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Administration Drops Veto Threat, Will Sign Indefinite Detention Bill

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The Obama Administration this month abandoned an earlier commitment to veto a new bill permitting indefinite military detention without trial of terrorist suspects, including American citizens, and enacting provisions that will essentially keep Guant

anamo open indefinitely. The detention provisions are part of the 2012 National Defense Authorization Act (NDAA), an annual omnibus bill authorizing the Department of Defense’s expenditures for the upcoming year and covering everything from expanding mental health services for servicemen to the number of new ships purchased by the Navy. The NDAA was passed by the House and the Senate, and is expected to be signed into law by President Obama.

Many of the executive powers granted by this bill already exist: both the Bush and Obama administrations have argued that the 2001 Authorization for the Use of Military Force (AUMF), signed in the wake of the 9/11 terrorist attacks, already authorizes indefinite detention and the targeting of those who “substantially supported” Al Qaeda or its allies. As such, the bill’s supporters argue that it just codifies existing practices. However, enshrining indefinite detention into law is an unprecedented move that has not occurred since the McCarthy era when Congress overrode President Truman’s veto to pass the Internal Security Act of 1950, permitting the imprisonment of Communists and other “subversives” without due process or fair trials. President Obama has never rejected the idea of executive power of indefinite detention and has in fact made use of it, but has never gone so far as to sign it into law. Now, any hopes that indefinite detention could have become a thing of the past have been dashed.

As the House and Senate debated the 2012 National Defense Authorization, the Obama Administration threatened to veto “[a]ny bill that challenges or constrains the President’s critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation would prompt the President’s senior advisers to recommend a veto.” However, on December 14, 2011, the President announced that adjustments made by a House-Senate conference committee had satisfied the Administration’s concerns about the bill.

The truly distressing issue is that despite its rhetoric about protecting “fundamental American principles,” the White House’s objections to the proposed bill were not substantive concerns about the erosion of civil liberties or the idea of indefinite detention, even of U.S. citizens. Rather, its concern was that the bill would limit the executive’s ability to decide how to handle detainees, and leave too much power in the hands of Congress. In other words, the Administration’s objection to the bill was that the executive was not granted enough detention power. The modifications made in conference gave the White House the “flexibility” it claimed were necessary for its counterterrorism policies: they did not remove the troubling provisions that curb civil liberties and place stringent restrictions on Guantanamo transfers (which the President had also previously threatened to veto). Yet this was enough to alleviate the White House’s concerns.

The Administration’s willingness to compromise civil liberties is further evidenced by a revelation from Senator Carl Levin, one of the main proponents of the bill, who announced that the Administration itself demanded that a provision in the original draft exempting U.S. citizens from military detention be removed. That provision was one of the few limitations placed on executive power – that American citizens could not be detained on U.S. soil. By requiring that it be removed, the White House has shown its true motivation in threatening to veto the bill: ensuring that it did not contain any limits on the President’s detention powers, not protecting civil liberties and the rule of law.

Furthermore, these actions indicate that the 2001 AUMF, instead of being considered an outdated piece of legislation closely tied to 9/11, will continue to provide the basis for expanded executive power and military action for the foreseeable future. With Osama bin Laden dead, the wars in Afghanistan and Iraq ending, and U.S. officials acknowledging that Al-Qaeda is no longer the great threat it once posed, the question arises as to whether expanded military powers are really necessary at this point. However, in ratifying the 2012 NDAA with its continued reliance on the AUMF, the President and Congress have signaled that the vaguely defined War on Terror will continue indefinitely at the expense of due process rights and civil liberties.

Many of the executive powers granted by this bill already exist: both the Bush and Obama administrations have argued that the 2001 Authorization for the Use of Military Force (AUMF), signed in the wake of the 9/11 terrorist attacks, already authorizes indefinite detention and the targeting of those who “substantially supported” Al Qaeda or its allies. As such, the bill’s supporters argue that it just codifies existing practices. However, enshrining indefinite detention into law is an unprecedented move that has not occurred since the McCarthy era when Congress overrode President Truman’s veto to pass the Internal Security Act of 1950, permitting the imprisonment of Communists and other “subversives” without due process or fair trials. President Obama has never rejected the idea of executive power of indefinite detention and has in fact made use of it, but has never gone so far as to sign it into law. Now, any hopes that indefinite detention could have become a thing of the past have been dashed.

As the House and Senate debated the 2012 National Defense Authorization, the Obama Administration threatened to veto “[a]ny bill that challenges or constrains the President’s critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation would prompt the President’s senior advisers to recommend a veto.” However, on December 14, 2011, the President announced that adjustments made by a House-Senate conference committee had satisfied the Administration’s concerns about the bill.

The truly distressing issue is that despite its rhetoric about protecting “fundamental American principles,” the White House’s objections to the proposed bill were not substantive concerns about the erosion of civil liberties or the idea of indefinite detention, even of U.S. citizens. Rather, its concern was that the bill would limit the executive’s ability to decide how to handle detainees, and leave too much power in the hands of Congress. In other words, the Administration’s objection to the bill was that the executive was not granted enough detention power. The modifications made in conference gave the White House the “flexibility” it claimed were necessary for its counterterrorism policies: they did not remove the troubling provisions that curb civil liberties and place stringent restrictions on Guantanamo transfers (which the President had also previously threatened to veto). Yet this was enough to alleviate the White House’s concerns.

The Administration’s willingness to

compromise civil liberties is further evidenced by a revelation from Senator Carl Levin, one of the main proponents of the bill, who announced that the Administration itself demanded that a provision in the original draft exempting U.S. citizens from military detention be removed. That provision was one of the few limitations placed on executive power – that American citizens could not be detained on U.S. soil. By requiring that it be removed, the White House has shown its true motivation in threatening to veto the bill: ensuring that it did not contain any limits on the President’s detention powers, not protecting civil liberties and the rule of law.

Furthermore, these actions indicate that the 2001 AUMF, instead of being considered an outdated piece of legislation closely tied to 9/11, will continue to provide the basis for expanded executive power and military action for the foreseeable future. With Osama bin Laden dead, the wars in Afghanistan and Iraq ending, and U.S. officials acknowledging that Al-Qaeda is no longer the great threat it once posed, the question arises as to whether expanded military powers are really necessary at this point. However, in ratifying the 2012 NDAA with its continued reliance on the AUMF, the President and Congress have signaled that the vaguely defined War on Terror will continue indefinitely at the expense of due process rights and civil liberties.

Photo obtained from jtfgtmo.southcom.mil.


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