Thursday, December 22, 2011

Last Call For Obama To Veto The NDAA

By Nicole Flatow, cross-posted from American Constitution Society

Following Congress’s enactment of the National Defense Authorization Act with some tweaks to the detainee provisions, the White House put out a statement that President Obama’s advisers would no longer recommend he veto the law.

Most have viewed this as an indirect announcement from Obama himself that the veto is off the table. But the Brennan Center for Justice’s Elizabeth Goitein reminds Obama in a column for The Hill that he alone will make the decision, and that it’s not too late to “reject this historic affront to our liberty and our security.”

“It would be extraordinary for the president to change course now,” writes Goitein, co-director of the Brennan Center’s Liberty and National Security. “But to sign a bill that permits the indefinite detention of U.S. citizens without charge, erects pointless barriers to law enforcement’s counterterrorism efforts, and requires the detention of innocent people would be even more extraordinary.”

Disappointment among civil libertarians has been widespread, with the Center for Constitutional Rights saying Obama has made a “choice with chilling consequences” and Human Rights Watch’s Kenneth Roth warning, "By signing this defense spending bill, President Obama will go down in history as the president who enshrined indefinite detention without trial in US law."

Georgetown University Law Professor David Cole explains in The New York Review of Books why the bill, even as amended, “continues to contain extraordinarily dangerous principles”:

It creates a presumption in favor of indefinite military detention for foreign al-Qaeda suspects, even if a criminal arrest and prosecution would be the preferred course. And it imposes this presumption even for foreigners caught within the United States. While the law permits the president to waive that, the presumption is still wrong: given its inconsistency with basic principles of due process, indefinite military custody should be the last, not the first resort.

Equally problematic, the law puts Congress’s stamp on a dubious—and untested—interpretation of military detention authority. The law provides that indefinite detention without charge may be imposed on anyone who has provided “substantial support” to groups that are “associated forces” of al-Qaeda; but it leaves undefined what constitutes “substantial support” and which groups might qualify as “associated forces.” Thus far, the lower federal courts have upheld detention of al-Qaeda or Taliban members, but not mere supporters, much less supporters of associated forces. And there is much dispute about whether the laws of war permit detention in those circumstances. Now Congress has essentially predetermined that question. Unless this and future administrations construe these provisions as limited by the laws of war, they risk authorizing detention that the laws of war would not.

Most disturbingly, the law still effectively prevents President Obama from closing Guantanamo. He can’t use any funds to build or modify a facility in the United States to house Guantanamo detainees—a necessary precondition to closing the prison. He cannot transfer any Guantanamo detainee to the United States, even to face criminal trial. And he cannot release any detainee to another country without meeting onerous certification requirements regarding that country’s security measures that, until now, have proven impossible to meet. (To its credit, the administration did get the conference committee to water down the certification requirements somewhat, but it still seems unlikely that they will be met.)


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