The Indefinite Detention Bill (the 2012 National Defense Authorization Act) DOES Apply to American Citizens on U.S. Soil
Updated December 17, 2011
WILL OBAMA SEND U.S. CITIZENS TO GUANTANAMO?
The 2012 National Defense Authorization Act (NDAA) passed by Congress gives the military the power to detain American citizens in its gulag prisons like Camp Delta in Guantanamo, Cuba.
Jose Padilla, a U.S. citizen, was held in solitary confinement in a military prison in South Carolina for nearly 4 years - without being charged.
U.S. District Judge Marcia Cooke
Elements of the law are so legally confusing, as well as being constitutionally questionable, that any detentions are almost certain to be challenged all the way to the supreme court, Chris McGreal writes in the Guardian article "Military given go-ahead to detain US terrorist suspects without trial."
The bill is confusing. As Wired noted on December 1st:
The ACLU notes:
http://www.youtube.com/watch?feature=player_embedded&v=aUHh1iqe43w
Thursday, Dec 15, 2011 11:31 AM EET
(updated below)
In one of the least surprising developments imaginable, President Obama – after spending months threatening to veto the Levin/McCain detention bill – yesterday announced that he would instead sign it into law (this is the same individual, of course, who unequivocally vowed when seeking the Democratic nomination to support a filibuster of “any bill that includes retroactive immunity for telecom[s],” only to turn around – once he had the nomination secure — and not only vote against such a filibuster, but to vote in favor of the underlying bill itself, so this is perfectly consistent with his past conduct). As a result, the final version of the Levin/McCain bill will be enshrined as law this week as part of the the 2012 National Defense Authorization Act (NDAA). I wrote about the primary provisions and implications of this bill last week, and won’t repeat those points here.
The ACLU said last night that the bill contains “harmful provisions that some legislators have said could authorize the U.S. military to pick up and imprison without charge or trial civilians, including American citizens, anywhere in the world” and added: “if President Obama signs this bill, it will damage his legacy.” Human Rights Watch said that Obama’s decision “does enormous damage to the rule of law both in the US and abroad” and that “President Obama will go down in history as the president who enshrined indefinite detention without trial in US law.”
Both groups pointed out that this is the first time indefinite detention has been enshrined in law since the McCarthy era of the 1950s, when — as the ACLU put it — “President Truman had the courage to veto” the Internal Security Act of 1950 on the ground that it “would make a mockery of our Bill of Rights” and then watched Congress override the veto. That Act authorized the imprisonment of Communists and other “subversives” without the necessity of full trials or due process (many of the most egregious provisions of that bill were repealed by the 1971 Non-Detention Act, and are now being rejuvenated by these War on Terror policies of indefinite detention). President Obama, needless to say, is not Harry Truman. He’s not even the Candidate Obama of 2008 who repeatedly insisted that due process and security were not mutually exclusive and who condemned indefinite detention as “black hole” injustice.
There have been several persistent myths circulating about this bill and President Obama’s position on it that need to be clarified once and for all:
First, while the powers this bill enshrines are indeed radical and dangerous, most of them already exist. That’s because first the Bush administration and now the Obama administration have aggressively argued that the original 2001 AUMF already empowers them to imprison people without charges, use force against even U.S. citizens without due process (Anwar Awlaki), and target not only members of Al Qaeda and the Taliban (as the law states) but also anyone who “substantially supports” those groups and/or “associated forces” (whatever those terms mean). That’s why this bill states that it does not intend to change the 2001 AUMF (even as it codifies far broader language defining the scope of the war) or the detention powers of the President, and it’s why they purposely made the bill vague on whether it expressly authorizes military detention of U.S. citizens on U.S. soil: it’s because the bill’s proponents and the White House both believe that the President already possesses these broadened powers with or without this bill. With a couple of exceptions, this bill just “clarifies” — and codifies — the powers President Obama has already claimed, seized and exercised.
I’m embedding the video below of the segment I did last night on Cenk Uygur’s TV program where I elaborated on this point: this is not to mitigate how heinous this bill is, as there are real dangers to codifying these powers in law with bipartisan Congressional support as opposed to having the President unilaterally seize them and have some lower courts recognize them. Instead, it’s a reflection of how horrible the civil liberties status quo has become under the Bush and Obama administrations. This is the reason why civil libertarians have been so harshly critical of this President. It’s the reason civil liberties groups have been saying things like this even when saying them was so unpopular: it’s because Obama has, for three years now, been defending and entrenching exactly the detention powers this law vests, but doing it through radical legal theories, warped interpretations of the 2001 AUMF, continuities with the Bush/Cheney template, and devotion to Endless War and the civil liberties assaults it entails. See the newspaper excerpts below for more proof of this.
Second, as I documented at length last week, Obama’s veto threat was never about substantive objections to the detention powers vested by this bill; put another way, he was never objecting to the bill on civil liberties grounds. Obama, as I documented last week and again below, is not an opponent of indefinite detention; he’s a vigorous proponent of it, as evidenced by his continuous, multi-faceted embrace of that policy.
Obama’s objections to this bill had nothing to do with civil liberties, due process or the Constitution. It had everything to do with Executive power. The White House’s complaint was that Congress had no business tying the hands of the President when deciding who should go into military detention, who should be denied a trial, which agencies should interrogate suspects (the FBI or the CIA). Such decisions, insisted the White House, are for the President, not Congress, to make. In other words, his veto threat was not grounded in the premise that indefinite military detention is wrong; it was grounded in the premise that it should be the President who decides who goes into military detention and why, not Congress.
Even the one substantive objection the White House expressed to the bill — mandatory military detention for accused American Terrorists captured on U.S. soil — was about Executive power, not due process or core liberties. The proof of that — the definitive, conclusive proof — is that Sen. Carl Levin has several times disclosed that it was the White House which demanded removal of a provision in his original draft that would have exempted U.S. citizens from military detention (see the clip of Levin explaining this in the video below). In other words, this was an example of the White House demanding greater detention powers in the bill by insisting on the removal of one of its few constraints (the prohibition on military detention for Americans captured on U.S. soil). That’s because the White House’s North Star on this bill — as they repeatedly made clear — was Presidential discretion: they were going to veto the bill if it contained any limits on the President’s detention powers, regardless of whether those limits forced him to put people in military prison or barred him from doing so.
Any doubt that this was the White House’s only concern with the bill is now dispelled by virtue of the President’s willingness to sign it after certain changes were made in Conference between the House and Senate. Those changes were almost entirely about removing the parts of the bill that constrained his power, and had nothing to do with improving the bill from a civil liberties perspective. Once the sole concern of the White House was addressed — eliminating limits on the President’s power — they were happy to sign the bill even though (rather: because) none of the civil liberties assaults were fixed. As Mother Jones‘ Adam Serwer explained:
Third, the most persistent and propagandistic set of myths about President Obama on detention issues is that he tried to end indefinite detention by closing Guantanamo, but was blocked by Congress from doing so. It is true that Congress blocked the closing of Guantanamo, and again in this bill, Congress is imposing virtually insurmountable restrictions on the transfer of detainees out of that camp, including for detainees who have long ago been cleared for release (restrictions that Obama is now going to sign into law). But — and this is not a hard point to understand — while Obama intended to close Guantanamo, he always planned — long before Congress acted — to preserve Guantanamo’s core injustice: indefinite detention.
I need to say that again: long before, and fully independent of, anything Congress did, President Obama made clear that he was going to preserve the indefinite detention system at Guantanamo even once he closed the camp. That’s what makes the apologias over Obama and GITMO so misleading: the controversy over Guantanamo was not that about its locale — that it was based in the Caribbean Sea — so that simply closing it and then re-locating it to a different venue would address the problem. The controversy over Guantanamo was that it was a prison camp where people were put in cages indefinitely, for decades or life, without being charged with any crime. And that policy is one that President Obama whole-heartedly embraced from the start.
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ACLU
CONTACT: media@dcaclu.org
WASHINGTON – President Obama signed the National Defense Authorization Act (NDAA) into law today. The statute contains a sweeping worldwide indefinite detention provision. While President Obama issued a signing statement saying he had “serious reservations” about the provisions, the statement only applies to how his administration would use the authorities granted by the NDAA, and would not affect how the law is interpreted by subsequent administrations. The White House had threatened to veto an earlier version of the NDAA, but reversed course shortly before Congress voted on the final bill.
“President Obama's action today is a blight on his legacy because he will forever be known as the president who signed indefinite detention without charge or trial into law,” said Anthony D. Romero, ACLU executive director. “The statute is particularly dangerous because it has no temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield. The ACLU will fight worldwide detention authority wherever we can, be it in court, in Congress, or internationally.”
Under the Bush administration, similar claims of worldwide detention authority were used to hold even a U.S. citizen detained on U.S. soil in military custody, and many in Congress now assert that the NDAA should be used in the same way again. The ACLU believes that any military detention of American citizens or others within the United States is unconstitutional and illegal, including under the NDAA. In addition, the breadth of the NDAA’s detention authority violates international law because it is not limited to people captured in the context of an actual armed conflict as required by the laws of war.
“We are incredibly disappointed that President Obama signed this new law even though his administration had already claimed overly broad detention authority in court,” said Romero. “Any hope that the Obama administration would roll back the constitutional excesses of George Bush in the war on terror was extinguished today. Thankfully, we have three branches of government, and the final word belongs to the Supreme Court, which has yet to rule on the scope of detention authority. But Congress and the president also have a role to play in cleaning up the mess they have created because no American citizen or anyone else should live in fear of this or any future president misusing the NDAA’s detention authority.”
The bill also contains provisions making it difficult to transfer suspects out of military detention, which prompted FBI Director Robert Mueller to testify that it could jeopardize criminal investigations. It also restricts the transfers of cleared detainees from the detention facility at Guantanamo Bay to foreign countries for resettlement or repatriation, making it more difficult to close Guantanamo, as President Obama pledged to do in one of his first acts in office.
--------------------------------------
The breadth of the NDAA’s worldwide detention authority violates the
Constitution and international law because it is not limited to people
captured in an actual armed conflict, as required by the laws of
war. Under the Bush administration, similar claims of worldwide
detention authority were used to hold even a U.S. citizen captured on
U.S. soil in military custody, and many in Congress assert that the NDAA
should be used in the same way. The ACLU does not believe that the
NDAA authorizes military detention of American citizens or anyone else
in the United States. Any president’s claim of domestic military
detention authority under the NDAA would be unconstitutional and
illegal. Nevertheless, there is substantial public debate around
whether the NDAA could be read even to repeal the Posse Comitatus Act
and authorize indefinite military detention without charge or trial
within the United States.
Although President Obama issued a signing statement saying he had “serious reservations” about the NDAA’s detention provisions, the statement only applies to how his administration would use them, and would not affect how the law is interpreted by subsequent administrations. The provisions – which were negotiated by a small group of members of Congress, in secret, and without proper congressional review – are inconsistent with fundamental American values.
Both Congress and the president need to clean up the mess they have created. No one should live in fear of this or any future president misusing the NDAA’s detention authority. The NDAA’s detention provisions must be repealed.
WILL OBAMA SEND U.S. CITIZENS TO GUANTANAMO?
'It's something so radical that it would have been considered crazy had it been pushed by the Bush administration.'
- Tom Malinowski of Human Rights Watch on detention laws in NDAA 2012
- Tom Malinowski of Human Rights Watch on detention laws in NDAA 2012
I
have never understood how so many Americans accepted the torture of
Padilla - an American citizen on U.S. soil, and not even a foreigner
held at Guantánamo - without recognizing that, although a Latino Muslim
convert was today's "enemy combatant," tomorrow it might be some other
demonized American. I was also astonished when no one cared that
Padilla's torture was not mentioned in his trial, and he received a
sentence of 17 years and four months for little more than a thought
crime.
- Andy Worthington, "It Could Be You: The Sad Story of Jose Padilla, Tortured and Denied Justice"
“1031, the statement of authority to detain, does apply to American citizens and it designates the world as the battlefield, including the homeland.”
- Senator Lindsey O. Graham (R.-SC)
- Andy Worthington, "It Could Be You: The Sad Story of Jose Padilla, Tortured and Denied Justice"
“1031, the statement of authority to detain, does apply to American citizens and it designates the world as the battlefield, including the homeland.”
- Senator Lindsey O. Graham (R.-SC)
The 2012 National Defense Authorization Act (NDAA) passed by Congress gives the military the power to detain American citizens in its gulag prisons like Camp Delta in Guantanamo, Cuba.
Jose Padilla, a U.S. citizen, was held in solitary confinement in a military prison in South Carolina for nearly 4 years - without being charged.
IT COULD BE YOU
Jose
Padilla, a U.S. citizen from Chicago, was arrested in 2002 at O’Hare
International Airport on suspicion of plotting to set off a radioactive
“dirty bomb” and held for nearly 4 years - without criminal charges - in
solitary confinement in a military prison. Dubbed an "enemy combatant"
by George Bush, John Ashcroft, and Michael Chertoff, Padilla was kept in
complete isolation for three and half years with prolonged sensory
deprivation (seen above). According to a psychiatrist who spent 22 hours
with Padilla in 2006, "What happened at the brig was essentially the
destruction of a human being’s mind." Although the government had
claimed that Padilla was suspected of planning to build and explode a
"dirty bomb", he was neither charged nor convicted for having done so.
U.S. District Judge Marcia Cooke
In
January 2006 Padilla was transferred to Miami, Florida, to face
criminal conspiracy charges. In August 2007 he was found guilty and
sentenced by Judge Marcia G. Cooke to 17 years in prison. During the
trial, Judge Cooke, who had been appointed to the bench by George W.
Bush in 2003, barred any mention of the three and a half years Padilla
had been held in a legal black hole, sidestepping the fundamental
question of whether the government has the legal authority to detain
U.S. citizens without charges. From 1999 to 2002 Cooke had served as
Chief Inspector General for the State of Florida under Governor Jeb
Bush, where she was responsible for promoting accountability, integrity,
efficiency, and ethical behavior in the agencies under Bush's
jurisdiction.
A
good presentation of the conflicting claims about the 2012 National
Defense Authorization Act and the power it gives the military to detain
U.S. citizens without due process can be read on the Washington Blog
under the title "The Indefinite Detention Bill DOES Apply to American Citizens on U.S. Soil":
DON'T BE FOOLED
The Indefinite Detention Bill DOES Apply to American Citizens
Even at this 11th hour – when all of our liberties and freedom are about to go down the drain – many people still don’t understand that the indefinite detention bill passed by Congress allows indefinite detention of Americans on American soil.
Even at this 11th hour – when all of our liberties and freedom are about to go down the drain – many people still don’t understand that the indefinite detention bill passed by Congress allows indefinite detention of Americans on American soil.
Elements of the law are so legally confusing, as well as being constitutionally questionable, that any detentions are almost certain to be challenged all the way to the supreme court, Chris McGreal writes in the Guardian article "Military given go-ahead to detain US terrorist suspects without trial."
Sources and Recommended Reading:
The Indefinite Detention Bill DOES Apply to American Citizens on U.S. Soil, Washington Blog, 14 December 2011http://www.washingtonsblog.com/2011/12/the-indefinite-detention-bill-does-apply-to-american-citizens-on-u-s-soil.html
Keneally, Meghan, "Will Obama send U.S. citizens to Guantanamo?" Daily Mail (UK), 16 December 2011http://www.dailymail.co.uk/news/article-2074576/President-Obama-signs-law-detain-terror-suspects-indefinitely.html#ixzz1ghs0Ywzu
Keneally, Meghan, "Will Obama send U.S. citizens to Guantanamo?" Daily Mail (UK), 16 December 2011http://www.dailymail.co.uk/news/article-2074576/President-Obama-signs-law-detain-terror-suspects-indefinitely.html#ixzz1ghs0Ywzu
McGreal, Chris, "Military given go-ahead to detain US terrorist suspects without trial", Guardian (UK), 15 December 2011http://www.guardian.co.uk/world/2011/dec/15/americans-face-guantanamo-detention-obama?newsfeed=true
Vladeck, Stephen, "The lost Padilla verdict," Los Angeles Times, 17 August 2007http://www.latimes.com/news/opinion/commentary/la-oe-vladeck17aug17,0,4813258.story
Worthington, Andy, "It Could Be You: The Sad Story of Jose Padilla, Tortured and Denied Justice", Truthout, 3 October 2011 http://www.truth-out.org/it-could-be-you-sad-story-jose-padilla-tortured-and-denied-justice/1317399537
Vladeck, Stephen, "The lost Padilla verdict," Los Angeles Times, 17 August 2007http://www.latimes.com/news/opinion/commentary/la-oe-vladeck17aug17,0,4813258.story
Worthington, Andy, "It Could Be You: The Sad Story of Jose Padilla, Tortured and Denied Justice", Truthout, 3 October 2011 http://www.truth-out.org/it-could-be-you-sad-story-jose-padilla-tortured-and-denied-justice/1317399537
-------------------------------------------
The Indefinite Detention Bill DOES Apply to American Citizens on U.S. Soil
“Don’t Be Fooled”: The Indefinite Detention Bill DOES Apply to American Citizens
Even at this 11th hour – when all of our liberties and freedom are about to go down the drain – many people still don’t understand that the indefinite detention bill passed by Congress allows indefinite detention of Americans on American soil.The bill is confusing. As Wired noted on December 1st:
It’s confusing, because two different sections of the bill seem to contradict each other, but in the judgment of the University of Texas’ Robert Chesney — a nonpartisan authority on military detention — “U.S. citizens are included in the grant of detention authority.”A retired admiral, Judge Advocate General and Dean Emeritus of the University of New Hampshire School of Law also says that it applies to American citizens on American soil.
The ACLU notes:
Don’t be confused by anyone claiming that the indefinite detention legislation does not apply to American citizens. It does. There is an exemption for American citizens from the mandatory detention requirement (section 1032 of the bill), but no exemption for American citizens from the authorization to use the military to indefinitely detain people without charge or trial (section 1031 of the bill). So, the result is that, under the bill, the military has the power to indefinitely imprison American citizens, but it does not have to use its power unless ordered to do so.Another sponsor of the bill – Senator Levin – has also repeatedly said that the bill applies to American citizens on American soil, citing the Supreme Court case of Hamdi which ruled that American citizens can be treated as enemy combatants:
But you don’t have to believe us. Instead, read what one of the bill’s sponsors, Sen. Lindsey Graham said about it on the Senate floor: “1031, the statement of authority to detain, does apply to American citizens and it designates the world as the battlefield, including the homeland.”
“The Supreme Court has recently ruled there is no bar to the United States holding one of its own citizens as an enemy combatant,” said Levin. “This is the Supreme Court speaking.“Levin again stressed recently that the bill applies to American citizens, and said that it was president Obama who requested that it do so: [VIDEO NOT FOUND]
http://www.youtube.com/watch?feature=player_embedded&v=aUHh1iqe43w
U.S. Congressman Justin Amash states in a letter to Congress:
The Senate’s [bill] does not even distinguish between American citizens and non-citizens, or between persons caught domestically and abroad. The President’s power, in his discretion, to detain persons he determines have supported associated forces applies just as strongly to Americans seized on U.S. soil as it does to foreigners captured on a far away battlefield.
Two retired 4-star generals (Charles C. Krulak and Joseph P. Hoar) write in the New York Times:
One provision [in the bill] would authorize the military to indefinitely detain without charge people suspected of involvement with terrorism, including United States citizens apprehended on American soil. Due process would be a thing of the past.
Colonel Lawrence Wilkerson – General Colin Powell’s chief of staff – says that the bill is a big step towards tyranny at home. Congressman Ron Paul says that it will establish martial law in America.
Indeed, Amash accuses lawmakers of attempting to intentionally mislead the American people by writing a bill which appears at first glance to exclude U.S. citizens, when it actually includes us: Pres. Obama and many Members of Congress believe the President ALREADY has the authority the bill grants him. Legally, of course, he does not. This language was inserted to keep proponents and opponents of the bill appeased, while permitting the President to assert that the improper power he has claimed all along is now in statute.Update: Constitutional law expert Jonathan Turley writes:
***
They will say that American citizens are specifically exempted under the following language in Sec. 1032: “The requirement to detain a person in military custody under this section does not extend to citizens of the United States.” Don’t be fooled. All this says is that the President is not REQUIRED to indefinitely detain American citizens without charge or trial. It still PERMITS him to do so.
Americans will now be subject to indefinite detention without trial in federal courts in a measure supported by both Democrats and Republicans. It is a curious way to celebrate the 220th anniversary of the Bill of Rights.And see this.
***
The White House is saying that changes to the law made it unnecessary to veto the legislation. That spin is facially ridiculous. The changes were the inclusion of some meaningless rhetoric after key amendments protecting citizens were defeated. The provision merely states that nothing in the provisions could be construed to alter Americans’ legal rights. Since the Senate clearly views citizens are not just subject to indefinite detention but even execution without a trial, the change offers nothing but rhetoric to hide the harsh reality. The Administration and Democratic members are in full spin — using language designed to obscure the authority given to the military. The exemption for American citizens from the mandatory detention requirement (section 1032) is the screening language for the next section, 1031, which offers no exemption for American citizens from the authorization to use the military to indefinitely detain people without charge or trial.
Thursday, Dec 15, 2011 11:31 AM EET
Obama to sign indefinite detention bill into law
VIDEO
President Barack Obama speaks to troops at Fort Bragg, N.C.,
Wednesday, Dec. 14, 2011. (Credit: AP Photo/Carolyn Kaster)
In one of the least surprising developments imaginable, President Obama – after spending months threatening to veto the Levin/McCain detention bill – yesterday announced that he would instead sign it into law (this is the same individual, of course, who unequivocally vowed when seeking the Democratic nomination to support a filibuster of “any bill that includes retroactive immunity for telecom[s],” only to turn around – once he had the nomination secure — and not only vote against such a filibuster, but to vote in favor of the underlying bill itself, so this is perfectly consistent with his past conduct). As a result, the final version of the Levin/McCain bill will be enshrined as law this week as part of the the 2012 National Defense Authorization Act (NDAA). I wrote about the primary provisions and implications of this bill last week, and won’t repeat those points here.
The ACLU said last night that the bill contains “harmful provisions that some legislators have said could authorize the U.S. military to pick up and imprison without charge or trial civilians, including American citizens, anywhere in the world” and added: “if President Obama signs this bill, it will damage his legacy.” Human Rights Watch said that Obama’s decision “does enormous damage to the rule of law both in the US and abroad” and that “President Obama will go down in history as the president who enshrined indefinite detention without trial in US law.”
Both groups pointed out that this is the first time indefinite detention has been enshrined in law since the McCarthy era of the 1950s, when — as the ACLU put it — “President Truman had the courage to veto” the Internal Security Act of 1950 on the ground that it “would make a mockery of our Bill of Rights” and then watched Congress override the veto. That Act authorized the imprisonment of Communists and other “subversives” without the necessity of full trials or due process (many of the most egregious provisions of that bill were repealed by the 1971 Non-Detention Act, and are now being rejuvenated by these War on Terror policies of indefinite detention). President Obama, needless to say, is not Harry Truman. He’s not even the Candidate Obama of 2008 who repeatedly insisted that due process and security were not mutually exclusive and who condemned indefinite detention as “black hole” injustice.
There have been several persistent myths circulating about this bill and President Obama’s position on it that need to be clarified once and for all:
First, while the powers this bill enshrines are indeed radical and dangerous, most of them already exist. That’s because first the Bush administration and now the Obama administration have aggressively argued that the original 2001 AUMF already empowers them to imprison people without charges, use force against even U.S. citizens without due process (Anwar Awlaki), and target not only members of Al Qaeda and the Taliban (as the law states) but also anyone who “substantially supports” those groups and/or “associated forces” (whatever those terms mean). That’s why this bill states that it does not intend to change the 2001 AUMF (even as it codifies far broader language defining the scope of the war) or the detention powers of the President, and it’s why they purposely made the bill vague on whether it expressly authorizes military detention of U.S. citizens on U.S. soil: it’s because the bill’s proponents and the White House both believe that the President already possesses these broadened powers with or without this bill. With a couple of exceptions, this bill just “clarifies” — and codifies — the powers President Obama has already claimed, seized and exercised.
I’m embedding the video below of the segment I did last night on Cenk Uygur’s TV program where I elaborated on this point: this is not to mitigate how heinous this bill is, as there are real dangers to codifying these powers in law with bipartisan Congressional support as opposed to having the President unilaterally seize them and have some lower courts recognize them. Instead, it’s a reflection of how horrible the civil liberties status quo has become under the Bush and Obama administrations. This is the reason why civil libertarians have been so harshly critical of this President. It’s the reason civil liberties groups have been saying things like this even when saying them was so unpopular: it’s because Obama has, for three years now, been defending and entrenching exactly the detention powers this law vests, but doing it through radical legal theories, warped interpretations of the 2001 AUMF, continuities with the Bush/Cheney template, and devotion to Endless War and the civil liberties assaults it entails. See the newspaper excerpts below for more proof of this.
Second, as I documented at length last week, Obama’s veto threat was never about substantive objections to the detention powers vested by this bill; put another way, he was never objecting to the bill on civil liberties grounds. Obama, as I documented last week and again below, is not an opponent of indefinite detention; he’s a vigorous proponent of it, as evidenced by his continuous, multi-faceted embrace of that policy.
Obama’s objections to this bill had nothing to do with civil liberties, due process or the Constitution. It had everything to do with Executive power. The White House’s complaint was that Congress had no business tying the hands of the President when deciding who should go into military detention, who should be denied a trial, which agencies should interrogate suspects (the FBI or the CIA). Such decisions, insisted the White House, are for the President, not Congress, to make. In other words, his veto threat was not grounded in the premise that indefinite military detention is wrong; it was grounded in the premise that it should be the President who decides who goes into military detention and why, not Congress.
Even the one substantive objection the White House expressed to the bill — mandatory military detention for accused American Terrorists captured on U.S. soil — was about Executive power, not due process or core liberties. The proof of that — the definitive, conclusive proof — is that Sen. Carl Levin has several times disclosed that it was the White House which demanded removal of a provision in his original draft that would have exempted U.S. citizens from military detention (see the clip of Levin explaining this in the video below). In other words, this was an example of the White House demanding greater detention powers in the bill by insisting on the removal of one of its few constraints (the prohibition on military detention for Americans captured on U.S. soil). That’s because the White House’s North Star on this bill — as they repeatedly made clear — was Presidential discretion: they were going to veto the bill if it contained any limits on the President’s detention powers, regardless of whether those limits forced him to put people in military prison or barred him from doing so.
Any doubt that this was the White House’s only concern with the bill is now dispelled by virtue of the President’s willingness to sign it after certain changes were made in Conference between the House and Senate. Those changes were almost entirely about removing the parts of the bill that constrained his power, and had nothing to do with improving the bill from a civil liberties perspective. Once the sole concern of the White House was addressed — eliminating limits on the President’s power — they were happy to sign the bill even though (rather: because) none of the civil liberties assaults were fixed. As Mother Jones‘ Adam Serwer explained:
This morning I wrote that by making the mandatory military detention provisions mandatory in name only, the Senate had offered the administration an opportunity to see how seriously it takes its own rhetoric on civil liberties. The administration had said that the military detention provisions of an earlier version of the NDAA were “inconsistent with the fundamental American principle that our military does not patrol our streets.”That’s because, as Serwer explained in a separate post, Congress — in response to the veto threat — made changes “addressing the security concerns, but not the ones related to civil liberties and the rule of law” (by “security concerns,” the White House means: don’t restrict what the President can do). That the White House cared only about the former (presidential discretion), and not at all about the letter (civil liberties), is proven by its willingness to sign the bill when only objections to the former have been addressed. For more proof on this point — and the perfect encapsulation of it — see this comment here.
The revised NDAA is still inconsistent with that fundamental American principle. But the administration has decided that fundamental American principles aren’t actually worth vetoing the bill over.
Third, the most persistent and propagandistic set of myths about President Obama on detention issues is that he tried to end indefinite detention by closing Guantanamo, but was blocked by Congress from doing so. It is true that Congress blocked the closing of Guantanamo, and again in this bill, Congress is imposing virtually insurmountable restrictions on the transfer of detainees out of that camp, including for detainees who have long ago been cleared for release (restrictions that Obama is now going to sign into law). But — and this is not a hard point to understand — while Obama intended to close Guantanamo, he always planned — long before Congress acted — to preserve Guantanamo’s core injustice: indefinite detention.
I need to say that again: long before, and fully independent of, anything Congress did, President Obama made clear that he was going to preserve the indefinite detention system at Guantanamo even once he closed the camp. That’s what makes the apologias over Obama and GITMO so misleading: the controversy over Guantanamo was not that about its locale — that it was based in the Caribbean Sea — so that simply closing it and then re-locating it to a different venue would address the problem. The controversy over Guantanamo was that it was a prison camp where people were put in cages indefinitely, for decades or life, without being charged with any crime. And that policy is one that President Obama whole-heartedly embraced from the start.
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ACLU
President Obama Signs Indefinite Detention Bill Into Law
CONTACT: media@dcaclu.org
WASHINGTON – President Obama signed the National Defense Authorization Act (NDAA) into law today. The statute contains a sweeping worldwide indefinite detention provision. While President Obama issued a signing statement saying he had “serious reservations” about the provisions, the statement only applies to how his administration would use the authorities granted by the NDAA, and would not affect how the law is interpreted by subsequent administrations. The White House had threatened to veto an earlier version of the NDAA, but reversed course shortly before Congress voted on the final bill.
“President Obama's action today is a blight on his legacy because he will forever be known as the president who signed indefinite detention without charge or trial into law,” said Anthony D. Romero, ACLU executive director. “The statute is particularly dangerous because it has no temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield. The ACLU will fight worldwide detention authority wherever we can, be it in court, in Congress, or internationally.”
Under the Bush administration, similar claims of worldwide detention authority were used to hold even a U.S. citizen detained on U.S. soil in military custody, and many in Congress now assert that the NDAA should be used in the same way again. The ACLU believes that any military detention of American citizens or others within the United States is unconstitutional and illegal, including under the NDAA. In addition, the breadth of the NDAA’s detention authority violates international law because it is not limited to people captured in the context of an actual armed conflict as required by the laws of war.
“We are incredibly disappointed that President Obama signed this new law even though his administration had already claimed overly broad detention authority in court,” said Romero. “Any hope that the Obama administration would roll back the constitutional excesses of George Bush in the war on terror was extinguished today. Thankfully, we have three branches of government, and the final word belongs to the Supreme Court, which has yet to rule on the scope of detention authority. But Congress and the president also have a role to play in cleaning up the mess they have created because no American citizen or anyone else should live in fear of this or any future president misusing the NDAA’s detention authority.”
The bill also contains provisions making it difficult to transfer suspects out of military detention, which prompted FBI Director Robert Mueller to testify that it could jeopardize criminal investigations. It also restricts the transfers of cleared detainees from the detention facility at Guantanamo Bay to foreign countries for resettlement or repatriation, making it more difficult to close Guantanamo, as President Obama pledged to do in one of his first acts in office.
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Indefinite Detention, Endless Worldwide War and the 2012 National Defense Authorization Act
February 22, 2012
On December 31,
2011, President Obama signed the National Defense Authorization Act
(NDAA), codifying indefinite military detention without charge or trial
into law for the first time in American history. The NDAA’s dangerous
detention provisions would authorize the president — and all future
presidents — to order the military to pick up and indefinitely imprison
people captured anywhere in the world, far from any battlefield. Although President Obama issued a signing statement saying he had “serious reservations” about the NDAA’s detention provisions, the statement only applies to how his administration would use them, and would not affect how the law is interpreted by subsequent administrations. The provisions – which were negotiated by a small group of members of Congress, in secret, and without proper congressional review – are inconsistent with fundamental American values.
Both Congress and the president need to clean up the mess they have created. No one should live in fear of this or any future president misusing the NDAA’s detention authority. The NDAA’s detention provisions must be repealed.
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