'The Rule of Law' = Indefinite Detention Powers


The version of the National Defense Authorization Act that the House approved yesterday, which the Senate is expected to approve today, includes new language aimed at addressing President Obama's objections to the bill's detention provisions:

Nothing in this section shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person, regardless whether such covered person is held in military custody.

This assurance is Obama's rationale for dropping his veto threat. White House Press Secretary Jay Carney says Obama is now confident that the bill "does not challenge the president's ability to collect intelligence, incapacitate dangerous terrorists and protect the American people." I would call this a craven capitulation, except that Obama's main complaint about the bill has always been that it might impinge on his authority, not that it gives him too much power to lock up people he identifies as enemies of the state. But it is worth noting that the Justice Department did express legal reservations about routine military detention of terrorism suspects:

Every single suspected terrorist captured on American soil—before and after the September 11th attacks—has first been taken into custody by law enforcement, not the United States military. There have been only two cases in recent history (Jose Padilla and Ali Al-Marri) in which suspected terrorists were subsequently transferred to military custody, and both of these cases spawned extensive litigation and raised major statutory and constitutional questions in our courts concerning the legality of the government's actions. In both cases, the decision was made to return the individuals to the criminal justice system, where they were successfully prosecuted. The proposed legislation would make the exceptional and highly controversial practice of military custody the rule in many terrorism cases in the United States, with severe operational consequences.

Even here, the focus is on the inconvenience associated with constitutional challenges to a policy of imprisoning people without charge or trial, as opposed to the Fourth, Fifth, and Sixth Amendment violations themselves. But in contrast with Sen. Lindsey Graham (R-S.C.) and likeminded advocates of military detention, the Obama administration at least concedes that the powers affirmed by the NDAA raise "major statutory and constitutional questions." Like Congress, which has shamefully evaded its legislative responsibilities by deliberately maintaining ambiguity about the president's detention authority, Obama is content to let the courts sort things out, especially since he is certain that he will never abuse whatever power he has. In the same statement where the White House announced that Obama is fine with a situation where he may or may not, depending on which member of Congress you ask, have the legal authority to indefinitely detain anyone he says is linked to terrorism, Carney cited "our commitment to the rule of law."

Addendum: For those who assume a president would never turn down new powers to strip people of their liberty, the ACLU notes that "the last time Congress passed indefinite detention legislation was during the McCarthy era, and President Truman had the courage to veto that bill."