Anyone still care about the NDAA stuff?
Because the best possible amendment so far (banning military detention for those captured on US soil) was rejected on a party line vote. In it's place is a weak ass amendment designed to do exactly the same thing as last year but looking like it cares about civil liberties instead of just looking tough on terrorists. If anything this amendment, supposedly addressing liberty concerns, creates
two new legal problems; ambiguity around the status of illegal immigrant's habeas rights and an apparent 30 day period of detention where prisoners may be denied access to court and council.
At the same time it seems a new
mandatory military detention provision has been passed. This was in the 2012 NDAA but removed after Obama's veto threat. I'd recommend reading the statement made alongside the amendment in that post just to get the blood boiling.
And yeah, the House passed the bill (including that amendment) last night. So it's probably a Senate fight and Obama veto threat to look forwards to.
In other NDAA news, a federal judge has suspended one of the detention provisions of the 2012 NDAA (the one every was worked up over) in an absurd looking case;
Hedges v. Obama.
The case hinged on two points; did the people bringing it have standing to challenge the law (eg, reasonable belief that it could be used against them) and that the NDAA has power beyond the AUMF which it explicitly affirms.
On the second point, the judge ignored both the law's statement that it doesn't change such powers and didn't even address the caselaw on this point, simply stating that she had to view every statute as having individual and unique power. Which is a little odd, but OK. She had one of the cheekiest lines of reasoning that made me forgive this entirely; if the NDAA provision in question has no power beyond that of the AUMF the provision being enjoined won't make any difference and so it doesn't matter. That is, if your defence of a law's negative effects are that the law has
no effects does it really matter if your defence fails?
On the first point, the government acted really weird. Despite stating in their briefs and in all law and policy that the people suing have no chance of being detained under the AUMF/NDAA,
the lawyer refused to explicitly state this in court, essentially saying they didn't answer hypothetical questions. The government offered no additional defences. So it's hard to tell if they really cared.
All in all, weird case. I kinda agree with the judge that if the provision is bunk (which it is) it doesn't matter if it's struck down or not. But I wouldn't be surprised if this feeds back into the current NDAA 2013 debate.