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.


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).

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.