On New Year’s Eve, President Obama signed the National Defense Authorization Act, the funding bill for the Defense Department, even though it contained items that many see as an assault on constitutional rights and civil liberties. The president issued a signing statement in which he expressed reservations about some of these measure.

But civil libertarians have been pointing out the ways in which either this administration or some future one could use this legislation to arrest people it does not like, even U.S. citizens, on U.S. soil and hold them indefinitely without trial.

The objectionable language was inserted by Senators John McCain, R-Ariz., Carl Levin, D-Mich., Joe Lieberman, I-Conn., and Lindsey Graham, R-S.C.

The bill passed in December by a margin of 283 to 136, with 14 not voting, in the House; and 86 to 13, with one not voting, in the Senate (to find out how your senators and congressperson voted, you can look them up on the website of the Library of Congress).  Initially, President Obama said he would veto it, but changed his mind just before Congress passed it.

Among other things the legislation requires the government to arrest and detain indefinitely without trial non-citizens suspected of supporting this country’s enemies in the “war on terror” (Al Qaeda, the Taliban or possibly others in the future), even if they are on U.S. soil. The bill as finalized also permits the government to dish out the same treatment to U.S. citizens (again, even if they are arrested on U.S. soil). The military would be involved in the arrests and detentions, which effectively overthrows the 1878 “Posse Comitatus” Law. The law also contains language to prevent the president from closing the prison at Guantanamo Bay, Cuba, and from moving Guantanamo prisoners stateside.

In his signing statement, President Obama reiterated his qualms about some of these measures, and promised that as long as he is president, U.S. citizens will not be imprisoned on this basis. However, he said he felt constrained to sign because the overall bill, funding the troops, could not be allowed to fail. Yet others suggested that if he had vetoed it, Congress would most likely have been forced to respond by presenting him with a different defense authorization bill, minus the objectionable parts.

Organizations and activists who have spent a very intense decade fighting against attacks on civil liberties and constitutional rights, originally by the Bush administration, reacted with sharply worded denunciations and expressed disappointment that Obama, a constitutional lawyer, had signed a bill of very questionable constitutionality.

They see the insertion of this bill into the framework of the “war on terror” as particularly dangerous. Other wars have a specific ending point. President Abraham Lincoln suspended habeas corpus during the Civil War, for which he was much criticized, but that war ended, except for some skirmishes, when Robert E. Lee delivered his sword to Ulysses Grant at Appomattox, and the special powers of the government to detain people without trial ended at that juncture. The “war on terror” could become a permanent fixture of our lives for the foreseeable future, and the power to detain without trial could expand to fit the needs of various politicians in power.

The American Civil Liberties Union issued a statement saying in part:

The 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 …The ACLU believes that any military detention of American citizens or others within the United States is unconstitutional and illegal, including under the NDAA. In addition, the breadth of the NDAA’s detention authority violates international law because it is not limited to people captured in the context of an actual armed conflict as required by the laws of war.”

For its part, the Center for Constitutional Rights in New York, which has been heavily involved in the defense of the due process rights of the detainees held at the Guantanamo Bay Navy Base in Cuba, conjured up a frightening picture of what might happen in the future: “President Obama did pledge in a signing statement not to use this law to detain American citizens but this provides little comfort, as signing statements have no legal force and he has repeatedly failed to uphold similar promises in the face of political pressure – including his pledge to close Guantanamo during his first year in office. More important, even if President Obama were to keep his promise, the law authorizes a future president, such as President Romney, President Bachmann, or President Perry, to use this authorization in the most aggressive manner possible.”

The legislation will be challenged in the federal courts. Meanwhile, legislation has been introduced in Congress to make sure that U.S. citizens and permanent legal residents are not arrested and detained indefinitely without trial: HR 3703, which already has 40 co-sponsors, and S 2003, which has 13.


Emile Schepers
Emile Schepers

Emile Schepers is a veteran civil and immigrant rights activist. Born in South Africa, he has a doctorate in cultural anthropology from Northwestern University. He is active in the struggle for immigrant rights, in solidarity with the Cuban Revolution and a number of other issues. He writes from Northern Virginia.