Adam Serwer

Reporter

Adam Serwer is a reporter at Mother Jones. Formerly a staff writer at the American Prospect, he has written for the Washington Post, the Root, the Village Voice, and the New York Daily News.

Get my RSS | Follow @adamserwer

Why Obama Should Veto The Defense Authorization—And Why He Might Not

—By Adam Serwer

| Wed Dec. 14, 2011 8:11 AM PST

For weeks, the Obama administration has waged a rather effective campaign against the military detention provisions of the National Defense Authorization Act, dispatching high level security officials to warn Congress that the bill would harm counterterrorism efforts.

Well it worked, sort of. The conference version of the bill gives the White House so much room to maneuver around the "mandatory" nature of the military detention provisions that Congress can argue they've given the administration the "flexibility" it needs to fight terrorism effectively. At the same time, the bill creates a presumption of military custody for foreign nationals suspected of terrorism where there was none before. That means next time a foreign national gets pulled off a plane with their underpants on fire, and the administration doesn't throw him in a brig somewhere, elected officials can run to the microphones and express their frustration that the White House is defying congressional will.

The bill also retains the restrictions on Gitmo transfers, which the Obama administration threatened to veto when they first came into effect last year. The transfer restrictions effectively turn Gitmo into the Chateu d'If: Not a single detainee has been transferred since the rules were adopted, not even the scores that have been cleared for transfer by the Guantanamo task force. Pentagon General Counsel Jeh Johnson has called the restrictions "onerous and near impossible to satisfy," and it's a good bet that if they're maintained there won't be any transfers next year either. There are legitimate concerns about the rising "recidivism" rates of former Gitmo detainees (the term recidivism is a bit of a misnomer since most were never convicted of anything) but these ignore changes in the review process. The more than 500 detainees released under the Bush administration have a much higher "recidivism" rate than the less than a hundred released under Obama, in part because the Bush administration did an very poor job of handling Gitmo case files.

The Obama administration had a very good reason not to go to the mat over the Gitmo transfers last time around though—it would have meant vetoing the repeal of Don't Ask Don't Tell. This time, the administration faces no such choice.

Congress' changes actually put the choice for the administration in much sharper relief. By making addressing the security concerns, but not the ones related to civil liberties and the rule of law, Congress is basically asking the administration how serious it was when it said in its Statement of Administration Policy that the detention provisions in the NDAA would be "inconsistent with the fundamental American principle that our military does not patrol our streets." Obama has said before that the choice between security and American ideals is a false one, but in practice the administration has erred on the side of security and secrecy. With Congress having given the administration "security," we will now see whether the administration thinks those American ideals are just as worth fighting for.

Advertise on MotherJones.com

New NDAA's Loopholes Make Its Military Detention Provisions Almost Pointless

—By Adam Serwer

| Tue Dec. 13, 2011 2:10 PM PST

The version of the National Defense Authorization Act (NDAA) that emerged from a House-Senate conference meeting Tuesday morning contains many of the same provisions that administration officials and national security experts have warned would harm national security. But while earlier incarnations of the detention provisions were confusing and harmful, now they're confusing and largely symbolic.

"Those who were big supporters of this provision, well, this doesn't accomplish what they wanted. Their enthusiasm is misplaced," said Robert Chesney, a national security law expert who teaches at the University of Texas School of Law. "Those who are decrying this as the militarization of domestic law enforcement, it doesn't have to be that either."

The new bill still mandates military detention without trial for any non-citizen terrorism suspect apprehended in the US who is determined to be a member of al Qaeda or an "affiliated group." The administration now has several ways to get around that requirement, however. It could issue a national security waiver—a letter from the administration authorizing a trial in civilian court. Alternatively, the FBI could simply detain a suspect up until a determination is made that he can be detained by the military. Even after that, if the administration decides to try the suspect in civilian court, there's still no need to put him in military custody. Under the latest version of the law, someone like underwear bomber Umar Abdulmutallab could still go from interrogation to trial without ever passing through military hands—and without the need for a national security waiver. (The national security waiver option that has been a part of the Senate bill since the earliest drafts, although the authority to grant the waiver now rests with the president instead of the secretary of defense—a change a Senate aide said was requested by the administration.)

The question is why the detention provisions remain in the bill at all. It looks like Congress, in responding to concerns raised by national security officials, essentially made the "mandatory" military detention optional. The new bill still shifts the presumption towards military custody, and in doing so, sets up a potential controversy every time a non-citizen terror suspect is apprehended in the US. The changes allow members of Congress to claim they're not hampering counterterrorism operations while still leaving them room to slam the president should he decide to forgo military detention. Republicans have seized on previous incidents to criticize the president for not being "tougher" on terrorism by extending the military's role. At least in a symbolic sense, this bill gives them more ammunition in case another underwear bomber type situation occurs, because they would be able to accuse the president of ignoring the law. Perhaps, convinced of the danger of micromanaging the president in advance, Congress has made it easier to do so after the fact.

"Now there's something more concrete for the critics to point to and say, Congress expressed its will and you exploited your lawyers to do something that's contrary to the spirit of the bill," Chesney said. "It does ramp up political costs." During Tuesday's White House press briefing, Press Secretary Jay Carney did not say whether the new bill would force the White House to make good on its veto threat, remarking instead that administration officials were still looking at the new bill.

Civil liberties and human rights advocates were less convinced that the bill's mandatory detention provisions could be so easily circumvented. A coalition of human rights, civil liberties advocates and national security experts held a conference call on Tuesday morning to warn that the NDAA still carves out a hypothetical role for the military to enforce the law on American soil. Sen. Lindsey Graham's (R-S.C.) comment that "the homeland... is that battlefield"—made during the December 1 debate after which the Senate approved its version of the NDAA—applies equally now, said Raha Wala, a lawyer at Human Rights First. And ACLU legislative counsel Chris Anders argued that the NDAA could set up a jurisdictional conflict between the military and the FBI similar to those that exist between state and federal level law enforcement authorities.

The latest version of the bill bill maintains transfer restrictions on the transfer of Gitmo detainees that were passed last year. It also retains the language of the Senate "compromise" on indefinite detention without trial of American citizens apprehended on US soil, leaving the issue an open question for the courts to resolve. The way the compromise is worded, however, could be construed as authorizing military detention of American citizens who are captured abroad, even if they're not apprehended fighting on a hot battlefield such as Afghanistan.

The "reaffirmation" of the 2001 Authorization for the Use of Military Force, however, did not survive the conference. Civil liberties advocates had criticized the provision, which was part of the House's version of the bill, as authorizing an endless worldwide war against terrorism. But given everything else left in the compromise bill, they don't consider the demise of the AUMF reauthorization much of a victory. "The House worldwide war provision was killed off," said Anders, who described the change as merely going from "worse to bad."

Bloggingheads: Cylon Romney and Voltron Gingrich Edition

—By Adam Serwer

| Tue Dec. 13, 2011 12:40 PM PST

Reason's Katherine Mangu-Ward and I talk about the anguish of Republicans choosing between Mitt Romney and Newt Gingrich, with some stuff about the scary futility of climate change agreements towards the end.

I also unveil my theory of Gingrich as Republican Dealbreaker Voltron, combining the mandate love of Romney, the immigration moderation of Rick Perry, the glib carelessness of Michele Bachmann, the personal issues of Herman Cain, and even the occasional sense of contempt for conservatives that seems to be hurting John Huntsman.

Republicans Cave on Anti-Gay Amendments in Defense Bill

—By Adam Serwer

| Tue Dec. 13, 2011 6:16 AM PST

In October, House Armed Services Committee Chairman Buck McKeon (R-Calif.) vowed not to let the National Defense Authorization Act pass, if provisions prohibiting military chaplains from performing same-sex marriages weren't included in the bill. But as the final version of the defense spending bill emerged Monday evening, the anti-gay amendments had been stripped.

With the repeal of the military's Don't Ask Don't Tell policy, Republicans sought to prevent any further recognition of gay and lesbian servicemembers' rights. "[Y]ou get the camel's nose in the tent, and things just start expanding," McKeon told C-SPAN in early October while justifying the ban. When asked, McKeon said that preventing military chaplains from deciding whether or not they were comfortable officiating same-sex marriage ceremonies was worth "not having a defense authorization bill."

A little background: In September, the Pentagon released a memo authorizing military chaplains to participate in same-sex marriage ceremonies, provided that "the ceremony is not prohibited by applicable state and local law." The memo also clearly stated that "a chaplain is not required to participate in or officiate a private ceremony if doing so would be in variance with the tenets of his or her religion or personal beliefs." The Defense of Marriage Act still bars federal recognition of same-sex marriages, but in February the Obama administration said the law was unconstitutional and it would no longer defend it in court.

Republicans deliberately mischaracterized the memo as forcing military chaplains to perform same-sex marriages even if they were against their religious convictions. "We think that chaplains should not be forced to do something that goes against their conscience," McKeon said in October. As noted above, given that the administration memo explicitly says chaplains can't be forced to officiate at such ceremonies, that objection was entirely bogus. The amendment banning military chaplains from voluntarily officiating at same-sex marriage ceremonies and barring such ceremonies from taking place on military facilities was introduced by Rep. Todd Akin (R-Mo.), who accused the Department of Defense of putting "the White House’s liberal agenda ahead of following the law." Ultimately, despite McKeon's earlier statement, Republicans weren't willing to kill the defense bill over this.

Because of DOMA, same-sex couples still lack many of the basic rights and benefits extended to heterosexual couples in the military, despite the repeal of the Don't Ask Don't Tell policy. The chaplain issue is important, but it doesn't resolve the underlying matter, which is that despite gay and lesbian servicemembers being able to serve openly, their relationships still aren't seen as equal under the law.

Islamophobes Protest Show for Depicting Muslims As Normal People

—By Adam Serwer

| Mon Dec. 12, 2011 12:19 PM PST

Nawal and Nader Aoude of TLC's All-American Muslim.

The Learning Channel's "All-American Muslim," a reality show focusing on a group of Muslim families in Dearborn, Michigan, has been a target of the Shariah panic industry ever since it started airing. On Friday, hardware retailer Lowe's pulled their ads from the show in response to a protest campaign from the Florida Family Association.

The Washington Post published the FFA's statement on why it objected so vehemently to the show.

"All-American Muslim’ is propaganda clearly designed to counter legitimate and present-day concerns about many Muslims who are advancing Islamic fundamentalism and Sharia law," the Florida group asserts in a letter it asks members to send to TLC advertisers.

"The show profiles only Muslims that appear to be ordinary folks while excluding many Islamic believers whose agenda poses a clear and present danger to the liberties and traditional values that the majority of Americans cherish," the FFA’s letter continues.

These objections mirror those previously expressed by anti-Muslim activists such as Pamela Geller (she of the stealth jihad turkeys), who wrote, "All-American Muslim" is trying to show nominal Muslims as the norm, as if their existence takes away the threat from devout Muslims." Yet the show wasn't completely devoid of Muslim evil, as she goes on to explain:

It is mentioned once but never explained: The man has to convert to Islam because a Muslim woman cannot marry a non-Muslim man. This is a supremacist measure designed to make the Muslim community always expand at the expense of the non-Muslim one. But there is no hint of that in this show.

My grandmother must also have been a "supremacist"—of the Jewish variety that is. She insisted that my mother convert to Judaism before marrying my father. Perhaps Geller can explain why, as with ritual killing of animals to comport with religious dietary laws, this is sinister when Muslims do it but not when Jews do it.

Geller's frequent comrade-in-arms in the fight against the "Islamicization" of the United States, Robert Spencer, also weighed in, writing that "[t]he Muslims it depicts are for the most part undoubtedly harmless, completely uninterested in jihad and Islamic supremacism[.]" It's a shame that Lowe's would come to the conclusion that "Muslims being normal" is so controversial that it would pull its advertisements.

Anti-Muslim activists like Geller and Spencer frequently argue that they are critics of Islam but they are not anti-Muslim—that they are not motivated by bigotry. But their animosity towards "All-American Muslim," as expressed in their own words, is motivated by the fact that it portrays Muslims as normal human beings. If Geller, Spencer, and their allies were actually concerned about Islamic extremism, and not fostering a civilizational conflict in which all Muslims are potential enemies, then this show would pose no danger to their agenda.

Their biggest fear is that shows like "All-American Muslim" will succeed at fostering the idea that Islam and American values are not necessarily in conflict. After all, if non-Muslim Americans begin to see American Muslims as being like themselves, then it becomes far more difficult to argue that Muslims' rights should be curtailed, that Muslims should be treated with greater suspicion than other Americans, or that Muslims shouldn't be able to build houses of worship on their own private property. It also becomes much harder to sustain a million-dollar industry devoted to persuading the country that Muslims as a whole are dangerous.

For Islamophobes, this would be more than just the end of their movement, it would be the end of their business model. No wonder they're so frightened.