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Obama signs the NDAA despite “serious reservations”

In case you missed the bad news, President Obama marked his New Year’s Eve by signing the National Defense Authorization Act (NDAA) of 2012.

So that’s two (out of three) branches of government that have decided that the due process guarantees of the Fifth and Sixth Amendments of the Bill of Rights are expendable.   Our founding document appears to have gone the way of the Geneva Conventions, referred to as a “quaint” anachronism by former Attorney General Alberto Gonzales.  

President Obama appears to have held his nose while he signed the NDAA since he added a ‘signing statement’ that expressed his disagreement with no fewer than 15 of its sections.  During his term in office, President Bush had used signing statements to assert a right to bypass more than a thousand sections of laws and candidate Obama had declared he would not do a similar “end run” around Congress.  

In his NDAA signing statement, President Obama asserts his “serious reservations with certain provisions that require the detention, interrogation, and prosecution of suspected terrorists.”   He felt he had to sign the bill “not only because of the critically important services it provides to our forces and their families and the national security programs it authorizes, but also because the Congress revised provisions that otherwise would have jeopardized the safety, security and liberty of the American people…”.  

The revisions that led Obama to drop his threatened veto include language that gives the President the authority to use a “national security waiver” to remove a suspect from military to civilian custody; protects the ability of civilian law enforcement to investigate terrorism (instead of handing over this responsibility to the military in all cases); and asserts that there is no change in “existing law” as it applies to Americans and legal resident aliens.  

But what exactly is “existing law”?  President George Bush and the US Court of Appeals for the Fourth Circuit interpreted the Authorization for the Use of Military Force (AUMF)  to permit the indefinite military detention of Jose Padilla, an American citizen seized on American soil. 

But the President prefers to look forward, not backward to this precedent.  We have the assurance in his signing statement that for at least the coming year, the Constitution will prevail:  “I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.  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.”

And future Administrations?  The record of potential presidential challengers on national security issues is hardly reassuring.  Obama himself admits to uneasiness.  In the statement’s final paragraph he declares that “certain provisions remain concerning” and that his Administration “will seek the repeal of any provisions that undermine the policies and values that have guided my administration throughout my time in office.” 

A Congressional repeal may seem as unlikely as a Supreme Court ruling striking down as unconstitutional sections 1021 and 1022 of the NDAA. However, the Supreme Court surprised us before with its 2008 Boumediene v Bush decision stating that Guantanamo detainees had the right to habeas corpus under the US Constitution.  

Unfortunately, since then the US Court of Appeals for the Fourth Circuit has all but nullified the Supreme Court’s ruling in Boumediene by repeatedly rejecting those habeas corpus petitions upheld by the federal district court.    

And so the ‘war on terror’ grinds indefinitely on.  Thanks to the NDAA’s interpretation of the AUMF, the battlefield is now global, and our vaguely defined enemies need not in any way be linked to the attacks of 9/11.   

A President who once taught Constitutional law and took an oath to uphold the Constitution has drastically weakened due process protections for anyone labeled a ‘terrorism suspect.’  A signing statement declaring otherwise may give some comfort to Obama’s base, but the deliberately ambiguous, muddled and elastic language of the NDAA is likely to remain a threat to what were once considered our fundamental freedoms long after the President has moved on. 

© 2021 ACLU of Massachusetts.