi ^{t | c} 23:52, 1 March 2012 (UTC)

I can't speak for others, but for my own part, many important points are raised above: some pose questions I can't personally answer (about the CRS for instance), and others offer relatively straightforward solutions. Including more legislative history of the bill is a good idea, given consensus here. I also think that the question of what new powers are given by the NDAA is a worthwhile one and hardly discussed in our article, though it is discussed in the references. As The Readers noted in their points above, many see the detainee provisions of the NDAA 2012 as wholly consistent with powers already granted by the Authorization for Use of Military Force Against Terrorists (AUMF). This is not clearly the case, as some commentators feel that the NDAA 2012 makes those powers explicit and therefore strengthens them.

Regarding renaming the section on detainment, I'm not sure I agree: these provisions are what the section and even the bill itself are primarily known to the public for. Renaming them "section 1021 and 1022" might make sense for a researcher within the CRS drafting an internal document for their peers, but does it make sense here? Similarly, mentioning all the other aspects of detainment involves detailing less notable provisions alongside more notable ones, and may have the effect of obscuring what's really notable about this subject. However, I can see how my own perspective here already includes value judgments. Perhaps these judgments are not mine alone and are shared by the majority of news sources that covered this topic. But even if that is true it doesn't make them correct...

I am not sure if Levin subsequently changed his position, and am not sure what should be done about the youtube videos. He does make one statement in the sources page that Ocaasi (kindly) compiled which isn't consistent with what I've read about the bill: "It does not allow the military to make arrests on U.S. soil." Does anybody have comment on this?

Lastly, I would of course agree that comments from the Voice of Russia reflect the position of Putin's government and sections of the establishment within Russia. However, I would say that the tendency of the mainstream press in a given country to give voice to the regime or governing administration is universal, and in some ways the United States can be better, and in others, no better at all. I don't think that anyone here would argue that the English Wikipedia site is anything other than international in its perspective (which does not mean it endorses the Voice of Russia).

Thanks for all the great work so far. -Darouet (talk) 13:47, 2 March 2012 (UTC)

Requirement for military custody: Section 1022

The first sentence of this section is false and misleading. It reads: "All persons arrested and detained according to the provisions of section 1021, including those detained on U.S. soil, whether detained indefinitely or not, are required to be held by the United States Armed Forces." This sentence suggests that citizens of the United States arrested and detained are required to be held in military custody. That is not the case.

Section 1022 of the NDAA is actually called "Military Custody for Foreign Al Qaeda Terrorists." The section includes a subsection that reads "The requirement to detain a person in military custody under this section does not extend to citizens of the United States." Therefore, I would propose the text of this section to read as follows:

Section 1022 required that those persons detained pursuant to Section 1021 be held in military custody. That requirement did not extend to American citizens or lawful residents of the United States.

Section 1022 included a provision allowing the President to waive the requirement if the President submits to Congress a certification in writing that such a waiver is in the national security interests of the United States. President Obama has issued sweeping waivers that would exempt future prisoners from the requirement.

What does everyone think? Quirin42 (talk) 17:25, 3 March 2012 (UTC)

Hi Quirin42, I think that your proposed changes would be helpful given minor alteration to the second sentence, which I'll suggest below:

"Section 1022 required that those persons detained pursuant to Section 1021 be held in military custody. That requirement did not extend to American citizens or lawful residents of the United States, whose detention by the Armed Forces is permitted but not required."

The reason that I think we should make this change is that many editors wrongly believed section 1022 to protect American citizens from the possibility of military custody, though it does not do so.

One thing that we might consider would be describing the "six [member] interagency national security team" that will be making decisions regarding who is and is not required to be held in military custody. Perhaps this can be done later in the article.

As a last note, the current text reads "according to the provisions of" instead of "pursuant to" section 1021. I'm not sure if I or another editor authored this phrase, but I do remember thinking for some time early on about the phrase "pursuant to" because I feared it might appear confusing to some readers. If you or others think this fear is unfounded I am willing to yield on that point. Also, I am sorry if no other editors chime in (this article is getting much less attention than it used to), and thank you for your help. -Darouet (talk) 18:51, 4 March 2012 (UTC)

I hope I'm not making this more complicated than it need be, but another point is that the description should probably be written in the present tense, since this article describes current law in the United States. One subtlety lost in the newer proposed version is that for lawful residents of the United States, but not citizens, "requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States." It is not clear what "on the basis of conduct taking place within the United States" means, and this ambiguity is presently simply as exemption in the proposed change. -Darouet (talk) 19:07, 4 March 2012 (UTC)

And as a last point, Quirin42, once we've come up with a solution here, please feel free to make those changes, and don't worry too much about formatting (since you're new as an editor to Wikipedia). I or others will be happy to help fix any small formatting problems on the main page to make sure the text you've contributed to can appear as you want it to for readers. -Darouet (talk) 19:11, 4 March 2012 (UTC)

Good suggestions. Definitely will make present tense. Darouet -- are you ok with your modified sentence reading: "Section 1022 required that those persons detained pursuant to Section 1021 be held in military custody. That requirement did not extend to American citizens or lawful residents of the United States, whose detention by the Armed Forces is permitted in certain circumstances under existing law, but not required." If so, I'll fix up my proposed changes and add those in. Quirin42 (talk) 14:28, 5 March 2012 (UTC)

How is this? "Section 1022 requires that those persons detained pursuant to Section 1021 be held in military custody. That requirement does not extend to American citizens or lawful residents of the United States, whose detention by the Armed Forces is permitted in certain circumstances under existing law (see Section 1021), but not required."

Because I suspect you have some deeper knowledge of this subject that most people, would you consider contributing a paragraph outlining the basis upon which citizens could, arguably, be held in military custody before this bill was passed. These "controversial" sections refer, for instance, back to the AUMF passed in 2001. I do not know how the supreme court cases that have addressed these issues in the past decade (e.g. Hamdi v. Rumsfeld) have affected this. -Darouet (talk) 20:34, 5 March 2012 (UTC)

There's good analysis, both supportive and critical of the prior detention status and potential changes in light of this bill on the sources page in this section. The paragraph could be based on those published writings. Ocaasi ^{t | c} 21:22, 5 March 2012 (UTC)

Darouet -- I think I can resolve your question on existing law. Justice O’Connor’s plurality opinion in Hamdi v. Rumsfeld is a good example of how existing law (that is the law before the FY12 NDAA was passed) authorized military detention of U.S. citizens.

O’Connor described the Hamdi case as answering a narrow question: “whether the detention of citizens falling within that definition is authorized.” On that question, the Court held, “There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF.” Citing the Court’s decision in Quirin in 1942, O’Connor went on to say, “There is no bar to this Nation’s holding one of its own citizens as an enemy combatant.” She quoted from the government’s brief which said, “A citizen, no less than an alien, can be part of or supporting forces hostile to the United States or coalition partners” and “engaged in an armed conflict against the United States.”

So the point I was trying to make by including "under existing law" is to make sure readers understand that the FY12 NDAA did not originate the concept of or change the law regarding military detention of U.S. citizens. Existing law on that question goes back much further to a series of cases around World War II and the Civil War. Quirin42 (talk) 22:43, 5 March 2012 (UTC)

SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.

(a) IN GENERAL.—Congress affirms that the authority of the

President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) COVERED PERSONS.—A covered person under this section

is any person as follows:

(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.

(2) 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.

(c) DISPOSITION UNDER LAW OF WAR.—The disposition of a

person under the law of war as described in subsection (a) may include the following:

(1) Detention under the law of war without trial until

the end of the hostilities authorized by the Authorization for Use of Military Force.

(2) Trial under chapter 47A of title 10, United States

Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111–84)).

(3) Transfer for trial by an alternative court or competent

tribunal having lawful jurisdiction.

(4) Transfer to the custody or control of the person’s country

of origin, any other foreign country, or any other foreign entity.

(d) CONSTRUCTION.—Nothing in this section is intended to limit

or expand the authority of the President or the scope of the Authorization for Use of Military Force.

(e) AUTHORITIES.—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.

H. R. 1540, "National Defense Authorization Act for Fiscal Year 2012"

Thanks Quirin42 for your review of a portion of this history, which is lacking from the current article. For my own part I wholly agree with you that this authority has existed and been exercised previously, and the two examples you cite are perfect illustrations. However I am unconvinced that the NDAA does not, by "affirming" a series of (obviously) controversial detention authorities, help establish them in the way of use, and in contexts beyond open civil war or global war:

• Authorization and explicit detailing of these provisions gives legislative sanction to authorities that may be and certainly will be exercised by the executive branch. This legislation will no doubt be cited in future briefs and court cases as a source of authority.
• The War on Terror is in many ways a different kind of "war" than the American Civil War or the Second World War.
• Many major news sources that you will find on this legislation suggest that it did "create" or establish new detention authorities. While I agree with you that these suggestions may either distort or a simplify the current legal state of affairs in the United States because such authorities have a history preceding NDAA 2012, the media coverage is also reflective of the fact that the NDAA legislation will have a nontrivial, or possibly major effect on detention in the United States.

I strongly feel that the information you have presented on the history of detention authority should be in this article, but I also think that to write "this authority has not been created by NDAA because it already existed" would be a misrepresentation of the bill we are seeking to describe. No amount of prior history should obscure the text of the bill itself, which is now law and should be documented here (I've placed in the text of 1021 to the left).

I'm trying to think of a phrasing that would be accurate and acceptable to us both and to others here who might comment. Because section 1022 refers to section 1021 (which itself refers to the AUMF before enumerating the authorities the bill affirms), is it unreasonable to include the phrase "(see Section 1021)" in the description? It seems important to me because it refers back to the authorities that are affirmed, and ultimately it seems it would be important to one making your point as well, because it refers back to the AUMF recalled in section 1021. Perhaps the following would work:

"Section 1022 requires that those persons detained pursuant to Section 1021 be held in military custody. That requirement does not extend to American citizens or lawful residents of the United States, whose detention by the Armed Forces is permitted in certain circumstances under existing law (see Section 1021 and AUMF), but not required."

Thanks for your patience. -Darouet (talk) 02:04, 6 March 2012 (UTC)

Also, and perhaps you may know quite a bit about this, to what extent have these powers ever been outlined clearly prior to NDAA 2012? In other words, what is the use of Congress detailing these provisions, and do we know if they change or modify previous powers? Thanks for your help. -Darouet (talk) 02:31, 6 March 2012 (UTC)

Darouet -- I understand where you're coming from on this. A rough approximation of what we're both essentially saying as it relates to U.S. citizens is "the law has not changed, but is on firmer ground" because of 1021. How about the following:

"Section 1022 requires that those persons detained pursuant to Section 1021 be held in military custody. That requirement does not extend to American citizens or lawful residents of the United States, whose detention by the Armed Forces is permitted in certain circumstances under existing law, but not required. The 2001 AUMF has been interpreted by the Supreme Court in light of previous cases to authorize the military detention of U.S. citizens under certain circumstances (see Hamdi v. Rumsfeld, Ex parte Quirin). In affirming the authority to detain covered persons under the 2001 AUMF, Section 1021 provides legislative support to that interpretation, but does not create or grant authority to detain U.S. citizens beyond those under existing law."

Quirin42 (talk) 18:39, 6 March 2012 (UTC)

Though it's a little bit unwieldy, I think it's very good in the sense that it provides sufficient explanation to readers regarding the issues we've been discussing. I'm in favor! Nobody else seems to be commenting, and unless there is some strong opposition, for my part I would say go ahead with it. -Darouet (talk) 19:00, 6 March 2012 (UTC)

I would object to any paragraph that isn't explicitly sourced. I don't necessarily disagree with what you've written, but I can't check to see if it's true because I don't know which sources you're basing it off of. Sorry to be a killjoy, but I want to make sure the article is bulletproof. Ocaasi ^{t | c} 19:14, 6 March 2012 (UTC)

You're not being a killjoy, that's the right attitude. As with all things in life, nothing one produces is worthwhile without a lot of work... and in wikipedia articles that means research.-Darouet (talk) 19:26, 6 March 2012 (UTC)

Great -- So we have made progress. We have a text. I am confident it reflects the truth. Now let's work on verifiability and getting this fully cited. And then we can move on. Thanks Darouet and Ocaasi for the very helpful discussion. Quirin42 (talk) 19:34, 6 March 2012 (UTC)

I don't want to be a killjoy myself, but I'm concerned about putting up a paragraph, purporting to describe Section 1022, which actually describes a certain interpretation of the Section favorable to those who drafted and helped implement it. It might be worth considering placing these qualifications in the "views of the Administration" section, which in any event need to be re-worked.

Part of my concern is this: explicitly stating that the provisions outlined in these Sections only reinforce, but do not create powers is not only highly controversial and contrary to most mainstream and international coverage. It also threatens to blur the distinction between a neutral, encyclopedic article and the statements made about the legislation by influential administration officials who are representatives of the government that has drafted and implemented that legislation.

I think that if this were not the United States but rather Russia, China, Burma or some other power, the Administration's views would be left in the article subheading titled "Views of the Administration." This might be worth thinking about. -Darouet (talk) 18:01, 10 March 2012 (UTC)

Conflict of Interest

I haven't worked on this article in a while, but coming back to it, I am concerned to see a government employee, potentially with a very serious conflict of interest, involving themselves with this article. The proposed text muddles things considerably, and I suspect the aim is to do just that. Renaming "Controversy over Indefinite Detention" to something as uninformative as "Controversy over Detainee Provisions" would serve only to obscure the issue this subsection addresses. I hope that those whose positions disable them from writing in a disinterested manner will refrain from editing the article. I will note as well that the proposed text provides a very narrow legal view, pushed by the previous and current administrations, as to the extent of the President's war powers. The citation of Ex parte Quirin as granting broad-based powers of detention to the President in the "War on Terror" is particularly telling, given the considerable controversy over Bush's invocation of that decision to deny legal process or counsel to detainees at Guantanamo. The views of the administration may be mentioned in the article (and they are already given more space than the dissenting views), but the article should also make clear that most commentary on the NDAA views it as establishing new, potentially unconstitutional authority. -Thucydides411 (talk) 22:48, 10 March 2012 (UTC)

Thucydides -- What exactly about the language proposed to describe Section 1022 would you change? Darouet and I believed we had moved towards consensus. The language we proposed makes clear that the requirement does not apply to American citizens, but that there are still circumstances an American citizen could be held in military custody. We backed that up with Supreme Court cases and a New York Times source. We thought that was a fair reading that addresses the views of both sides in this debate. What exactly would you change below?

"Section 1022 requires that those persons detained pursuant to Section 1021 be held in military custody. That requirement does not extend to American citizens or lawful residents of the United States, whose detention by the Armed Forces is permitted in certain circumstances under existing law, but not required. The 2001 AUMF has been interpreted by the Supreme Court in light of previous cases to authorize the military detention of U.S. citizens under certain circumstances (see Hamdi v. Rumsfeld, Ex parte Quirin)." Quirin42 (talk) 19:23, 5 April 2012 (UTC)

The proposed text takes the opinion that the detention provisions relating to US citizens merely restate current law, and do not establish any new powers. This is not the opinion of many of the sources indicated in the article at present, and as such, is misleading. If you are indeed working in government on national security issues, I find it inappropriate for you to be involved in editing Wikipedia articles pertaining to US national security policy. I cannot see how your position allows you to edit in good faith. -Thucydides411 (talk) 21:28, 5 April 2012 (UTC)

Additional View

I would like to add an additional view under the section explaining arguments that the NDAA does not authorize indefinite detention. It is from a respected expert in a credible source. Objections?

Benjamin Wittes, a Senior Fellow at the Brookings Institution and co-director of the Harvard Law School-Brookings Institution Project on Law and Security, called the criticism of the NDAA's detention provisions "hysterical, paranoid, delusional howls of rage..."

Quirin42 (talk) 19:27, 5 April 2012 (UTC)

I don't see how that contributes to the article, but maybe you disagree. Do you propose to note that the source is the Lawfare blog, and how will you frame the comment? -Thucydides411 (talk) 19:47, 5 April 2012 (UTC)

I have no objection mentioning that he wrote that in a Lawfare post.

Benjamin Wittes, a Senior Fellow at the Brookings Institution and co-director of the Harvard Law School-Brookings Institution Project on Law and Security, wrote in a post on Lawfare that the criticism of the NDAA's detention provisions "hysterical, paranoid, delusional howls of rage..."

Quirin42 (talk) 20:14, 5 April 2012 (UTC)

Wittes is an interesting person to whom one might turn, as he has actually argued, before NDAA 2012, that the law regarding detention and the "war on terror" is not clear, and that the Legislative should take a more active role in defining it. From "Law and the Long War" published in 2009:

"Congress has left the courts to split the difference between polar arguments to which few Americans would actually sign on and others that badly frame the terms of what should be a much broader debate. To cite only one example, one can imagine a world of legitimate policy options to hand the detention of American citizens caught fighting for Al Qaeda. But instead of exploring those options, Congress has left the judiciary to seek the "right answer" by groping its way between a few Civil War-era precedents and a few World War II-era precedents - none of which obviously controls the current situation..."

"For all the pious talk of the "rule of law," there is no clear law here. It only makes sense to decide what function judges should play in this process in the context of more basic decisions about what the process should look like. Put another way, one needs law - law made by Congress - if judicial review is to be anything more refined than simple judicial power."

Wittes writes within the context of his commitment to the concept of the legitimacy of the war on terror. He goes so far as to suggest that "human rights activists" are inadvertently aligning themselves with secessionists from the Confederacy when he cites Lincoln's abrogation of Habeus Corpus, carried out after the secession of one third of the United States.

Writing on the legal framework within which American citizens accused of terrorism should be prosecuted, Wittes writes that:

"Our system has deep ideals. It is not, however, pure - and never has been. Constructing a detention and trial regime for the war on terrorism is a project in mining those impurities. Congress ought not to feel ashamed of this project. Those impurities are our system's nods to unpleasant realities - and we have such realities now."

So while Wittes is committed to some legislative project of defining policy towards detention of American citizens, even he did not think this policy was clear before the passage of the legislation our encyclopedic article attempts to describe. -Darouet (talk) 18:46, 6 April 2012 (UTC)

No mention of Hedges v. Obama

There seems to be no mention of the (as of April 17th, 2012) current Supreme Court Case between journalist Chris Hedges against the controversial sections about detainment within the bill. There is also no mention of the Expatriatation Act, which would strip American citizens of their citizenship which could be used in conjunction with this law. Someone please fix this. — Preceding unsigned comment added by 129.107.37.58 (talk) 19:00, 17 April 2012 (UTC)

It's now mentioned in the intro, hopefully I or someone with a bit of time can enter it into the main body of the article.petrarchan47^Tc 23:30, 16 May 2012 (UTC)

States that have nullified the controversial sections of the NDAA not listed

So far ten states (last time I checked) have nullified the sections of the NDAA pertaining to indefinite detention. Can someone please correct this? — Preceding unsigned comment added by 129.107.73.93 (talk) 19:46, 20 April 2012 (UTC)

Levin's comments

The following is taken from the congressional record of the senate on November 17 2011, S7638-7678. When Levin made comments on applicability to American citizens, he was referring not to section 1031, which concerns powers of indefinite detention, but to section 1032, which concerns the requirement that such detention be by military forces. That seems to be the source of confusion for Mr. Anon515 and others. Please add any other detail as necessary.

Levin's comments on 1032:

"We were unable to agree to the administration’s proposal to strike section 1032, the provision that requires military detention of certain al-Qaida terrorists subject to a national security waiver. We did, however, adopt a number of changes to the provision. In particular, we modified the provision so that it clarifies that the President gets to decide who makes the determinations in coverage, how they are made and when they are made, ensuring that executive branch officials will have flexibility to keep any covered detainee in civilian custody or to transfer any covered detainee for civilian trial at any time.

"Second, we clarify that there is no interruption of ongoing surveillance and intelligence-gathering activities or of ongoing law enforcement interrogation sessions. There have been misstatements, misimpressions, and misinterpretations of the provisions of our bill relative to those issues. We clarify them to make sure it is clearly understood by this body and the American people that—repeating, it is the executive branch, it is determined by the President, the people he appoints who will make determinations of coverage, how they are made, when they are made, so that it ensures the flexibility that the executive branch wants to keep any covered detainee in civilian custody or to transfer any covered detainee for civilian trial at any time.

"It has been suggested that ongoing surveillance and intelligence-gathering activities by law enforcement people would be interrupted, or that their interrogation might be interrupted. It is very explicitly clear in this bill that there is no such interruption, there is no such interrogation session interruption or surveillance interruption or intelligence- gathering activities interruption. The process to make sure that doesn’t happen is in the President’s hands.

"The administration officials reviewed the draft language for this provision the day before our markup and recommended additional changes. We were able to accommodate those recommendations, except for the administration request that the provision apply only to detainees who are captured overseas. There is a good reason for that. But even here, the difference is relatively modest, because the provision already excludes all U.S. citizens. It also excludes all lawful residents of the United States, except to the extent permitted by the Constitution. The only covered persons left are those who are illegally in this country or who arrive as tourists or on some other shortterm basis, and that is a small remaining category, but an important one, because it includes the terrorists who clandestinely arrive in the United States with the objective of attacking military or other targets here. Contrary to some statements I have seen in the press, the detainee provisions in our bill do not include new authority for the permanent detention of suspected terrorists. Rather, the bill uses language provided by the administration to codify existing authority that was adopted by both the Bush administration and the Obama administration and that has been upheld in the Federal courts. Moreover, the bill requires for the first time that any detainee who will be held in long-term military custody anywhere in the world would have access to a process that includes a military judge and a military lawyer."

This shouldn't be a surprise to anyone. I think we mention now in this article, or previous versions of the article mentioned, that the Obama Administration requested the removal of a requirement for military custody of American citizens, and threatened to veto on that basis. The Administration issued a statement on the issue that I believe we link here.

Later that day, Levin's comments to M. Udall concerning section 1031:

"I do appreciate the Senator’s response. I have one other question, and that has to do with an American citizen who is captured in the United States and the application of the custody pending a Presidential waiver to such a person. I wonder whether the Senator is familiar with the fact that the language which precluded the application of section 1031 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 U.S. 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 which we had in the bill which passed the committee, and that we removed it at the request of the administration that this determination would not apply to U.S. citizens and lawful residents? Is the Senator familiar with the fact that it was the administration which asked us to remove the very language, the absence of which is now objected to by the Senator from Illinois?"

-Darouet (talk) 12:59, 5 June 2012 (UTC)

P.S. Levin didn't "later clarify his comments." The comments quoted concerning section 1031 were made after the comments concerning section 1032. -Darouet (talk) 13:02, 5 June 2012 (UTC)

Thank you for clarifying this. I did not have the time to view the entire section. However, could you find the context for the statement "New bill modifies detainee provisions -- modified 1031 as requested by administration to assure that provision which provides statutory basis for detention of individuals captured in the course of hostilities conducted pursuant to the 2002 AUMF -- to make sure that provisions and statutory basis is consistent with the existing authority upheld by courts and neither limits nor expands the scope of activities authorized by the AUMF" that is made in the transcript? Furthermore, I believe the version of the bill that Levin was talking about in the above statement was an outdated one; that was before clause saying "nothing in this section shall change existing laws of authorities..." was added. Am I correct? Mr. Anon515 01:56, 6 June 2012 (UTC)

Levin states, prior to the previous passages we were discussing, "Second, the new bill would modify the detainee provisions to address concerns and misconceptions about the provisions in our initial bill. In particular, the new bill first modifies section 1031 of the bill, as requested by the administration, to assure that the provision that provides a statutory basis for the detention of individuals captured in the course of hostilities conducted pursuant to the 2001 authorization for use of military force, the AUMF, to make sure that those provisions and that statutory basis are consistent with the existing authority that has been upheld in the courts and neither limits nor expands the scope of the activities authorized by the AUMF." He's beginning the process of describing requested modifications to the bill, and actions by the Armed Services Committee to address those requests.

For your own records, these discussions took place two weeks before the press began to write about this legislation, and before the wikipedia article was first drafted. You can see three early articles which address the bill as it existed after Levin's modifications: [4], [5], [6]. -Darouet (talk) 10:06, 6 June 2012 (UTC)

Mr., would you mind if I removed that latest passage you included from c-span? The second paragraph of the article section on 1021 already addresses this specific issue: "Addressing previous conflict with the Obama Administration regarding the wording of the Senate text, the Senate-House compromise text, in sub-section 1021(d), also affirms that nothing in the Act "is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force". The final version of the bill also provides, in sub-section(e), that "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." As reflected in Senate debate over the bill, there is a great deal of controversy over the status of existing law."

I'm afraid that the c-span stuff is just a re-capitulation of this, but with even more complicated wording (not your fault - it's c-span). -Darouet (talk) 10:15, 6 June 2012 (UTC)

If you feel it is redundant, I don't mind. Mr. Anon515 01:32, 7 June 2012 (UTC)

Missing information about vote for renewal for following year

Somewhere this should mention the vote that was made to renew it for the following year, including the date of the vote, with reference to sources of the voting record. — Preceding unsigned comment added by 72.234.110.47 (talk) 02:55, 24 July 2012 (UTC)

Yet you fail to give a citation, which then disparages your assertion.Wzrd1 (talk) 06:18, 8 August 2012 (UTC)

I don't know if the "assertion" is "disparaged," but it'd be helpful if you provided some links to news sources so that we might act upon your suggestion. -Darouet (talk) 09:15, 8 August 2012 (UTC)

1021 summary language: please discuss here first

I reverted this edit, since it seemed to add in some critical interpretation that has been discussed here in the past. Can other editors please review it and determine whether it is a fair reflection of consensus for how the article should handle section 1021. Thanks, Ocaasi ^{t | c} 15:55, 17 August 2012 (UTC)

Cities should be changed to municipalities, updated

The title "Cities calling for ban on indefinite detention" should be changed to "Municipalities calling for ban on indefinite detention" to include larger governments, such as counties, which are doing so.

These include Oakland County, Michigan, and many others listed here: http://tracking.tenthamendmentcenter.com/

Pandaunite (talk) 06:20, 24 January 2013 (UTC)pandaunite

Thanks Panda, will make the change. petrarchan47tc 23:27, 24 January 2013 (UTC)