The Weekly Sift

Wednesday, the Obama administration announced that the President would not to veto the 2012 National Defense Authorization Act (NDAA), the $600+ billion bill to fund the Pentagon for another year, into which Congress had inserted a number of other provisions.

That decision touched off a firestorm of debate among liberals: Was this a massive betrayal of human rights and civil liberties, or had Dianne Feinstein’s last-minute amendment eliminated the NDAA’s most serious problems?

Mother Jones’ Adam Serwer stated in bold:

The bill no longer authorizes the indefinite military detention of Americans captured in the US.

while Marcy Wheeler (whose EmptyWheel blog is my first stop on these kinds of issues) had the opposite view:

DiFi’s fix, which had the support of many Senators trying to protect civil liberties, probably made the matter worse.

and Steve Vladek of Lawfare wrote:

I’m not at all convinced that the conference version of the NDAA is substantially better than the House or Senate version (or that either is better than nothing)

None of these people is in the habit of making things up or is easily fooled by spin. So to sort this out, we’ll need to go back and tell the story from the beginning.

The AUMF. In the beginning was 9-11. Congress responded a week later by passing the Authorization for the Use of Military Force (AUMF) almost unanimously: 420-1 in the House and 98-0 in the Senate. Everybody wanted to go on record backing a swift and sure response.

The AUMF was short and sweeping. It authorized the President to

use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

But as the War on Terror developed, the Bush administration’s interpretation of “necessary and appropriate force” shocked many people, including me. It claimed the AUMF authorized not just the expected strike into Afghanistan, but also acts within the United States against American citizens. In May, 2002, Jose Padilla was arrested in O’Hare Airport and spent the next 3 1/2 years in military custody (in debilitating conditions) without any charges being filed against him.

The Bush administration framed the War on Terror as a new kind of war, where traditional notions of the battlefield and the enemy did not apply. So in practice, the battlefield was wherever the President said it was, and the enemy was anybody the President pointed his finger at.

Hundreds of non-Americans were held in a legal limbo, having neither the rights of criminals nor of POWs. That limbo was located in Guantanamo, a law-free zone which the administration said was neither part of the United States nor under the legal jurisdiction of any other country.

Traditionally, POWs are held until the war is over. But America’s nebulous “enemy” had no leader capable of announcing a general surrender. So in practice, the war would be over when the President said it was over.

The Supreme Court. These legal interpretations were tested piecemeal in a series of cases that went to the Supreme Court. The Bush administration won some and lost some. Standing against the administration was the Fifth Amendment:

No person shall be … deprived of life, liberty, or property, without due process of law

In its favor were two points: The Court has historically been reluctant to involve itself in war decisions, and past Courts have judged presidential actions according to the Jackson Test:

When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty.

So while no President can legitimately do something flat-out unconstitutional, in nebulous regions it matters whether or not he has the backing of Congress. So it matters what Congress intended the AUMF to authorize.

Jose Padilla‘s case would have clearly established the limits of the president’s detention power, but the Supreme Court was not eager to rule on it. The first time Padilla’s habeas corpus petition reached the Supremes in 2004, they dodged by ruling that Padilla had filed in the wrong venue.  A refiled petition came back to them late in 2005. Fearing a Court ruling that might clip their wings, the Bush administration made the Padilla case moot by charging him in criminal court.

So the general question of whether a president can indefinitely imprison an American citizen without charges remains unsettled.

Obama. In the 2008 Democratic primaries, liberals liked that Barack Obama was a constitutional lawyer and a champion of civil liberties. As president, he got off to a good start. In his inaugural address he said:

As for our common defense, we reject as false the choice between our safety and our ideals.

Two days later he ordered Guantanamo closed within a year, detainees treated according to the Geneva Conventions, and interrogators restricted to the techniques in the Army Field Manual rather than “enhanced interrogation” (i.e. torture).

Things have gone downhill considerably since then, as Jonathan Turley outlined last September in the LA Times.

Obama failed to close Guantanamo Bay as promised. He continued warrantless surveillance and military tribunals that denied defendants basic rights. He asserted the right to kill U.S. citizens he views as terrorists. His administration has fought to block dozens of public-interest lawsuits challenging privacy violations and presidential abuses

Worse, by doing this as a Democrat he has left liberal civil libertarians nowhere to roost. Can we expect Mitt Romney or Newt Gingrich to be better? Can we surrender every other liberal value and back Ron Paul?

NDAA and the Feinstein Amendment. The NDAA is a huge bill. Tucked into the middle of it is section 1021 — just two pages, which the Lawfare blog reproduces here.

1021 spells out the detention policies that the Bush administration interpreted into the AUMF. It “affirms” that the AUMF authorizes the detention of “covered persons” — not just members of al-Qaeda or the Taliban, but “associated forces” and people who “substantially supported” them. Detention is authorized “until the end of hostilities”.

1021 is cleverly worded not to appear to authorize anything new. Subsection 1021d says that 1021 doesn’t  “limit or expand” the President’s authority, and 1021e (the Feinstein amendment) says:

(e) AUTHORITIES.—Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

This is what Democratic congressmen mean when they say that the bill just “codifies current law”. This is technically true, but false in practical terms, because no one is sure what current law means. And when the courts try to figure out what current law means, they’ll consult the NDAA.

Example. Suppose a new Jose Padilla is arrested and held in military custody without charges or trial. (To bring home how sweeping this power is, Marcy Wheeler explained how a president could imprison banker Jamie Dimon, leading Daily Kos’ David Waldman to say tongue-in-cheek: “Too difficult to prosecute Wall Street crime? Don’t!” Just lock ’em up in a military brig without any trials.)

In court, the administration could not argue “This detention is authorized by the NDAA of 2012” because the Feinstein amendment specifically says the NDAA doesn’t do that.

However, the NDAA would come up in the following way: The administration would claim that the detention was authorized by the AUMF. The defense would counter that this is a bizarre interpretation of “necessary and appropriate force” that the Congress of 2001 never envisioned. And the administration would respond: “Yes, Congress did. We know so because Congress ‘affirmed’ that interpretation in the NDAA of 2012.”

I hope the Court would then ignore the AUMF, quote the Fifth Amendment, and tell the administration that Americans get trials. But that position would have the full force of the Jackson Test against it.

President Baggins. President Obama and the various Democrats in Congress who (along with many Republicans) supported this bill have put liberals between a rock and a hard place. So far, President Obama has used these extraordinary powers less flagrantly than President Bush. For the most part, he has been carrying the Ring like a hobbit, not wielding it like a Dark Lord.

But Obama is the wrong Baggins. Rather than take the Ring to Mount Doom like Frodo, he’s been holding it like Bilbo. His very lack of flagrancy keeps the Ring from being destroyed, because no Padilla-like case arises that will force the Supreme Court to rule.

And if he preserves the Ring long enough, maybe President Sauron will possess it after him. The Republican candidates other than Ron Paul seem eager to play the Sauron role, and President Paul would be a disaster for a lot of other reasons. So what’s a liberal to do?

I have no good answer. The Republican candidates scare me to the point that I am unwilling to undermine Obama’s re-election bid. I can’t support a primary challenge (which isn’t happening anyway), and when we get to the fall election, preserving the Ring (bad as it is) is still better than wielding it. (Marcy Wheeler sums this up as: “Vote for me or Newt will have authority to indefinitely detain you.”)

At the same time, I am not willing to pretend that this is not an issue, or let President Obama pose as a civil libertarian. We have to keep this inflated presidency out of Republican hands while simultaneously preserving the civil-liberty issue for 2016, when perhaps we can find a real champion.