This time last year, President Obama responded to the 2011 National Defense Authorization Act with a signing statement. Objecting to the law's restrictions on the transfer of Guantanamo detainees to the U.S. for trial or to their home countries, the president promised: "My Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future." (My emphasis).
This past New Year's eve, President Obama signed the 2012 National Defense Authorization Act, or NDAA. In doing so, he extended the Guantanamo transfer restrictions, while also codifying the indefinite detention without trial of suspected terrorists. In the statement he issued with that signature, he said:
"I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists."
The pledge to seek repeal and oppose expansion of transfer restrictions had melted into a watery "reservation."
The president's Saturday statement also makes a new promise.
"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." Although the Obama Administration has consistently claimed the power to kill U.S. citizens without charge or trial in the war on terror, as it did to the radical cleric Anwar al-Awlaki in Yemen, the president now promises not to imprison them.
Of course, a future president still might.
President Obama presumably didn't mean to imply (did he?) that indefinite military detention without trial of non-citizens -- whether lawful U.S. residents or foreign suspects the U.S. captures anywhere in the world -- is now consistent with "our most important traditions and values as a Nation." That would directly contradict the Fifth Amendment to the U.S. Constitution, which states that no "person" (not just U.S. citizen) "shall... be deprived of life, liberty, or property, without due process of law."
But the NDAA wasn't all bad when it comes to U.S. military detention policy. In fact, section 1024 of the law, spearheaded by Senators John McCain and Lindsey Graham, provides detainees held indefinitely in Afghanistan with the right to a military defense lawyer and a neutral military judge to evaluate whether their detention is lawful and necessary. The provision was not particularly controversial and garnered little media attention; Congress apparently understood that for the U.S. to maintain any legitimacy while imprisoning some 3,000 Afghans in their own country it has to provide them basic rights to defend themselves. The current summary review proceedings at Bagram, which I wrote about in a report for Human Rights First after observing them last year, doesn't come anywhere near doing that.
President Obama's signing statement, however, suggests he plans to ignore that part of the law he just signed:
Sections 1023-1025 needlessly interfere with the executive branch's processes for reviewing the status of detainees. Going forward, consistent with congressional intent as detailed in the Conference Report, my Administration will interpret section 1024 as granting the Secretary of Defense broad discretion to determine what detainee status determinations in Afghanistan are subject to the requirements of this section.
In other words, the president has just thumbed his nose at Congress and said the Defense Secretary will provide whatever review procedure he wants to. And he's done that in a particularly cynical manner, claiming that Congress is interfering with executive power merely by demanding that the executive be held accountable for its exercise. That claim rings particularly hollow given that the current review process provided detainees in Afghanistan is even less robust than the one the Bush Administration provided to detainees at Guantanamo Bay and that the Supreme Court in 2008 struck down as inadequate. Though the Supreme Court hasn't yet ruled on the rights of Bagram detainees, it could approve the current Detainee Review Board process only by ignoring U.S. obligations under international human rights law.
Unfortunately, the text of the NDAA does leave many details to the Defense Secretary. While Section 1024 says "long-term detainees" are entitled to these new protections, it doesn't define "long-term." President Obama's statement suggests he may allow Secretary Leon Panetta to define "long-term" so narrowly as to exclude almost anyone the U.S. detains in Afghanistan, either now or in the future. Whatever Congress meant by Section 1024, it couldn't have been that.
Back when he was a candidate, then-Senator Obama criticized President George W. Bush for his frequent reliance on signing statements to circumvent Congressional intent: "[I]t is a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability. I will not use signing statements to nullify or undermine congressional instructions as enacted into law."
What a difference executive power makes.