President Obama is expected to sign a military defense bill perhaps as early as today, Friday, December 16, which gives him and future presidents unprecedented power to seize American citizens and others suspected of terrorism on U.S. soil and hold them in military detention indefinitely without charge or trial.
Obama had previously promised to veto the National Defense Authorization Act for 2012 (NDAA) because he objected to the military custody provision of the bill. “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,” the administration said in a statement November 17. He repeated his promise to veto the bill as recently as December 9.
But at a press briefing December 15, White House Press Secretary Jay Carney said that the administration’s concerns about the bill had been assuaged by changes made in a conference committee. “Well, let me make clear that this was not the preferred approach of this administration, and we made clear that any bill that challenges or constrains the President’s critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the nation would prompt the President’s senior advisors to recommend a veto,” Carney said. “After intensive engagement by senior administration officials, the administration has succeeded in prompting the authors of the detainee provisions to make several important changes, including the removal of problematic provisions.”
The problematic provision has not been removed, however. Carney said that the provision “does not increase or otherwise change any of our authorities in regard to detention of American citizens. It is simply a restatement of the authorities that were granted to the President in 2001.” The authorities granted to the President in 2001 in the Authorization for Use of Military Force (AUMF), however, limited use of the military specifically against those responsible for the 9/11 attacks. The NDAA expands that authority by asserting that “the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force includes the authority for the Armed Forces of the United States to detain covered persons. . . pending disposition under the law of war.” The bill defines “covered persons” broadly and ambiguously as anyone who is “a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and (anyone found) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.”
And while the administration claimed concern over the provision allowing detention of U.S. citizens, Sen. Carl Levin (D-Mich.) in a video posted on YouTube on December 10 claimed that the Obama administration asked the U.S. Senate Armed Services Committee to remove language from the bill that would have prohibited U.S. citizens’ military detention without due process. Levin is chairman of the committee and drafted the NDAA with Sen. John McCain (R-Ariz.).
The Senate approved the final revised version of the NDAA by a vote of 86-13 on December 15, which was, ironically, Bill of Rights Day, “the 220-year anniversary of this revered document's addition to the U.S. Constitution in 1791, Anthony Gregory wrote on the Huffington Post. The NDAA contradicts the 14th Amendment’s due process requirement that says, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The 13 senators included six Democrats, six Republicans, and one Independent. They were Dick Durbin (D-Ill.), Ben Cardin (D-Md.), Al Franken (D-Minn.), Tom Harkin (D-Iowa), Jeff Merkley (D-Ore.), Ron Wyden (D-Ore.), Bernie Sanders (I-Vt.), Jim Risch (R-Idaho), Rand Paul (R-Ky.), Mike Lee (R-Utah), Jim DeMint (R-S.C.), Mike Crapo (R-Idaho) and Tom Coburn (R-Okla.). Six more senators voted against the bill in the final vote than in the first vote on December 1. The bill then went to a conference committee and back to Congress where it was approved December 14 by a vote of 283-136.
Civil liberties groups are not happy that Obama backtracked from the veto threat. "The NDAA enshrines the war paradigm that has eroded the United States' human rights record and served it so poorly over the past decade as the country's primary counterterrorism tool," said Tom Parker, policy director of Amnesty International USA. "In doing so, the NDAA provides a framework for 'normalizing' indefinite detention and making Guantanamo a permanent feature of American life," he said, referring to a restriction in the measure on closing the Cuba prison for terror suspects. "By withdrawing his threat to veto the NDAA, President Obama has abandoned yet another principled position with little or nothing to show for it. Amnesty International is appalled – but regrettably not surprised."
Parker said the legislation also creates a tangle of competing counterterrorism jurisdictions that no one in Washington seems to understand. “Law enforcement agencies have a strong record countering terrorism since the 9/11 attacks and this new legislation will inevitably hobble their efforts.