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Obama’s NDAA Signing Statement: I have the power to detain Americans… but I won’t

 

Office of the Press Secretary

FOR IMMEDIATE RELEASE

December 31, 2011

NOTE: First, it should be remembered that the Obama White House pressured Congress to add the controversial language to the bill, according to Sen. Carl Levin. Second, Signing Statements are not law, and are not a Constitutional power granted to the executive branch; any reassuring (or troubling) language within has no binding status– though it may shed light on the character of the chief executive and does signal a dangerous trend in de facto rule by “executive fiat”– and does not indicate any deviation of intent from the law as written. From Wikipedia: the Constitution does not authorize the President to use signing statements to circumvent any validly enacted Congressional Laws, nor does it authorize him to declare he will disobey such laws (or parts thereof). When a bill is presented to the President, the Constitution (Art. II) allows him only three choices: do nothing, sign the bill, or (if he disapproves of the bill) veto it in its entirety

Statement by the President on H.R. 1540

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

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

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

Section 1021 affirms the executive branch’s authority to detain persons covered by the 2001 Authorization for Use of Military Force (AUMF) (Public Law 107-40; 50 U.S.C. 1541 note). This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then. Two critical limitations in section 1021 confirm that it solely codifies established authorities. First, under section 1021(d), the bill does not “limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.” Second, under section 1021(e), the bill may not be construed to affect any “existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” My Administration strongly supported the inclusion of these limitations in order to make clear beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF. Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.

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

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

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

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

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

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

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

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

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

Ron Paul Calls National Defense Authorization Act “Slip Into Tyranny”

Written by Joe Wolverton, II   
Friday, 30 December 2011 10:48

 

A dictator enjoys unrestrained power over the people. The legislative and judicial branches voluntarily cede this power or it’s taken by force. Most of the time, it’s given up easily, out of fear in time of war and civil disturbances, and with support from the people, although the dictator will also accumulate more power with the use of force.” Those prescient words of Republican presidential candidate Congressman Ron Paul (R-Texas) are taken from his book Liberty Defined: 50 Essential Issues That Affect Our Freedom. The tyrannical assumption of power by the President and the cession of unheralded power to him by the Congress has taken place precisely as Dr. Paul warned.

The National Defense Authorization Act (NDAA) is an unprecedented, unconstitutional, and unchecked grant of dictatorial power to the President in the name of protecting the security of “the homeland.” Ron Paul described the bill (soon to be signed into law by the President) as a “slip into tyranny,” one that will almost certainly accelerate “our descent into totalitarianism.”
What of the NDAA? Are there indeed provisions contained therein that so ferociously tear at the constitutional fabric of our Republic?
In a word — yes.
This liberty-extinguishing legislation converts America into a war zone and turns Americans into potential suspected terrorists, complete with the full roster of rights typically afforded to terrorists — none.
A key component of this reconciled bill mandates a frightening grant of immense and unconstitutional power to the executive branch. Under the provisions of Section 1021, the President is afforded the absolute power to arrest and detain citizens of the United States without their being informed of any criminal charges, without a trial on the merits of those charges, and without a scintilla of the due process safeguards protected by the Constitution of the United States.
Further, in order to execute the provisions of Section 1021 described in the previous paragraph, subsequent clauses (Section 1022, for example) unlawfully give the President the absolute and unquestionable authority to deploy the armed forces of the United States to apprehend and to indefinitely detain those suspected of threatening the security of the “homeland.” In the language of this legislation, these people are called “covered persons.”
The universe of potential “covered persons” includes every citizen of the United States of America. Any American could one day find himself or herself branded a “belligerent” and thus subject to the complete confiscation of his or her constitutional civil liberties and nearly never-ending incarceration in a military prison.
In his assessment of the danger inherent in such acts, Paul is in good company. This suspension of habeas corpus, a right central to Anglo-American freedom from despotism for over 500 years, was described by Alexander Hamilton as one of “the favorite and most formidable instruments of tyranny.”
Congressman Paul eloquently expressed his assessment of such an assault on liberty:
The president’s widely expanded view of his own authority to detain Americans indefinitely even on American soil is for the first time in this legislation codified in law. That should chill all of us to our cores.
As reported by The Hill, in a phone message to supporters, Paul cited the Founders and their intent to bequeath to their descendants a government fettered in such a way as to threaten as little as possible man’s innate freedom:
The founders wanted to set a high bar for the government to overcome in order to deprive an individual of life or liberty. To lower that bar is to endanger everyone. When the bar is low enough to include political enemies, our descent into totalitarianism is virtually assured. The Patriot Act, as bad as its violation against the Fourth Amendment was, was just one step down the slippery slope. The recently passed National Defense Authorization Act continues that slip into tyranny, and in fact, accelerates it significantly.
Adding insult to injury, Congress has stuffed the bill full of funding for illegal and unconstitutional foreign wars so that the American people will pay over $670 billion dollars for the privilege of being deprived of their God-given rights and for the building of the American empire.
This appalling story doesn’t end there, however. The NDAA’s rap sheet of crimes against the Constitution is long. As Congressman Paul explained:
The Fifth Amendment is about much more than the right to remain silent in the face of government questioning. It contains very basic and very critical stipulations about the due process of law. The government cannot imprison a person for no reason and with no evidence presented and without access to legal counsel. The danger of the NDAA is its alarmingly vague, undefined criteria for who can be indefinitely detained by the U.S. government without trial.
While all the foregoing is harrowing and enough to make any reasonable man fear for the future of this Republic, there is another aspect of the law that is perhaps more frightening still. That is the vagueness of the terms. Terms so ill-defined are ripe for the wresting and within the penumbras of these provisions could be found lurking the tools of tyranny. Wrenches that could force anyone into a predetermined “terrorist” hole.
Ron Paul sets forth the source of such chilling concern as contained in the NDAA:
It is no longer limited to members of al Qaeda or the Taliban, but anyone accused of substantially supporting such groups or associated forces. How closely associated, and what constitutes substantial support? What if it was discovered that someone who committed a terrorist act was once involved with a charity? Or suppose a political candidate? Are all donors of that candidate or supporters of that candidate now suspects and subject to indefinite detainment? Is that charity now an associated force?
Despite the bipartisan and bicameral support for the defense budget bill, President Obama originally vowed to veto the measure over his disagreement with the delegation of power over the cases of detainees.
He has since withdrawn his objection and has signaled his intent to sign the bill into law.
The crux of the White House’s opposition to the NDAA was President Obama’s desire that the Federal Bureau of Investigation (FBI) should have plenary power over the disposition of issues related to the custody and prosecution of all terror suspects detained domestically.
The Obama administration insisted that cutting out the FBI would reduce the overall effectiveness of investigations, as well as hamstring the efforts of intelligence officers from gathering reliable intelligence from those believed to be fighting against the United States in Afghanistan or Iraq.
Specifically, the White House promised to veto the legislation if it “challenges or constrains the President’s critical authorities to collect intelligence, incapacitate dangerous terrorists, [or] protect the nation.”
Such swords disguised as shields are reminiscent of the words of James Madison. The Father of the Constitution warned, “The means of defense against foreign danger historically have become instruments of tyranny at home.”
Again, Ron Paul finds himself in the company of the Founders. In his closing remarks, Congressman Paul cited very succinctly the indictment that should be handed down by the American people against the NDAA:
The Bill of Rights has no exceptions for really bad people or terrorists or even non-citizens. It is a key check on government power against any person. That is not a weakness in our legal system; it is the very strength of our legal system. The NDAA attempts to justify abridging the Bill of Rights on the theory that rights are suspended in a time of war, and the entire United States is a battlefield in the war on terror. This is a very dangerous development, indeed. Beware.

Military to Designate Americans as Enemy During Collapse: DOD Contact Joe Joseph Reports

FEMA Continuity of Government Plans Prep Total Takeover of Society, Dispatching Military Domestically Under Economic Collapse Emergency.

 

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