In yet another reversal of his professed commitment to the rule of law, President Barack Obama says he will sign the National Defense Authorization Act (NDAA), which formalizes his authority to imprison terrorism suspects indefinitely without charge or trial.
Where is the “progressive” outrage?
George W. Bush and Obama both claimed that the 2001 Authorization for the Use of Military Force (AUMF) empowered them to have the military hold people merely suspected of association with al-Qaida or related organizations without charge for the duration of the “war on terror.” It didn’t matter if the suspect was a foreigner, a U.S. citizen, or a legal resident. It also didn’t matter if the alleged offense was committed inside or outside the United States. The battlefield encompassed the whole world.
In interpreting the AUMF this 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 Sept. 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, this was turned into a virtual blank check.
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 merely 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 these broad powers that make a mockery of the U.S. Constitution and the Bill of Rights’ Fifth Amendment in particular.
Now these powers have been formally set down on paper. Ironically, the Obama administration hinted at a veto of 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, one section requires the executive branch to turn over to the military a person suspected of terrorism. Note that this would even include individuals resisting the 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. But the Obama administration did not like being required to do this. Rather, it prefers to have it 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.” This section, however, exempts Americans citizens captured inside the country.
The next section does apply to American citizens and other legal residents. Although it explicitly says the administration is not required to turn them over to the military, it may do so if it wishes. Obama successfully opposed a blanket prohibition in this section against the military detention of American citizens.
As one of its defenders, Sen. Lindsey Graham, said of the provision: “The statement of authority to detain does apply to American citizens and it designates the world as the battlefield, including the homeland.” This shouldn’t be surprising: Obama already claims the authority to kill Americans without due process.
Obama’s intention to sign the NDAA tells us exactly where he stands on the Bill of Rights. As Human Rights Watch put it: “President Obama will go down in history as the president who enshrined indefinite detention without trial in U.S. law.”
The late Chalmers Johnson, the scholar who did so much to chronicle America’s world domination, liked to say that you either abolish the empire or live under it. Is there any doubt he was right?
Sheldon Richman is senior fellow at The Future of Freedom Foundation (www.fff.org) and editor of The Freeman magazine.