Obama and NDAA: Chipping away at the Constitution – HRW

 Press release from Human Rights Watch:
Wednesday, December 14, 2011
Human Rights Watch
For Immediate Release

US: Refusal to Veto Detainee Bill A Historic Tragedy for Rights
President Decides to Sign Ill-Conceived National Defense Authorization Act
(Washington, DC, December 14, 2011) – US President Barack Obama’s apparent decision to not veto a defense spending bill that codifies indefinite detention without trial into US law and expands the military’s role in holding terrorism suspects does enormous damage to the rule of law both in the US and abroad, Human Rights Watch said today. The Obama administration had threatened to veto the bill, the 2012 National Defense Authorization Act (NDAA), over detainee provisions, but on December 14, 2011, it issued a statement indicating the president would likely sign the legislation.
“By signing this defense spending bill, President Obama will go down in history as the president who enshrined indefinite detention without trial in US law,” said Kenneth Roth, executive director of Human Rights Watch. “In the past, Obama has lauded the importance of being on the right side of history, but today he is definitely on the wrong side.”
The far-reaching detainee provisions would codify indefinite detention without trial into US law for the first time since the McCarthy era when Congress in 1950 overrode the veto of then-President Harry Truman and passed the Internal Security Act. The bill would also bar the transfer of detainees currently held at Guantanamo into the US for any reason, including for trial. In addition, it would extend restrictions, imposed last year, on the transfer of detainees from Guantanamo to home or third countries – even those cleared for release by the administration.
There are currently 171 detainees at Guantanamo, many of whom have been imprisoned for nearly 10 years. As one of his first acts in office, Obama signed an executive order for the closure of Guantanamo within one year. Instead of moving quickly to close the prison and end the use of the discredited military commissions, he supported modifications to the Military Commissions Act.
“It is a sad moment when a president who has prided himself on his knowledge of and belief in constitutional principles succumbs to the politics of the moment to sign a bill that poses so great a threat to basic constitutional rights,” Roth said.
The bill also requires the US military take custody of certain terrorism suspects even inside the United States, cases that previously have been handled by federal, state and local law enforcement authorities. During debate over the bill, several senior administration officials, including the secretary of defense, attorney general, director of national intelligence, director of the FBI, and director of the CIA, all raised objections that this provision interfered with the administration’s ability to effectively fight terrorism. In the last 10 years over 400 people have been prosecuted in US federal courts for terrorism related offenses. Meanwhile during that same period, only six cases have been prosecuted in the military commissions.
“President Obama cannot even justify this serious threat to basic rights on the basis of security,” Roth said. “The law replaces an effective system of civilian-court prosecutions with a system that has generated the kind of global outrage that would delight recruiters of terrorists.”

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9 Responses

  1. To my surprise this bill passed the Senate by something like 93-7. One of its backers was Carl Levin, a Senator I have met and admire for the most part, who said all it did was affirm what the Supreme Court already decided in Hamdi v. Rumsfeld, that US citizens could be detained indefinitely without trial as enemy combatants. This article however says that it goes much farther than that- link to motherjones.com

    • I attempted to post my experience in 6th circuit federal court in early 2000s. I was asked if my son was going to join the Taliban, after the case brought was toss and the Federal Judges at the appeals court mocked Detroit Federal Judge Boreman.

      This is not a surprise, it is systemic and measured. I grieve because there so few honest people found in our country. Our courts were quite corrupted before the bill and anything needed could and would be rammed through the courts systems.

  2. Hamdi vs Rumsfeld was one of the most egregious cases of false conviction. The situation now seems to have no reality, as the old anticommunist rants had some merit, but the pretence that “terror” is somehow an existential threat to the USA is lunacy. Rights fought for over centuries have vanished.

  3. HRW gets an important point wrong. The section referred to here:

    The bill also requires the US military take custody of certain terrorism suspects even inside the United States, cases that previously have been handled by federal, state and local law enforcement authorities.

    was removed by the House-Senate conference committee today. This was the section over which Obama threatened his veto, and its removal is why he said he’ll sign it.

    What’s left is language authorizing military detention (but not of United States persons in the US) but not requiring it, which is in accordance with current law. There’s even a section that stipulates that the bill doesn’t change current law in this area.

    So, Obama continues to have the authority to hold terrorism suspects in military detention (although he’s never used this power and doesn’t support doing so). This could become a problem under a future president, however, who doesn’t agree with Obama about how to handle such suspects.

    All of this is contingent on the 2001 AUMF. What we need is for Obama to declare that war over before he leaves office, so that these powers aren’t left lying around for the next president.

  4. I think you’re missing the forest for the trees here, professor.

    Ever since Obama came into office, he and Congress have been at loggerheads over how to handle terror detainees. Congress wants them to be put into military custody, while Obama, Holder, and the rest of the administration want them tried and held in the federal criminal justice system. Congress has been trying to make the administration cave, and they’ve refused. Not a single person has been put into military custody under Obama.

    Obama tried to move Gitmo detainees into the federal prisons, and try them in federal court, and Congress passed legislation forbidding the administration from doing so. Obama and Holder fought the good fight in a very public manner (remember the effort to try Khalid Sheik Mohammed in New York?), and they got their butts kicked.

    Now, Congress tried to tie the administration’s hands by including language that would have forced the administration to put terror suspects into military custody, and Obama refused, issuing a veto threat and making them back down. Going forward, he will be able to do what he has been doing all along – using the real courts and the real prison system to try and imprison terrorists.

    Because of the stance Obama took, the next guy who tries to blow up a plane with his underpants will be handled just like the last guy – arrested by the FBI, tried in federal court, and sentenced to a term in the federal penitentiary. The reason this is so – the reason he won’t be shipped off to a military brig – is because of the stance the administration took on this bill.

    • Yeah but how will President Gingrich use the language in this law? Obama has to protect civil liberties *after* he is out of office as well. Time and again he has folded rather than risk a messy confrontation

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