On New Year’s Eve, as most Americans were focused on parties and football games, President Barack Obama signed into law the National Defense Authorization Act for 2012. He issued a significant signing statement in the process:
I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists… I decided to sign this bill not only because of the critically important services it provides for 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. Moving forward, my Administration will interpret and implement the provisions described below in a manner that best preserves the flexibility on which our safety depends and upholds the values on which this country was founded…
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.
Obama’s decision hardly provoked applause from the NDAA’s critics. The ACLU stated that it was a “blight on his legacy because he will forever be known as the president who signed indefinite detention without charge or trial into law.” Jonathan Turley has called Obama’s decision to sign the NDAA into law America’s “Mayan moment”—the dooming moment “when the nation embraced authoritarian powers with little more than a pause between rounds of drinks.”
On the other hand, two legal scholars with strong civil-liberties credentials and close ties to the administration, Marty Lederman and Steven Vladeck, authored a serious review of the NDAA’s most controversial terms and found them to be a mixed bag, but far from a civil-liberties apocalypse. The measure can fairly be called the “Gitmo Forever” Act because it contains a series of provisions designed to frustrate Obama’s pledge to close the detention operations at Guantánamo. On the other hand, as the result of effective lobbying by the White House and civil libertarians, the worst of the provisions concerning what the military calls “detention operations” were reshaped into provisions that are either relatively harmless or sound statements of law.
Surely both of these views can’t be right?
Civil libertarians obviously would have preferred a veto of the NDAA, followed by its repassage, stripped of the special-detention provisions. Still, they scored a modest success in the signing statement (an ironic achievement, given that they sharply criticize signing statements in principle). There, Obama made an explicit promise about how he would use the authority some saw in the Act to place American citizens in indefinite military detention. He also restated his opposition to the creeping militarization of the criminal-justice process. And Lederman and Vladeck are certainly right that the most offensive aspects of the detention provisions were brushed away in the last rounds of negotiation. Maybe the “Mayan moment” that Turley has in mind is coming in the fall.
I don’t think Turley or any other civil liberties critic expects to see the Obama Administration sweep America’s streets, picking up American citizens and shipping them off to overseas military prisons. In fact, to the irritation of some of his Republican critics, Obama has gone on record opposing military detention for terrorism suspects who are U.S. citizens for some time now. The concerns of civil libertarians are based more on their recent experience of a Justice Department Office of Legal Counsel that sought to legitimize torture, schemed to bury the Posse Comitatus Act, wrote memos authorizing warrantless surveillance, and approved numerous war crimes. If you’ve watched any of the recent G.O.P. presidential debates, then you know all of the contenders (excepting Ron Paul and possibly Jon Huntsman) embrace torture techniques like waterboarding, would expand Guantánamo, believe that military prisons are the alternative to an ineffective criminal-justice system, would revive extraordinary renditions and CIA black sites, and generally rush to characterize anyone who thinks differently about the world as un-American or worse. Among this group, measures to strip Americans of their citizenship are a serious topic, while the ending of the wars in Iraq and Afghanistan provokes consternation. The question therefore becomes not what Barack Obama’s Justice Department would do with the NDAA, but what a Rick Santorum or Mitt Romney Justice Department would do. And on that score, Turley’s concerns, though melodramatic, are far from unrealistic.