[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?

[tptacek]

You make the list of organizational affiliations that can subject a US citizen to the indefinite detention provision of the 2012 NDAA and then decide for yourself how misleading my use of the term "Al Qaeda" was.

And, no, I do not agree with your second paragraph.

Finally: this has nothing to do with the comment I made upthread. Jose Padilla is literally the motivating example for the 2012 NDAA provision!

[nkurz]

Thanks for the response. I don't know enough about the issue to agree or disagree with you personally. I merely hoped I understood it well enough to explain why 'dragonwriter' reacted as he did. From the outside, including the Taliban and "associated forces" seems like an important addition, especially if ever applied by a future administration guided by the text of the law rather than the origin story.

[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.