[dragonwriter]

> You're responding to me as if I'm justifying the indefinite detention clause of the NDAA. I am not.

No, I'm respodning to you as if you were making an inaccurate fact claim about the NDAA, which you were, whether you refer to what the act says on its face or, even moreso, what the practical result of the authority in the act is.

> I am saying it does not apply here

No, that's not what you said that I responded to. Had you said that, I would not have responded as I did. In any case, theft of secrets in aid of an enemy is a belligerent act, so (even if subsequent investigation ruled out that the acts were done in support of al-Qaeda), were the Administration to, in good faith, believe that the acts were carried out on behalf of or in aid of al-Qaeda, the act here would fall within the ambit of the bare text of the NDAA.

(It wouldn't fall within the requirements of PPD-14, but PPD-14 by its own terms addresses only executive policy on the applicability military custody requirement of Section 1022 of the NDAA, a requirement which applies to a subset of the population for which indefinite detention is authorized by Section 1021 of the NDAA.)

Note I am not saying that the administration treated this as a detention under the NDAA, merely that the concept that the NDAA could -- consistent with the text of the Act -- have been applied here is not at all farfetched.

[tptacek]

From what reporting anywhere are you generating the notion that this guy stole secrets in the aid of Al Qaeda or some other enemy named in a current AUMF? You're dodging.

Again, also, please take a moment to read Obama's NDAA signing statement. He is still the President.

[dragonwriter]

> From what reporting anywhere are you generating the notion that this guy stole secrets in the aid of Al Qaeda

I'm not. I'm saying if, at some stage of the investigation it was believed that he did, then even if that was later determined not to be true and regular criminal charges in the civilian justice system were determined to be appropriate, the NDAA detention provisions could have been applied at that earlier stage. Since the whole NDAA discussion was about what the "secret arrest" that preceded the publicly-revealed charges means, while I absolutely don't believe the NDAA was applied or that that was what was actually referred to, nevertheless, its not a categorically implausible interpretation.

> Again, also, please take a moment to read Obama's NDAA signing statement.

I have. If you'd like to make an argument about its specific relevance (as you have so far, notably, not done, despite vaguely waving your hand in its general direction), please feel free to do so.

The signing statement says basically two things of significance: (1) That Section 1021 authorizing indefinite detention is unnecessary and duplicative of the authority already existing in inherent executive powers and the 9/11 AUMF, and (2) That Section 1022, seeking to mandate military custody for certain of those detained under the power referred to in Section 1021 seeks to impose an inappropriate constraint on executive discretion as to how detainees are held, but that its text provides enough flexibly for a minimally-acceptable interpretation which preserves substantial executive discretion (which Obama that implemented as the executive interpretation through PPD-14, which I've referenced earlier, and which, in any case, is irrelevant since, whether or not 1021 could have applied in this case, its clear that 1022 -- and thus Obama's reservations about the NDAA beyond that it restates existing authority, and the interpretations in PPD-14 -- would not apply.)

[tptacek]

This is a lot of text, but I'm not sure what the real argument is. It seems like you're saying, "sure, he's not helping Al Qaeda, but they could say he was".

Well, they could say he was a member of Al Qaeda, too. What couldn't they do? If we want to stipulate a lawless government, why bother mentioning the NDAA at all? They could just drone strike him.

The NDAA has nothing to do with this story. I don't know why you're so diligently trying to make the case that it does.

[dragonwriter]

> It seems like you're saying, "sure, he's not helping Al Qaeda, but they could say he was".

Mostly, I'm saying that "sure, they may have determined now that is theft was not to aid al-Qaeda, but they may have initially believed it was for that purpose; an NDAA detention on that basis would be supported by the text of the NDAA -- and uncontradicted by any public executive policy -- and consistent with the 'secret arrest' description, and not inconsistent with a later determination that that status did not apply accompanied by a decision to pursue normal criminal charges in the civilian justice system."

(I did mention further upthread that the procedural nature of the NDAA detention also practically makes pretextual ascription of association with al-Qaeda or other groups covered within the NDAA a real risk, but that wasn't my primary contention.)

> The NDAA has nothing to do with this story.

I've actually explicitly said that that is most likely the case.

> I don't know why you're so diligently trying to make the case that it does.

I'm not. I only got into the NDAA because of your factually inaccurate description of its requirements in your overzealous attempt to support your equally factually incorrect claim that there is no statutory basis for federal law enforcement to detain U.S. citizens without counsel in "secret arrests".

Had you merely argued that the circumstances here made it appear unlikely that the statutory authority authorizing such detention would either be strictly applicable or invoked by the administration, the character of my response (if I even saw a point to responding) would have been very different.

[tptacek]

I think you read a little bit too much into my original comment and have gone on tilt.

[nkurz]

> The 2012 NDAA policy you're citing requires the detainee to be a member of Al Qaeda.

The "tilt" appears to have been caused by your lack of acknowledgement that the quoted statement was inaccurate. Distinct from this particular instance, "dragonwriter" is asserting that contrary to your statement, the NDAA is legally applicable to a wider class of people than just members of al Qaeda.

Do you agree that one may be subject to the NDAA without being (or being even accused of being) a "member of al Qaeda" and that there are cases where the NDAA can be used as basis to "detain US citizens without counsel"? If so, please correct the tilt by acknowledging the correction. If not, perhaps further explain your position?

[Zigurd]

You don't have to have a "lawless government" for a prosecutor to do something that seems wrong, but for which there is no penalty, if it would give him an advantage.

You just need ambitious, aggressive prosecutors.