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Obama yet again drops veto threat; signs 2013 NDAA

While you were wondering whether the nation would topple over the ‘fiscal cliff,’ you might have missed this bit of déjà vu.

For the second year in a row, President Obama threatened to veto the National Defense Authorization Act, and chose instead to sign it into law. And for the second year in a row, he issued a signing statement resembling notes for a class on Constitutional law.

A dozen provisions of the NDAA of 2012 attracted presidential wrath, generally for violating separation of powers. The signing statement President Obama issued on January 2, 2013 cited “constitutional concerns” or other problems with 23 provisions of the NDAA of 2013, but its tone was decidedly muted.

While Obama in his signing statement a year ago promised to “aggressively seek to mitigate those concerns,” to “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,” the re-elected President makes no promises beyond saying he will implement the provisions he doesn’t like in a manner “that avoids the constitutional conflict.”

The fact that he backed away from his veto threat after saying he would not sign into law any measure that tied his hands on Guantanamo and the transfer of detainees should not be surprising. This is a President who has only twice vetoed legislation: at the end of 2009 he nixed an appropriations bill on the grounds that it was unnecessary, and the following year he turned away the Interstate Recognition of Notarizations Act, which hardly possessed the stature of the nearly 700-page NDAA.

The 2013 NDAA is not all bad. For instance, sections 533 and 534 mandate reports and reforms relating to rape, sexual assault and sexual misconduct in the military. Section 1223 calls on the Secretary of Defense and Secretary of State to compile a joint report on “efforts to promote security of Afghan women and girls during the security transition process.”

Pets also get a shout out. Section 1106 provides for funds for the transport of family pets for federal employees during evacuation operations.

But the really good stuff – such as the Kucinich Amendment which would stop the Joint Special Operations Command from conducting ‘signature’ drone strikes – never made it to the final version, which was passed by the House on December 20th by a 315-107 margin and by the Senate the following day by a vote of 81-14.

The NDAA of 2013 was opposed by the entire Massachusetts Congressional delegation with the exception of Reps. Tsongas and Keating who voted for it, and Senator Brown, who didn’t cast a vote.

Dropping his scruples, President Obama signed into law a bill that bans the appropriation of funds to transfer Guantanamo detainees to the United States even for trial or to modify facilities in the US to house Guantanamo detainees. It continues to hamstring efforts to send them to third countries, and puts new constraints on the ability to transfer detainees still being held by US forces in the Parwan Detention Facility (Bagram) to Afghan officials.

And it gets down in the weeds where former detainees are concerned: for instance, one section prohibits former Guantanamo detainees who were repatriated to Micronesia, the Marshall Islands or Palau “from being afforded the rights and benefits set forth in the Compact of Free Association.”

How about the NDAA of 2012’s indefinite detention provisions which have been opposed by municipalities and some state legislatures?

Before the final vote on the NDAA, Congress had dropped the Feinstein Amendment that stated that American citizens and legal permanent residents could not be held in indefinite detention by the military without charge or trial. The ACLU had opposed the Feinstein Amendment, arguing that it did more harm than good.

One section purports to be a fix for NDAA 2012’s indefinite detention provisions, but may seed further confusion by adding still more ambiguous language to the mix:


Nothing in the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) or the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112-81) shall be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights in a court ordained or established by or under Article III of the Constitution to any person inside the United States who would be entitled to the availability of such writ or to such rights in the absence of such laws.

Does this section bar Americans and others within the United States from being held indefinitely and deprived of their Constitutional rights? Senator Lindsey Graham, for one, doesn’t think so. In the final debate on the NDAA he expounded on the need to extract intelligence from people within the United States who were thought to be acting in coordination with terrorist groups and went on to state:

“I not only am going to vote for this bill, I am going to celebrate the fact we have done nothing to stop the right to trial. As Senator Levin said, there is not one thing in this bill that restricts a person’s right to a trial. What we do have in this bill is the recognition we are at war and we retain as an option that has not been used—there is no American citizen in detention—but there may be a need for that one day and we retain that right under this bill.”

The final version of the bill also includes the ‘propaganda’ provision. Section 1078 amends previous legislation prohibiting funds for the State Department and Broadcasting Board of Governors from being used “to influence public opinion in the United States.” Now the Secretary of State and the Broadcasting Board of Governors can “make available in the United States motion pictures, films, video, audio, and other materials prepared for dissemination abroad.”

This new effort to massage public opinion will not kick in for 180 days following the enactment of the legislation.

The Department of Defense has not been given a green light to engage in home front propaganda. It is, however, encouraged to build up its ‘homeland’-focused Northern Command on the grounds that it “plays a crucial role in providing additional capability to state and local governments in domestic disaster relief and consequent management operations.”

The NDAA of 2013 calls on the Northern Command “to build upon its current efforts to develop command strategies, leadership training, and response plans” and “leverage training and management expertise that resides within DOD, other federal agencies, state and local governments, and private sector business and academic institutions to enhance its defense support, disaster response, and response to unforeseen events.”

We can expect the military to play an ever more visible role not just abroad – which is what most of the NDAA is about – but here at home in the year to come, as Posse Comitatus becomes as anachronistic and quaint as the Geneva Conventions.

© 2021 ACLU of Massachusetts.