War on Terror

'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."

NEXT: Nick Gillespie on Redeye W Greg Gutfeld Talking TSA, OWS, & More

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Jacob…doing alt-text? What next, banning of griefers?

  2. For all you Team Blue cheerleaders who thought Bush was good at shitting on civil liberties…

    1. To be fair the NDAA is a bipartisan law.

      1. True, and I’ve pointed out several times how the Teams conspire to shit on our civil liberties.

  3. When the law states that everything is at the discretion of the President, then everything he does is working within the rule of law. That’s convenient.

    1. Didn’t some other president get widely shat on for suggesting that executive power made the Executive’s actions automatically legal?

      1. I have no idea whom you’re talking about.

  4. Other than people committed to sucking Team Blue cock in any and all circumstances, I doubt there are many folks who still believe that Obama was opposed to our emerging police state.

    It always comes down to one side believing it can make things right by putting Top Men in place.

    1. people committed to sucking Team Blue cock in any and all circumstances

      “PRESENT!!!”

    2. There were a surprising number of people who latched onto Obama’s veto threat without bothering to actually read it and see that what he really cared about was Congress restricting the power of the Executive.

      1. Well, wishful thinking is really surprising.

  5. Long as it’s just right-wingers getting rounded up and sent to Gitmo, I’m cool with it.

  6. I’ve disagreed with almost everything Obama has done since taking office, but this is the first time I’ve thought he’s an evil fucking thug.

    1. Don’t forget to blame the house and the senate as well. A pox on all their houses.

      1. Yeah, but I was already fairly sure they were evil fucking thugs. I’ve always thought about Obama that he’s basically a good guy who happens to be wrong about everything. Apparently not.

        1. Don’t feel bad. A lot of libertarians make that mistake. I call it the ‘good-guy fallacy.’

          Hint: Rachel Maddow,Keith Olbermann, Jon Stewart,and Michael Moore are no better than Bill o’reilly, Glenn Beck, Ann coulter, and Sean Hannity.

          1. See, Jon Stewart and Glenn Beck strike me as being good guys (and wrong about nearly everything). The rest are scum.

          2. Jon Stewart is marginally better than the rest.

            1. How so? I find Stewart to be the most intellectually dishonest. He puts forward his opinion and then, once criticized, claims that he’s a comedian.

              1. Yeah, his “I’m a comedian” defense is nonsense. I guess I just find him to be a little more honest and less of a partisan brown nose than others. He seems willing to criticize Democrats and he certainly has been nicer to Ron Paul than any other media persona with as large an audience.

              2. This is probably just because of the vagueness of in the definition of the word “good guy”. Being funny does make a guy more likeable – and I’m not sure it’s intellectual dishonesty when he hides behind his comedianship so much as an awe-shucks acknowledgement that he’s not a particularly sophisticated intellect.

                1. *shrug*

                  Evil that seems like a good guy is worse than obvious evil.

        2. He’s president. (almost) Nobody get this position being a good guy.

        3. “I’ve always thought about Obama that he’s basically a good guy”

          How much time have you spent with him?

  7. Within 10 yeas, a US Citizen will be detained on US soil under this provision.

    The really depressing part is that the majority of the public will see this as a “good thing”. Of course, this assumes that the detention isn’t deemed “classified” and a restraining order is placed on anyone who would talk about it.

    1. Within 10 yeas, a US Citizen will be detained on US soil under this provision.

      US citizens have already been detained without it, as Jacob points out. NDAA merely normalizes something that would’ve been considered radical a few years ago, and sets the stage for the next power grab.

      1. Bush claimed the power to eavesdrop on Americans without a warrant. Obama claimed the power to kill Americans on foreign soil without due process. The next logical step is for the president to claim the power to kill Americans on domestic soil without due process.

    2. This law was very specifically passed because the government doesn’t want to put Nidal Malik Hasan, the perpetrator of the Fort Hood Massacre, on trial.

      He is going to be held in military detention for the rest of his life.

      1. That is a very interesting angle on this. I hadn’t thought of that. I can tell you from my own knowledge of the Army that the Army is terrified of putting Husain on trial. His whole case is a joke that exposes the complete PC hypocrisy and incompetence of the Army. His trial will embarrass a lot of really important people and put lie to a lot of PC bullshit.

        1. In addition to the mere embarrassment, the government is potentially on the hook for many, many millions of dollars here.

          A couple of months ago, the families of the victims initiated the formal process that would eventually allow them to file a civil suit against the government.

          Needless to say, the government simply cannot afford to ever have the details of their staggering incompetence regarding Hasan ever come out under oath in open trial. If it did, the government would most likely end up having to pay out the biggest civil judgment in our history.

          1. Husain’s defense writes itself. I could defend him with my eyes closed. I say my client was mentally unstable. And the Army knew it. But they wouldn’t do anything to help my client because of their PC bullshit. So here is my client, mentally breaking down, a muslim whom the Army won’t help and worse still expects to counsel soldiers everyday about their problems associated with killing Muslims. So finally, after months of torment, my client snapped.

            That is not enough for an acquittal. But it is enough to embarrass the hell out of the Army and probably keep him off of death row.

      2. Oh, you mean when Malik got upset, resulting in a “workplace violence incident”?

        /snark

      3. You say that like it’s a good thing someone isn’t getting due process of any kind.

        1. If there is one person on earth who should be summarily shot, it is Hussain.

        2. Sounded to me, John would love to see him on trial so the PC bullshit that has infected the army going back as far as when Colin Powell was handed the job of concealing the morale problem in Korea in the mid-70’s finally gets a good public airing.

          1. Yes. I was being factious above. He deserves to be hung. But I would love to see him go on trial and the Army have to answer for the bullshit that allowed this to happen.

      4. Why? That wasn’t terrorism or something: It was work place violence.

  8. Cons should love this since “Law and Order” and “Rule of Law” are their favorite catchphrases when a government thug (aka cop) is caught abusing people.

    With that aside whats it going to take to wake people up that the US government is thug who attempts to hurt you no matter if its under con or lib control.

  9. With Obama like this, who needs Gingrich or Romney?

  10. We are all doomed. We have all been lied to for years. The inevitable bankrupcty of this pathetic country cannot come soon enough.

    1. I dont think even default is going to help. They will still find something to deflect that on.

  11. One way ticket to the Gulag.

  12. Rule of who now?

  13. If we weren’t safe before…then we are definitely NOT safe now..This is just like the German Gestapo and the Russian KGB…now that I have said this..I’ll be waiting for them to come detain me for whatever reason they would like to fabricate.

    1. Fifty-fifty chance as to which of the Teams will be in charge when they detain you, Kat.

  14. Well, how about it, Team Blue? Are you burning up the wires to the White House right now to express your outrage? Your concern?

    Nah. You’re not feeling any of that, are you? The “unitary executive” is fine with you now, isn’t it?

    1. “Ummmmmmm… ahhhh… Banksters! Thugservatives! SQUIRREL — !!!”

  15. TO: All
    RE: I WANT TO KNOW….

    …EXACTLY WHO VOTED FOR THIS ABOMINATION!!!!

    I want to decry them by name for their violation of their oath to the Constitution of the United States.

    They are, in my honestly held and professional opinion, “ENEMIES DOMESTIC”.

    Regards,

    Chuck(le)
    P.S. The staff for Congressman Tipton (CO-3) say he voted against passing the NDAA that came out of joint committee. I’d like ot verify that report.

    1. It’s not that hard to find. The House puts their votes up here and you can see the final vote here.

      AYES NOES NV
      REPUBLICAN 190 43 8
      DEMOCRATIC 93 93 6

    2. Tipton was indeed a No.

  16. “…Obama is content to let the courts sort things out, especially since he is certain that he will never abuse whatever power he has.”

    OK, I have finished laughing hysterically and caught my breath. Thanks for that.

    1. TO: John Thacker
      RE: Congressman Tipton (CO-3) Vote

      Thanks for confirming that.

      Off to that web-site.

      I can’t understand how 190 Republicans would vote FOR this POS legislation…..

  17. TO: All
    RE: Looking at This….

    ….I have some questions to provide insight.

    ? Do we REALLY think there are THAT MANY al Qaeda operatives amongst US that the ARMY is going to have to take up the slack where the local law enforcement agencies can’t handle the load?

    ? If the answer to the above question is ‘no’?and I believe it is?just WHO does the federal government think provides such numbers of ‘terrorists’ that the ARMY has to handle the load?

    ? Does THIS look like Bill ‘I Bombed the Pentagon’ Ayers’ dream to round up and haul off the 25 million Americans he projected would have to be ‘liquidated’, come true?

    ? What better way to deny people the ability to vote in the 2012 General Election than to declare them ‘terrorists’ and haul them away for an indefinite period of time?

    ? Will the military REALLY do that sort of thing?

    Regards,

    Chuck(le)
    [Gird up your loins…..]

    1. P.S. Look for a Reichstag Fire incident as the trigger for the ’round-up’….

    2. P.S. Look for a Reichstag Fire incident as the trigger for the ’round-up’….

  18. Like Congress, which has shamefully evaded its legislative responsibilities by deliberately maintaining ambiguity about the president’s detention authority ..

    That’s a big change from the claims that this Act gives the President the authority to detain any American indefinitely without trial. Now the Act is merely “maintaining ambiguity” which supposedly already exists.

  19. TO: M
    RE: Heh

    The problem is that with this ‘ambiguity’, the law can be interpreted any way an administration wishes. And then they’ll ‘shop’ a federal judge to approve their interpretation.

    In the meantime, i.e., over the course of the 2012 election, Americans languish in ‘detention’, unable to vote.

    Regards,

    Chuck(le)
    [Bad law is more likely to be suplemented than repealed.]

  20. Putting “terrorists” on trial would be a security concern is a strawman. They just want to have legal immunity for depriving citizens of their constitutional guarantee of due process and the right to counsel.

    Why even have a Constitution at all if the government can abrogate it willy nilly whenever it feels like it?

    Face it, the Federal Government is illegitimate, has acted illegally, usurped authority that it was never granted, and is oppressive of the rights of citizens. It is a perfect example of the conditions under which the Founders prescribed Revolution and a total Do-Over.

Please to post comments

Comments are closed.