Some on the right and the left claimed that President Obama, in signing the National Defense Authorization Act, severely curtailed civil liberties further than even the Bush administration. However, Obama has been working cautiously to actually stop and rollback a current GOP push to further restrict American rights.
On Feb. 28, the president issued a directive that softened a provision in the NDAA that would have forced authorities to hold all non-Americans accused of ties to terrorism in military custody. After a long struggle between Obama, Democrats and civil right advocates on one side and most Republicans on the other, this appears to have removed the last piece of the NDAA that could be unconstitutional, at least for the remainder of Obama’s time in office.
The NDAA was mainly an allocation of funding for U.S. military actions, but it also included certain “counter-terrorism” measures that opponents said would severely and unconstitutionally curtail civil liberties in the U.S.
The president’s move marks a culmination in Obama’s attempts to take out the harshest provisions of the NDAA. Even before his most recent actions, the sections of the NDAA most egregious to civil libertarians had been stripped away.
As the Daily Koz notes, Obama’s new directive will “end military detention for non-citizen terror suspects.” This effectively restores civil rights policy to pre-Bush administration levels. Obama said that this is no threat to national security, noting that his administration has successfully prosecuted terrorists in civilian courts.
While Obama has done what he can to protect civil liberties, there is a limit to presidential power, Verdict, a legal blog, noted. Another administration could easily undo Obama’s restrictions, and enshrining them would therefore require Congressional action. Sen. Feinstein and others have introduced such bills.
Two provisions of the original bill caused the most concern: Sections 1021 and 1022, added by Republicans, put forward harsh “counter-terrorism” measures.
Section 1021 “affirms” that under the 2002 Authorization of the Use of Military Force, the president has the authority to order the military to detain without trial anyone suspected of colluding with terrorists – until the end of hostilities. However, others argued that the AUMF did not give the president this right, and that, further, the provision was unconstitutional. If this was the case, opponents argued, the NDAA would actually create and enshrine an unconstitutional violation of civil liberties.
Democrats in the legislature were generally opposed to this expansive interpretation of the AUMF, and offered several amendments. The one that passed was a compromise: a proviso was added stating, basically, that whatever this section said, it did not change the current law. In essence, if the AUMF did grant these powers to the president, they were still granted; if it did not, the NDAA did not change these rules. Another amendment said that this section did not pertain to U.S. citizens.
Section 1022 said that anyone detained under section 1021 must be held in military custody, but an amendment from Senator Diane Feinstein, D-Calif., modified the bill to say remove the military detention requirement – but not the option. Because Section 1021, as amended, could not apply to citizens, Section 1022 refers to non-citizens only. This “rigid, inflexible requirement” to non-citizens is what Obama’s Feb. 28 directive removed.
The original designers of the NDAA sought to make the detention mandatory and outside the discretion of the president. However, during the Congressional battle over the bill, the restrictions on the executive were weakened, thus allowing Obama to issue the current directive.
After the back-and-forth in Congress, a presidential threat to veto the whole bill, a public outcry from civil libertarians and the subsequent amendments to the final bill, Obama signed the NDAA into law Jan. 31.
“The fact that I support this bill as a whole does not mean I agree with everything in it,” Obama said in a signing statement. A signing statement made by a president is not unimportant: it signals how the law will be interpreted and implemented by the executive agencies.
“I want to clarify that my administration will not authorize the indefinite military detention without trial of American citizens,” Obama said. “Indeed, I believe that doing so would break with our most important traditions and values as a nation. My administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war and all other applicable law.”
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