How Obama Came to Be the Biggest Defender of Indefinite Detention

And why those of us who oppose such power have been left with few channels for appeal.


President Obama

Perhaps it's all for the best that the Obama administration oversaw the scrubbing of civil liberties vows that graced the 2008 Democratic Party platform from the 2012 edition. It's one thing to promise to end practices implemented by your nefarious political opponents; it's quite another to commit to ending abuses you yourself have practiced without restraint. Under the circumstances, credibility suffers. And, on the long list of civil liberties violations that the current occupant of the White House has learned to love, indefinite detention—the practice of holding suspects without charges or trial, and with no certain end to their imprisonment—features prominently.

Allegedly horrified by the Bush administration's growing collection of due-process-deprived prisoners, the Democratic platform of 2008 promised:

We will not ship away prisoners in the dead of night to be tortured in far-off countries, or detain without trial or charge prisoners who can and should be brought to justice for their crimes, or maintain a network of secret prisons to jail people beyond the reach of the law. We will respect the time-honored principle of habeas corpus, the seven century-old right of individuals to challenge the terms of their own detention that was recently reaffirmed by our Supreme Court.

Once in office, however, President Obama continued most of the practices of his predecessor and, with the full assistance of the Republican-controlled House of Representatives and the majority-Democratic Senate, signed into law the National Defense Authorization Act for 2012, Section 1021 of which formalized the military's ability to indefinitely detain civilians with no charge or trial if they could be interpreted as "part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners." Sure, he play-acted a little hesitation in taking on so much arbitrary power, but he ultimately signed a bill that legally codified for the first time the domestic detention of civilians, sparking vows of defiance from lawmakers in states as politically disparate as Arizona, Maine, and Virginia. Responding to the passage of the NDAA by Congress and its signing by the president, ACLU Executive Director Anthony D. Romero said, "[t]he statute is particularly dangerous because it has no temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield."

Joanne Mariner, the director of Hunter College's Human Rights Program, was a bit more scathing:

When future historians inquire into how the practice of indefinite military detention without trial became formally entrenched in a country with such strong constitutional safeguards and stringent criminal justice guarantees, they will find that it did not happen all at once, but rather via a series of incremental steps.  President Obama is now responsible for three of them.

The first was to justify indefinite detention in litigation opposing the release of detainees held at Guantanamo; the second was to issue an executive order on indefinite detention, and the third was to sign the NDAA.

That the 2008 Democratic platform's concerns over detention are nowhere to be found in the current platform is no surprise. If Obama claimed to have "serious reservations" about indefinite detention when signing the NDAA, he got over them quickly (in fact, his administration had already argued, in March 2009, in favor of continuing the Bush administration's detention policies at Guantanamo Bay).

Detention protest

Within months of signing the NDAA, the Obama administration defended Section 1021 in court against a lawsuit brought by a group of journalists and activists worried that they could be subject to the law's provisions. That defense continued through a temporary injunction after the indefinite detention provision was found unconstitutional by U.S. District Judge Katherine Forrest, of New York's Eastern District. When that injunction was made permanent, because of the chilling effect it could have on journalists who cover people and activities the goverment tags as terrorism-related, as well as its overt contempt for due process, the administration immediately appealed. Judge Forrest's ruling, the government argued, was an "unprecedented" incursion into executive and legislative power that wrongly tied the hands of military commanders in time of war. Besides, argued the Obama administration, there's nothing special about the NDAA, since it simply restated powers authorized by the post-9/11 Authorization for Use of Military Force Act. Judge Raymond Lohier must have found that feasible, since he stayed the permanent injunction pending a review by a three judge panel.

That the government claims it already has powers that Obama insisted he didn't want before endorsing anyway has been noted by journalist Chris Hedges, one of the plaintiffs in the case. Writes Hedges:

[Assistant U.S. Attorney Benjamin] Torrance told the court that judicial interpretation of the AUMF made it identical to the NDAA, which led the judge to ask him why it was necessary for the government to defend the NDAA if that was indeed the case. Torrance, who fumbled for answers before the judge's questioning, added that the United States does not differentiate under which law it holds military detainees. Judge Forrest, looking incredulous, said that if this was actually true the government could be found in contempt of court for violating orders prohibiting any detention under the NDAA.

From pretending horror over the power to detain people without charges or trials, Obama has moved on to embracing that power, defending that power, and arguing that the executive branch had that power long before the current law was passed. That he came to this supposedly newfound disdain for due process with bipartisan connivance in Congress, and with his Republican opponent, Mitt Romney, me-too-ing his support for the NDAA, suggests that those of us who oppose such power have been left with few channels for appeal.

Yes, it's good that President Obama scrubbed those archaic protestations of civil libertarian outrage from his party's platform. Whatever his sentiments might once have been, it's clear that he has us all in detention now.

NEXT: Obama Pressed Over Fast and Furious on Univision

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. Remember when “I’ll hold him forever” was just a line in bad romantic movies?

  2. When future historians inquire into how the practice of indefinite military detention without trial loss of basic freedoms and legal relativism that came to describe our Constitutional process became formally entrenched in a country with such strong constitutional safeguards and stringent criminal justice guarantees, they will find that it did not happen all at once, but rather via a series of incremental steps.


    1. Boiled frogs and whatnot.

      No matter. This election will be decided on jobs, gay marriage, and abortion.

  3. Wow man, now why didnt I ever think of that.


    1. Because your name isn’t Obamney or Robama?

      Oh, sorry, I thought you were part of the conversation.

  4. Oh, let him pretend to be a champion of civil liberties. His followers already feel this is the case, and everyone else knows he’s a liar.

    1. His followers already feel this is the case

      Oh, you are so fucking right, dude. I’ve argued with democrat shitlickers who can’t figure out why I rage it this prick’s assault on civil liberties. The Obama Left has no revolutionaries. They are spineless strawberry jam on marshmallow pie. REAL goddamn motherfucking pillowbrains.

    2. Romney is going to take away teh wyminz rights to abortions and birth control and pass a constitutional amendment requiring them to stay barefoot and pregnant.

      Obama defends the only important rights, or something.

      It’s enough to make sure he’ll get the votes of the people who bandy about phrases like “human rights”, “civil rights” etc.

  5. Forget detention. The President of the United States ordered the murder of an innocent American citizen. Why isn’t anyone talking about that? He’s asking Muslims to respect free speech when he killed al-Awlaki to shut him up.

    1. War crimes: that’s why Obama will never prosecute any of the Bush-era crimes — because Obama intends to continue with them.

  6. Yep, they accuse Republicans of trying to do it, but it’s always Democrats that actually do it.

    Bush never even tried to make a case for keeping them indefinitely. I believe that Bush wanted to finish the war, and have a positive active control over terrorism so that it was no longer profitable, nor safe first, and then the money they cost just would no longer be warranted. I think at that point Bush would have used whatever intel was gathered, searched for more evidence, and then when it was ready, have them prosecuted, probably under the UN court.

    But liberals wanted to ram them through justice systems like it could just be magically done and we would live happily ever after patting ourselves on the back as we released all these people to go and continue their terrorist attacks. Then the greatest most naive denouncer of Guantanamo gets into office and not only does he stop denouncing Guantanamo, he actually takes it further than anyone else ever wanted too, and seeks to keep Guantanamo indefinitely until these people die of old age.

    You wanna know the real reason. Because Obama never even intended to finish the war on terror. In fact, he probably wants Guantanamo so Democrats have a place to send dissenters when they’re finally able to seize the level of power and control they’ve been fighting for over the last 2 decades.

  7. This conversation seems a mite one-sided. Where are our resident lefties? Why don’t they want to talk about this? In fact, the Left as a whole seems to be utterly disinterested in this issue. They are the ones always saying that they are the ones who care about people.

    1. They will just blame Bush.

      As many have argued, the best thing about Romney winning would be that the media/libs would all of a sudden care about this stuff again.

  8. Commander-in-Chief Obama loves the smell of indefinitely detained prisoners’ underwear in the morning.

  9. Thank you very much

  10. ed those archaic protestations of civil

Please to post comments

Comments are closed.