Al-Muhajabah's Jottings

The detention authority in the NDAA does not apply to anyone captured or arrested in the U.S. or to any American citizens or lawful residents

The following are the key sections of the NDAA. I have added emphasis.

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:

(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:

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.

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.

(f) Requirement for Briefings of Congress- The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be `covered persons' for purposes of subsection (b)(2).

SEC. 1022. MILITARY CUSTODY FOR FOREIGN AL-QAEDA TERRORISTS.

(a) Custody Pending Disposition Under Law of War-

(b) Applicability to United States Citizens and Lawful Resident Aliens-

The requirement to detain a person in military custody under this section does not extend to citizens of the United States.

The 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, except to the extent permitted by the Constitution of the United States.

(c) Implementation Procedures-

(d) 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.

(e) Effective Date- This section shall take effect on the date that is 60 days after the date of the enactment of this Act, and shall apply with respect to persons described in subsection (a)(2) who are taken into the custody or brought under the control of the United States on or after that effective date.

The AUMF in question is the one governing the war in Afghanistan, and allows the military to take prisoners of war there, which is consistent with the laws of war. As shown by the bolded text, it specifically exempts not only U.S. citizens, but anybody who is captured or arrested in the U.S.

You can read a statement from the lead negotiator for the House Democrats, the statement from the White House, or this article.

* If the link has expired, go to thomas.loc.gov and search on H.R. 1540.

Note: This post was updated on December 31, 2011, to reflect the final text of the law as signed by President Obama.

In his signing statement, President Obama says the following (emphasis added):

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.

Just in case the law itself is not clear enough.

Did the Obama Administration "go against the science" on #PlanB? No, they didn't.

There are a lot of hyperbolic claims* going around on the left about the decision by Secretary for Health and Human Services Kathleen Sebelius to overrule the Food and Drug Administration about allowing the Plan B pill (the "morning after" pill) to be sold over-the-counter to minors. A number of people are claiming that the Obama Administration is going against the science. This is not true.

Here is Secretary's Sebelius's statement on her decision:

In February 2011, Teva Women’s Health Inc. submitted to the FDA a supplemental new drug application for Plan B One-Step. This application sought to make Plan B One-Step available over the counter for all girls of reproductive age. The science has confirmed the drug to be safe and effective with appropriate use. However, the switch from prescription to over the counter for this product requires that we have enough evidence to show that those who use this medicine can understand the label and use the product appropriately. I do not believe that Teva’s application met that standard. The label comprehension and actual use studies did not contain data for all ages for which this product would be available for use.

Emphasis added. Similarly, in explaining why he supports the decision, President Obama said:

So the expectation here is -- I think it's very important to understand that, for women, for those over 17, this continues to be something that you can go in and purchase from a drugstore. It has been deemed safe by the FDA. Nobody is challenging that. When it comes to 12-year-olds or 13-year-olds, the question is can we have confidence that they would potentially use Plan B properly. And her judgment was that there was not enough evidence ... this potentially could be used improperly in a way that had adverse health effects on those young people.

Emphasis added. What both Secretary Sebelius and President Obama are saying is that although Plan B is safe when used as directed, it is not proven that 11 or 12 year old girls have the judgment to use Plan B as directed without some form of adult supervision. For most folks, it's just common sense that children of that age don't have fully developed adult judgment yet. That's why we have many laws restricting certain things to people over the age of 18.

And look what else Secretary Sebelius said. Her decision was based on inadequate use studies. If you can prove, scientifically, that girls as young as 11 do in fact have the judgment to use Plan B safely without adult direction, then send in that study. That would allow Plan B to be sold OTC to minors. Not only is HHS not "going against the science" but they actually want a more rigorous scientific process to be used.

* To clear up a common misunderstanding, there has been no change in the availability of Plan B. Women aged 17 and above can continue to purchase it OTC. No new restrictions have been added to minors, who were always required to see a doctor.

If this is populism, I want no part of it

Over the last couple of years, I've noticed a pattern among some on the left. They:

Wanted to kill healthcare reform because it didn't "punish" insurance companies enough... even though it provides coverage to 32 million lower income Americans
Rejected financial reform because it didn't break up the banks... even though it created the first ever federal agency to solely look out for middle and working class consumers
Opposed the December 2010 "tax deal" because it continued Bush tax cuts for the rich... even though it extended critical safety net programs for the poor

It's one thing to be against the undue power of corporations or the rich, it's something else entirely to be willing to screw over the poor (by opposing bills that would help them) because you don't feel they "punish" corporations or the rich enough.

To me, a true liberal is one who looks out for the interests of those less well-off, and does whatever they can to extend protections and help to these groups. By this measure, President Obama is a true liberal. Those whose actions show they don't care about the poor and would abandon them are merely populists and to me do not express the true spirit of liberalism.

Some say the President needs to be more populist, but if this is the left's populism, he's better off without it.

ETA 10/11: Can we add to this people who are more concerned with "punishing" Wall Street through the Occupy Wall Street protests than about helping the unemployed through the American Jobs Act? I think we can.

Tags democrats politics realitycheck
September, 29, 2011
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Why #OccupyWallStreet supporters should be telling Congress "pass this jobs bill now"

Warren Buffett has famously said that his secretary pays a higher tax rate than he does. How is this possible? It isn't because of the Bush tax cuts - in fact it doesn't have anything to do with income tax at all. Rather, Buffett and others like him who primarily make their money through investments pay most of their taxes as capital gains. And the tax rate for capital gains is just 15% in most cases! If you really want to address tax avoidance by the extremely wealthy, pay less attention to the Bush tax cuts and more to capital gains tax. The Christian Science Monitor has a good article about this.

And did you know that President Obama's plan to pay for the American Jobs Act starts addressing this issue? Check out page 48 of his submission to the Joint Committee of Congress that is responsible for reducing the deficit:

Tax carried (profits) interests as ordinary income. A partnership does not pay income tax; instead, the income or loss and associated character flows through to the partners who must include such items on their individual income tax returns. Certain partners receive a partnership interest, typically an interest in future profits, in exchange for services (commonly referred to as a “carried interest”). Current law taxes the recipient of a carried interest on the value at the time granted, which may be based on the value the partner would receive if the partnership were liquidated immediately (for example, the value of an interest only in future profits would be zero). Because the partners, including partners who provide services, reflect their share of partnership items on their tax return in accordance with the character of the income at the partnership level, long-term capital gains and qualifying dividends attributable to carried interests may be taxed at a maximum 15-percent rate (the maximum tax rate on capital gains) rather than at ordinary income tax rates.

The President is proposing to designate a carried interest in an investment partnership as an “investment services partnership interest” (ISPI) and to tax a partner’s share of income from an ISPI that is not attributable to invested capital as ordinary income, regardless of the character of the income at the partnership level. In addition, the partner would be required to pay self-employment taxes on such income, and the gain recognized on the sale of an ISPI that is not attributable to invested capital would generally be taxed as ordinary income, not as capital gain. However, any allocation of income or gain attributable to invested capital on the part of the partner would be taxed as ordinary income or capital gain based on its character to the partnership and any gain realized on a sale of the interest attributable to such partner’s invested capital would be treated as capital gain or ordinary income as provided under current law. This would reduce the deficit by $13 billion over 10 years.

This may be a bit challenging to understand, but what the President is proposing here is that for certain types of investment partnerships (a hedge fund might qualify under this), the interest they earn on their investments should be taxed as income rather than capital gains.

Let me put that more clearly. This proposal is an attempt to make some Wall Street investment firms pay a much higher tax rate on some of the money they make than they are doing currently.

Do you want to tax the rich more? Do you want to do something to curb obscene Wall Street profits? Tell Congress to pass the American Jobs Act now!

Tags american jobs act taxation wall street
September, 26, 2011
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The real "job creators": difference between Dems & GOP is clear

Everyone here knows that small businesses are where most new jobs begin. And you know that while corporate profits have come roaring back, smaller companies haven’t. So for everyone who speaks so passionately about making life easier for “job creators,” this plan is for you.

via whitehouse.gov

President Obama delivered this passage from his address to Congress while looking straight at Republican senators and reps. They justify their tax cuts for the rich as helping "job creators". Obama turned that right back around on them by proposing tax incentives that benefit only small businesses and middle class and the working poor.

The difference between the parties and their policies is pretty clear here.

And another twist:

Turning job-seekers into job-creators: Through innovative use of Federal unemployment insurance funds, all 50 states will have the flexibility to support long-term unemployed workers who create their own jobs by starting their own companies. A few states already have these self-employment assistance (SEA) programs, many of which have been remarkably successful. For example, SEA allowed two unemployed software developers to co-found a new mobile advertising company in 2009 – and today that company has raised $6.5 million in venture capital, employs 28 workers, and plans to hire many more.

Once upon a time, the Republican party supported entrepreneurship. That they're opposing the American Jobs Act and the measures within it shows just how far they've gone in their ideology.

Tags economy jobs bill obama republicans
September, 9, 2011
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Congress reaches new depths of stupidity on Libya (a rant)

The Act requires the president to notify Congress within 48 hours of introducing the U.S. into imminent or ongoing "hostilities". It also requires him to end operations within 60 to 90 days unless Congress gives him the authority to continue, or extends the deadline. In the Libya case, the 90-day period will end Sunday.
Until now, every president, beginning with Nixon himself, has argued that the Act is unconstitutional because it infringes on the president’s authority as "Commander-in-Chief". At the same time, however, they have been careful to comply with the Act’s notice requirement - as Obama did two days after deploying U.S. forces over Libya.

At other times, presidents either received authorisation to take military action, as George W. Bush did in 2002 before invading Iraq several months later, or construed the appropriation of money by Congress for purposes of conducting operations as an implicit authorisation, as Bill Clinton did in the case of the 1999 Kosovo War.

When specific authorisation was not forthcoming - as when Ronald Reagan sent military advisers to El Salvador in 1982, when U.S. naval vessels provided served as escorts for Kuwaiti oil tankers during the Iran-Iraq War, or, most recently, during the Kosovo War against Serbia - lawmakers sued the government to enforce the Act’s terms.

In each case, however, the courts ducked the issue on procedural, rather than constitutional grounds, which is likely to be the fate of a new lawsuit filed this week by a bipartisan group of ten congressmen - led by Democrat Dennis Kucinich and Republican Walter Jones - asking the courts to force Obama to withdraw U.S. military forces from the Libyan operation because he did not comply with the Act.

via ipsnews.net

The above quote shows clearly that President Obama is doing the same thing that every president for the last 40 years has done. He followed the requirement of the War Powers Act to notify Congress within 48 hours. He has been waiting for Congress to authorize continuation. Despite having nearly THREE MONTHS to vote on the matter, they have failed to do so. It's not up to him to force them to vote, it's up to them to do their fucking jobs. Especially if they really are that outraged, you would think they could find time to hold the vote. That they can fail to hold the vote and then attack POTUS is ridiculous and disgusting.

They need to just hold the damn vote. If they want the mission in Libya to continue, they should vote to continue authorization. If they want the U.S. to end its role, they should vote to deny authorization. Why the hell are some members of Congress (including some moronic Democrats like Dennis Kucinich) filing suit instead of doing the obvious thing and holding a vote? Why is no one pointing out how absurd and ludicrous this is?

What's even more stupid is that the entire linked article fails to even once discuss the law as it applies to U.N. resolutions and this is a case where the U.S. is providing support to military operations ordered and authorized by the U.N. Many have argued convincingly[1] that Congress does not need to provide authorization through the War Powers Act in such a case. Whether or not one accepts this argument, Congress appears to be trying to wreck a U.N. authorized military operation because they can't get their act together! Many Republicans hate the U.N. so maybe they want to do this, but why are Democrats going along and promoting false GOP narratives? Talk about an epic failure.

And there's still more stupidity. The whole discussion about Libya makes it sound like the U.S.A.F. is out there bombing Libya by itself with no authorization. In fact, the U.S. got out of bombing and handed command to NATO over two months ago! This is the point the White House is trying to make, that the U.S. isn't even actively involved in combat (the linked article critiques this claim but I don't find their view entirely convincing[2]). But people on both the right and the left are trying to depict this as "Obama's illegal war" for some bizarre reason, reality be damned.

Because of the U.N. resolution, and because the U.S. isn't actually engaged in combat, I don't feel that Congress needs to authorize it further. But since many members of Congress clearly do feel this - then HOLD THE DAMN VOTE!!

Also, liberals, please stop bleating "I agree that Obama should have gone to Congress". He did. Congress failed to do their part by voting. Why are we letting the GOP entangle POTUS in this web of deceit and stupidity and not defending him and pointing out reality?

[1] http://jenkinsear.com/2011/03/19/a-legal-war-the-united-nations-participation...

[2] For a good legal defense of this interpretation of "hostilities", see http://roadkillrefugee.posterous.com/obamas-decision-on-war-powers-and-libya-...

The long & dark history of asking African Americans to prove their right to be where they are

As [Davis] arrived at the first cluster of houses... a white man suddenly appeared in the road ahead.

"Nigger, have you got any money?" he shouted.

The man was Robert N. Franklin, one of the town's appointed constables and a keeper of a dry goods store perched at the top of the muddy dirt street that led through Goodwater's commercial district.

...

The question [Franklin] belligerently posed was a simple but perilous provocation. However Davis answered was fraught with jeopardy. Under the new racial statutes and conventions of the South, demanding whether an itinerant black man had money was tantamount to asking him to prove his right to freedom, or even his right to live. A black man traveling alone in Alabama could be arrested and charged with vagrancy on almost any pretense. To have no money in hand demonstrated his guilt without question and, worse, was seen as absolute proof of his worthlessness. Almost every possible consequence of admitting indigence or joblessness - much less of having ridden for free on a freight train - was terrible.

Yet given the vulnerability of every black man among whites - even more so a white with some measure of community authority and respect - to reveal that he possessed cash exposed him to more grave risk. Vulgar whites like Franklin could harm a black man with impunity, against which he had no recourse. (p. 124)

This passage is taken from Slavery by Another Name, a book I recently finished reading. John Davis, the African-American man described above, was arrested, found guilty (the specific charge isn't recorded and may never have been formally agreed), and leased to a white plantation owner for a year of hard labor. The book describes in harrowing detail how this system of neo-slavery was built and maintained in the post-Civil War South, and only ended during World War Two.

Reading Why Obama shouldn't have had to 'show his papers' and Walking Out of the Bubble, reminded me of Slavery by Another Name. The book, Goldie Taylor's story, and Right To Ride, the book referenced by blog.totalcinema.com all describe different aspects of the same thing. This is the reality of Jim Crow, this is the legacy of racism and white supremacy in the United States. If you don't know this history, you need to learn it, because it's only this way that you can understand exactly how profoundly wrong it was that our country could not stand up and say "No" when Donald Trump made our duly elected President show his papers.

Obama wants to reduce deficit by cutting defense spending & increasing taxes on rich

Obama would end tax breaks for households earning more than $250,000 a year, trim Pentagon spending, lift a cap on the amount of income that is assessed for Social Security, and save on Medicare and Medicaid through alterations to healthcare delivery, administration officials said.

via latimes.com

And yet some on the left continue to claim POTUS "is not a progressive". I do not think that word means what you think it means.

Now is not the hour to tell the Egyptian people what to do or what solution to accept.

We all have a lot to learn from these heroes of our time, the multi-generational, ecumenical, multi-cultural participants in the civil resistance of Egypt.

Now is not the hour to tell them what they must do or what solution they can or cannot accept.

Now is the hour to listen, look, learn from and study their moves, and apply them to our own lands and struggles.

In the end, the round table named Tahrir, or Liberation, is not a video game. And we, looking in from the outside, are not the players. It is a moment of history that belongs to the Egyptian civil resistance and to them only, one that we all can and should embrace and emulate. But let’s not get confused: They are the protagonists of history, and the rest of us are, at best, merely their students.

via narcosphere.narconews.com

We all have our own ideas and concerns but now is the time to support the Egyptian people in what THEY want. Because that's what democracy really means. They decide, not us.

So if you're raining on their parade or saying they shouldn't be celebrating because of whatever reason, STFU.

The whole post (written yesterday before today's events were known) is worth reading.

Why did everybody think Mubarak was going to resign today? A timeline of misleading info:

I've been seeing some people saying that the media made up the "Mubarak to resign" hype themselves. This is incorrect. They may well have interpreted things too loosely, but throughout the day today there was a series of statements and leaks from senior Egyptian officials, by name. I've linked and copied these below.

The first event of the day was a communique from the Supreme Council of the Armed Forces of Egypt regarding the situation and talking about "safeguarding the interests of the people". In retrospect, this communique did not actually say very much, but there was a lot of leaking about its meaning:

According to the senior army officer who preferred anonymity, the Supreme Council is about to announce, in statement #2, that it has taken over authority in the country, for an interim period, the duration of which is to be determined later.

Next the National Democratic Party, of which Mubarak is the head, got into the act:

BBC: Egyptian President Hosni Mubarak to 'respond to people's demands' by Friday, secretary general of his NDP party tells BBC

The head of the Egyptian Army addressed protesters:

ABC: Egyptian Army Chief Tells Protesters: 'All Your Demands will be Met' http://abcn.ws/hCyzRh

The Egyptian Prime Minister started talking:

BBC: Egyptian Prime Minister tells the BBC that President #Mubarak may be 'stepping down' as crowds gather in Tahrir Square awaiting news

The NDP came back into it:

BBC: Secretary General of ruling NDP party,Hossam Badrawi, tells BBC has just told President #Mubarak in person that he should 'step aside'

And there were other leaks and claims floating around:

NBC: Two sources inside Egypt president's office say that Mubarak will step down tonight , VP Omar Suleiman will take over as leader - NBC

While some of these sources are anonymous, others are not. It seems pretty clear there was an information campaign (or a disinformation campaign) by a significant part of the Egyptian establishment to make it seem like Mubarak was going to resign. That's why everybody (including you, no doubt!) thought this was what was happening.