One of the ongoing complaints about President Obama has been his signing of the 2012 National Defense Authorization Act, particularly the infamous section 1021 which, it’s asserted by all manner of sensationalizing hand-wavers, authorizes indefinite detention of US citizens.

However, this description leaves out a few very important facts about the NDAA and Obama’s decision to sign it that are generally overlooked by those who leverage fear and sensationalism to keep people tuned in to their TV shows and websites.  Here are some facts that most of the coverage has left out of the story either because it’s not “sexy” enough or because it undermines the “OMG evil Obama” narrative that some media are intent on constructing:

• Section 1021 establishes no new rule or power, but rather "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 authority first granted in the 2001 Authorization for the Use of Military Force."
• Section 1021 explicitly says that "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."
• The president has no line-item veto, and would have had to spike the bill (which passed with a veto-proof majority in both the House and the Senate) entirely. This would have meant...
  • pay for soldiers including health care and salary would be held up until another NDAA could be written, passed through Congress, and signed, or at the very least until a veto over-ride vote could be held in Congress
  • pay for military contractors including food services and civilian employees working in active war zones would be held up until another NDAA could be written, passed through Congress, and signed, or at the very least until a veto over-ride vote could be held in Congress
  • pay for military vendors including munitions, armor, transportation, telecommunications, and other equipment ranging from tends to computers would be held up until another NDAA could be written, passed through Congress, and signed, or at the very least until a veto over-ride vote could be held in Congress
  • all in the middle of ongoing military action,
  • effectively stranding our troops in combat with no pay, no equipment, no supplies, and no food,
  • while also cutting off all survivors' benefits and ongoing health care for roughly 40,000 non-fatal casualties, all...
  • to have Congress over-ride the veto anyway.
• Section 1021 has been declared unconstitutionally vague by a federal court, and one appeal was already burned up before the election, ensuring that none of the approaches used in that appeal could be employed by a Romney white house, who might actually want to win the case.
• Had President Obama refused to sign the bill, his political opponents could then assert that he left troops hanging in combat, unpaid, to make a political point that could not be won in any circumstance, as the veto would have been easily over-ridden by Congress.
• The entire thing was set up to ensure a "no-win" situation for the President, politically...and he won anyway.

Liberal I may be, but I'm not so liberal as to want to strand a couple hundred thousand troops in a war zone because I object to one section of a 5,140-section bill that the president could not have done a damn thing to eliminate anyway, except for precisely what he did - sign the thing so our troops and veterans continue getting paid, and let the court system act as a de facto line-item veto when the entirely predictable and inevitable challenge to section 1021 was brought up for consideration, and then do his best to burn through all possible appeals before a potential new administration had the chance to get their fight in order and possibly win those appeals.

Now, the Obama Justice Department has a four-year window in which to take this provision of the 2012 NDAA through the court system, setting multiple precedents that will preclude such provisions in the future and may even undo the original provisions created under the 2001 AUMF, while also creating the legal framework by which the legitimately necessary subset of the power created by 1021 can be fully understood and written into law while protecting the rights of both US citizens and foreign detainees.

Of course this is all very nuanced and not easy to squeeze into a bumper-sticker, graphic meme, or soundbite, and it doesn’t engender strong feelings and intense interest among audiences, so it’s not really been covered by the mainstream media.