On December 31, President Obama signed into law the 2012 National Defense Authorization Act, one of the most constitutionally questionable bills in the history of the United States. The law broadens the definition of the “War on Terror” and legalizes the indefinite detention of foreign nationals and American citizens. While the President issued a signing statement promising to disregard this final provision, one ought to remain intensely skeptical of this claim—indefinite detention, while not yet officially applied to American citizens, is already regularly practiced abroad, and Obama’s rhetoric doesn’t change that it is now part of official law.
There has been discussion over whether or not this provision applies to U.S. citizens, but close examination reveals that it does. While the indefinite detention of foreign nationals “suspected” of sympathizing with, or providing any aid to, groups designated as terrorist organizations by the U.S. or “associated forces” is required by the new law, indefinite detention of American citizens in similar circumstances is optional—it is neither expressly required nor outlawed. The bill does not mandate indefinite detention of American citizens, but it certainly allows it.
More broadly, Obama’s embrace of the NDAA underscores his abominable approach to civil liberties. As some law professors and historians have suggested, we may be referring to the “Bush-Obama presidency” for years to come. For not only has the former constitutional lawyer continued some of the worst practices of the Bush administration—illegal wiretapping, indefinite detention, and the use of Guantanamo Bay—but he has come up with some of his own.
The war on whistleblowers, for instance, is a hallmark under Eric Holder’s Department of Justice. Using the 1917 Espionage Act, the DOJ has tried five whistleblowers for breaching national security—more than all previous administrations combined. There’s also the consistent evocation of the “state secrets” privilege, which Obama has used to avoid investigations into torture, illegal rendition, drone policy, or wiretapping. Finally, there’s the most radical policy—the President’s self-asserted right to target American citizens for killing without trial. While no one shed a tear when the American-born cleric Anwar Al-Awlaki was killed by an American drone in Yemen, such actions have troubling consequences. The President’s extraordinary ability to target and kill Americans is unprecedented.
While many of the President’s defenders often cite the necessity of engaging with Republicans to justify objectionable policies, this argument falters when it comes to civil liberties. Just as Obama had the ability not to specifically prosecute whistleblowers or approve the targeted killing of American citizens abroad, he had the ability to veto this law. Sadly, it’s rather fitting that Obama responded to this bill by issuing a signing statement expressing his “serious reservations.” No more pitifully do we see the utter clash between rhetoric and reality that has come to characterize his administration’s approach to civil liberties.
