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Obama Codifies the Power of Indefinite Detention

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President Barack ObamaIt is now codified in law that a president of the United States has the option of holding American citizens indefinitely without charge and trial. President Barack Obama, the former University of Chicago Law School professor of constitutional law who ran for office promising, unlike his predecessor, to protect civil liberties, had hinted that he might veto the National Defense Authorization Act, which contains this detention provision and which was sponsored by Sens. John McCain and Carl Levin. But in the end he signed it. Thus Obama has furnished one more example that no matter which party’s presidential candidate wins, the permanent regime stays in place.

George W. Bush and Obama both claimed that the 2001 Authorization for the Use of Military Force (AUMF) empowered them to turn people suspected of association with al-Qaeda or related organizations over to the military without charge for the duration of the hostilities. It didn’t matter whether the suspect was a foreigner, a U.S. citizen, or a legal resident. It also didn’t matter whether the alleged offense was committed inside or outside the United States. The battlefield encompasses the whole world. The suspect could be thrown into a military prison and held effectively forever. Why forever? Because the “war on terror” itself could last forever.

In interpreting the AUMF that way, both administrations went well beyond its language. On its face, the AUMF only authorizes “the President … to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

Clearly the power is restricted to people involved in 9/11 and those who protected them. Yet under novel theories of the executive branch’s constitutional authority, it was turned into a virtual blank check. As Glenn Greenwald points out,

That’s how the Obama administration justifies its ongoing bombing of Yemen and Somalia and its killing of people based on the claim that they support groups that did not even exist at the time of 9/11 — i.e., they argue: these new post–9/11 groups we’re targeting are “associated forces” of Al Qae-da and the individuals we’re killing “substantially support” those groups. [Emphasis in original.]

The AUMF also makes no reference to indefinite detention or to turning citizens and legal residents over to the military, rather than civilian law enforcement, when they are suspected of being involved in a vague class of activities such as “supporting” “associated forces” in the commission of belligerent acts.

Regardless of the absence of the relevant language, both the Bush and Obama administrations claimed those broad powers that make a mockery of the U.S. Constitution, and of the Bill of Rights’ Fifth Amendment in particular. Most conservatives applauded when Bush asserted that authority, and now most Progressives applaud (or remain eerily silent about) Obama’s assertion of power, though they accused Bush of being like Hitler when he was in power.

Now those powers are formally set down on paper. Ironically, the Obama administration hinted it would veto the bill because it introduced restrictions on its authority. Carrying on the Bush philosophy that under the Constitution, the executive branch has virtually unlimited power, Obama objected to any congressional intrusion into its prerogatives even if only to codify authority already claimed and exercised.

For example, section 1021 requires the executive branch to turn over to the military a person suspected of terrorism who “was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of any such enemy forces.”

Note that that would include persons resisting American occupation of Afghanistan or the bombing in Sudan or Somalia. It could also include someone who innocently gave money to a charity not knowing it had some connection to an “associated” organization.

The Obama administration did not like being required to turn such persons over to the military. It prefers instead to have that as an option. In the end, the administration was granted the power to use civilian courts, but only after filing a waiver with Congress. The section goes on to say that included within the military’s authority is “detention under the law of war without trial until the end of hostilities authorized by the Authorization for the Use of Military Force.” That is, indefinite detention, which Obama said he favored in his speech at the National Archives in 2009.

It is important to note that Section 1021 specifically excludes American citizens: “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.” But as Greenwald points out, that implies that Americans captured or arrested outside the United States are subject to mandatory military custody under the provision.

The next section, 1022, does apply to American citizens and other legal residents. Although it explicitly says that the administration is not required to turn them over to the military, it may do so if it wishes. That leaves in place a power both Bush and Obama claimed. You’ll recall that Jose Padilla, an American citizen arrested in the United States, was first held by the military, an authority affirmed by an appellate court. He was transferred to the civilian courts only when his case was headed to the Supreme Court. Obama wanted the discretion the appellate court had given him preserved.

Living under empire

Efforts by Sens. Mark Udall and Rand Paul to delete that provision failed by large margins. (Paul also tried, unsuccessfully, to have the AUMF repealed.) Let’s appreciate how broad the provision is. One of its defenders, Sen. Lindsey Graham,  said, “The statement of authority to detain does apply to American citizens and it designates the world as the battlefield, including the homeland.” That means that an American citizen or noncitizen resident on U.S. soil who is merely suspected of giving support to an organization suspected of being associated with al-Qaeda or the Taliban may be turned over the military and held indefinitely without charge or trial. That shouldn’t be terribly surprising. After all, Obama already claims the authority to kill Americans without due process. Indefinite detention is of course a lesser penalty than execution.

McCain and Levin responded to their critics strangely: “The administration has broad authority to decide who is covered by this provision and how and when such a decision is made.”

Are we to be comforted by unchecked presidential discretion? As I recall, the American Revolution had something to do with an objection to arbitrary executive power.

No wonder Andrew Napolitano said, “Essentially this legislation would enable the president to divert from the criminal justice system, and thus to divert from the protections of the Constitution, any person he pleases.”

When the provision was being debated the White House issued a statement that included this hopeful passage: “[Applying] this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets.”

In retrospect it’s clear that what Obama objected to was not the authority itself but the requirement that he exercise it in every case. How dare the legislative branch tell the executive branch what it must do!

That Obama signed the NDAA (which contains other objectionable provisions) tells us exactly where he stands on the Bill of Rights and the American empire — as if we didn’t already know. Even that imperial cheerleader the New York Times criticized the “complete political cave-in.”

As Human Rights Watch put it, “President Obama will go down in history as the president who enshrined indefinite detention without trial in US law.” The late Chalmers Johnson, the scholar who did so much to expose America’s world domination, liked to say that you either abolish empire or live under it. Is there any doubt he was right?

Sheldon Richman is senior fellow at The Future of Freedom Foundation, author of Tethered Citizens: Time to Repeal the Welfare State, and editor of The Freeman magazine.


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