America changed as the New Year stumbled across the threshold, but the big shift didn’t get much press, which is easy to understand. Can there be a deader news day than a New Year’s Eve that falls on a weekend? Besides, alive or dead, habeas corpus has never been a topic to set news editors on fire.
The change came with the whisper of Barack Obama’s pen, as he signed into law the National Defense Authorization Act (NDAA), the annual ratification of military Keynesianism—$662 billion this time—which has been our national policy since World War II bailed out the New Deal.
Sacrificial offerings to the Pentagon aren’t news. But this time, snugly ensconced in the NDAA came ratification by legal statute of the exposure of US citizens to arbitrary arrest without subsequent benefit of counsel, and to possible torture and imprisonment sine die. Goodbye, habeas corpus.
We’re talking here about citizens within the borders of the United States, not sitting in a hotel or out driving in some foreign land. In the latter case, as the late Anwar al-Awlaki’s incineration in Yemen bore witness a few months ago, the well-being or summary demise of a US citizen is contingent upon a secret determination of the president as to whether the aforementioned citizen is waging a war of terror on the United States. If the answer is in the affirmative, the citizen can be killed on the president’s say-so without further ado.
We’re also most emphatically not talking about non-US citizens or possibly even legal residents (though I’d urge green card holders to file for citizenship ASAP). Noncitizens get thrown in the Supermax without a prayer of having a lawyer. Under the terms of the NDAA a suspect’s seizure by the military is a “requirement” if the suspect is deemed to have been “substantially supporting” Al Qaeda, the Taliban or “associated forces.”
By the military? Until December 31 the Posse Comitatus Act of 1878 limited the powers of local governments and law enforcement agencies from using federal military personnel to enforce the laws of the land. No longer. The NDAA renders the Posse Comitatus Act a dead letter.
Connoisseurs of subversion and anti-terror laws well know that “associated forces” can mean anything. See, for example, one of the definitions of “enemy combatants” minted after 2001: “associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.” Like those “memory pillows” I saw on discount in Macy’s on New Year’s Day, the phrase “directly supported” will adjust itself to the whim of any ingenious prosecutor.
Obama issued a signing statement simultaneous with passing the act into law. Theoretically, he’s against signing statements. In 2008 he said, “I taught the Constitution for ten years, I believe in the Constitution, and I will obey the Constitution of the United States. We’re not going to use signing statements as a way of doing an end run around Congress.”
Actually, whatever Obama may have taught, a signing statement, whether issued by Bush or Obama, doesn’t have the force of law. Obama’s December 31 signing statement was designed to soothe the liberal vote, as the president expressed “serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists” and insisted that, by golly, he will never “authorize the indefinite military detention without trial of American citizens.”
This pious language was part of a diligent White House campaign to suggest that (a) there is nothing in the act to perturb citizens, but (b) anything perturbing is entirely the fault of Congress, and (c) Obama solemnly swears that so long as he is president he’ll never OK anything bad, whatever the NDAA might be construed as authorizing, and anyway (d) there’s nothing new about the detention provisions because they merely reiterate those of the Authorization for Use of Military Force, signed by Bush in 2001.
To take the last point first, the NDAA expands the 2001 law and codifies ample new powers, plus new prohibitions regarding any possible removal of prisoners in Guantánamo. As for Congress, its performance was lamentable, but as Senator Carl Levin, one of the bill’s co-sponsors, has convincingly inferred, the real reason the White House threatened a veto was because the bill as then drafted might have limited what the executive branch deems its present powers of indefinite detention without trial.
Amid the mutual buck-passing, what Congress and the White House connived at, beating back all obstructive amendments, was the framing of cunningly vague language about the dirty work afoot. Jonathan Turley, a great champion of constitutional rights and civil liberties, puts the trickery in a nutshell: “The exemption for American citizens from the mandatory detention requirement…is the screening language for the next section…which offers no exemption for American citizens from the authorisation to use the military to indefinitely detain people without charge or trial” (emphasis in the original).
That’s the heart of the matter. And in ambiguity we can see certainty: the writ of habeas corpus can now be voided at the whim of a president, whether it be Obama reversing himself on the personal pledges in his signing statement or any successor, as can the Sixth Amendment’s right to counsel.
One day, perhaps soon, the Supreme Court will rule on the act’s constitutionality. For now, as ACLU director Anthony Romero said after the signing, Obama “will forever be known as the president who signed indefinite detention without charge or trial into law.” America is an empire on which the sun never sets, and so, appropriately, the statute applies across the planetary “battlefield” that constitutes the Great War on Terror.