Yesterday, the President signed the National Defense Authorization Act of 2012, a law that allows the president and the military to detain American citizens indefinitely without trial and allows them to transfer custody to “foreign entities” if they are accused of “substantially” providing aid to al Queda or “associated groups.”
The signature was accompanied by this signing statement (an obviously unconstitutional practice which allows the president to reinterpret the law). In many ways, the signing statement is worse than the actual law itself. Furthermore, rather than using this opportunity to condemn the dissolution of Habeas Corpus, he laments that the congress has chosen to proceed with implementing any restrictions on his power at all.
“[S]ome in Congress continue to insist upon restricting the options available to our counterterrorism professionals and interfering with the very operations that have kept us safe. My Administration has consistently opposed such measures.”
Furthermore, the statement notes that his administration reserves the right to determine whether or not any detainee will be given the opportunity of judicial review, in explicit defiance of the law which requires it. He says:
“[M]y Administration will interpret section 1024 as granting the Secretary of Defense broad discretion to determine what detainee status determinations in Afghanistan are subject to the requirements of this section…
Section 1024 does not give the administration the authority to decide whether or not a detainee has a trial or not. It requires every detainee be given a judicial review. (Read Section 1024 here.) The president has simply decided to ignore this and “interpret” the law as if it gives the Secretary of Defense the option to wave the judicial review. It continues:
“I have signed this bill on the understanding that section 1022 provides the executive branch with broad authority to determine how best to implement it, and with the full and unencumbered ability to waive any military custody requirement, including the option of waiving appropriate categories of cases when doing so is in the national security interests of the United States.”
Others have noted that the law requires that the military provide judicial review of all detainees, the President reserves the power to make an exception! The few positive elements of this bill which have blunted some criticism of the law has been discarded. Amazing.
The president does note that he will not use this power to detain American citizens:
“I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.”
UPDATE 1/3/12: This is truly stunning since it was the President himself which explicitly requested that a provision exempting American citizens from indefinite detention be removed! The president wants this power.
In addition, there’s quite a lot to note about the president’s seemingly simple sentence. First, that he even has to say this should be an indication that he feels he does have that authority should he change his mind and decide to use it. We have said in previous articles that as the law is written to support existing law, which one could easily argue already gives the president this authority since we are and have been in a state of National Emergency since 9-11.
Second, this president has already found it convenient to assassinate American citizens living abroad. The administration has also found itself justified in pushing for life imprisonment for merely conspiring to commit an illegal act. For example, Ahmed Ghailani was acquitted of 280 charges, but convicted of one count of conspiracy. The administration pushed for and received a sentence of life imprisonment for what is a man only tangentially involved in a plot and who essentially never committed a crime. Are we to believe this is an administration which believes in restraint?
Finally, while the administration insist that it will not use this power on US citizens, it does not tie the hands of future administrations who will use this authority which has been our primary concern since this issue surfaced. That is the crux of the matter. Everyone and their grandma senses things are degenerating much faster now than in previous years. Even people only casually interested in politics understands the problems are becoming more serious and more urgent. It is not scaremongering to see NDAA and other manifestations of the security and surveillance state as serious threats to freedom in the near term.
