President Obama signed the National Defense Authorization Act of 2012 into law but he attached a signing statement to it saying that he would not pursue indefinite detention for American citizens without court authorization. His apologists will not doubt claim that this is evidence of his commitment to justice and the rule of law, but the reality is quite different.
First of all, we were all highly critical of the Bush administration for issuing signing statements exactly like this one, where he said that he would refuse to enforce this or that provision in a bill or would interpret it in such a way as to preserve executive authority. If you criticized Bush for issuing such statements and you don’t criticize Obama for it, you’re a hypocrite. And guess what? Obama was one of those people. So were lots of members of Congress.
Obama declares bluntly that his administration will not use indefinite detention of American citizens:
Moreover, 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.
That’s certainly a good thing and I applaud the principle. But by using a signing statement rather than a veto, he allows the authorization of the very thing he claims to oppose for future administrations. Signing statements are not binding on future administrations (actually, they aren’t binding on Obama either; he can rescind that policy at will). I know it would be politically inconvenient for him to have to veto the bill, but the fact is that the constitution requires it.
The constitution only gives him the authority to issue a veto of the entire bill. The line-item veto is unconstitutional, as the courts have rightly said. So whether it’s easier for Obama — or Bush — to do it this way, they simply don’t have that authority. To be clear, he does have the authority not to hold anyone indefinitely because the law does not require him to hold them indefinitely, it only gives him the power to do so if he chooses to use it; but he does not have the authority to say, as he does in this signing statement, to say that he will choose not to enforce provisions that are mandatory if he believes they are inconsistent with his executive authority. That is exactly the kind of statement Bush made repeatedly that was criticized by Obama and nearly all Democratic officials.And then there’s this reality-bending statement:
Over the last several years, my Administration has developed an effective, sustainable framework for the detention, interrogation and trial of suspected terrorists that allows us to maximize both our ability to collect intelligence and to incapacitate dangerous individuals in rapidly developing situations, and the results we have achieved are undeniable. Our success against al-Qa’ida and its affiliates and adherents has derived in significant measure from providing our counterterrorism professionals with the clarity and flexibility they need to adapt to changing circumstances and to utilize whichever authorities best protect the American people, and our accomplishments have respected the values that make our country an example for the world.
He can’t seriously expect anyone to believe that, can he? If he has an effective, sustainable framework for detentions and trial of terror suspects, I’d sure love to see it. He and Holder have made lots of principled-sounding statements about the rule of law and the need for civilian trials, but the actions don’t match it. What they have done is establish a ridiculous three-tiered system where some detainees get civilian trials, some get military tribunals and and some get indefinite detention without any trial at all. And the primary distinction between those three groups is their assessment of which of those three options is most likely to result in a conviction. There’s nothing at all principled about that system, it shows concern solely for political results rather than for justice or the rule of law.
One could certainly argue that Obama was forced into such a result by the actions of the Bush administration, whose penchant for torture and indefinite detention has made it impossible to secure convictions against many of the Gitmo detainees without using evidence obtained by torture. But Obama has tried to have it both ways from the start on these matters, and you simply cannot claim to be devoted to the rule of law and the cause of justice while simultaneously claiming the authority to hold forever people who have never been shown in any legitimate tribunal to have done anything wrong. The military tribunals at Gitmo, even with the changes Obama brought to them, have done nothing to secure justice or to distinguish the guilty from the innocent. And they never will.