Did Obama sign a law granting the Presidency power to detain American citizens indefinitely without trial? No, he did not. This is yet another manufactured story from the irrational left, which simply ignores the actual facts, like so many a Tea Partier would. I have always advised people not to trust the media implicitly but to check their facts whenever they say something that seems incredible. Like that a liberal Democrat like Barack Obama would sign into law such an act. Bush, maybe. But Obama? That’s an extraordinary claim. It requires extraordinary evidence. Newspapers and the Daily Show don’t rate as such (as much as I love the Daily Show, they ironically trust the mainstream media too often; I say ironically, because their raison d’être is practically, or precisely, not to do that).
And in this case I can advise a very specific rule (and this applies just as well to my recent blog on regulatory law) or anything else in politics: read the damn law. It’s not like it’s a hardship to find and read the exact text of our laws. Even bills still being debated and voted on are available for free, online. Our nation has set up a whole website just for you to be able to do that (it’s called THOMAS, a project of the Library of Congress). You can search it for bills by number or title or even keywords. If you did that in this case (say, by starting from a story online about this supposedly appalling, tyranny-creating bill), you’d find the bill’s status page (H.R. 1540 was the final version), and from there discover the full text of the version passed by the Senate (and signed into law by the President). (You can also download a PDF version of the physical bill). The relevant section is section 1021 (page 265ff. in the PDF).
BTW, one thing in this bill that no one reported on, which I think might actually be the most important thing in it, is that it eliminated [in section 541] the old UCMJ provision that allowed service members to rape their own wives: that’s right, the law used to define rape as any of a list of awful things done to a woman except one’s wife (explicitly: it said wives can’t even in principle be the rape victims of their own husbands). No shit: the very first line of this law read: “Any person subject to this chapter who commits an act of sexual intercourse with a female not his wife, by force and without consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct.” So you can force your wife to have sex with you without her consent. Nice. In this new Act, signed by Obama, the phrase “not his wife” is now deleted. The new law has also eliminated the bizarre assumption that only women can be raped and only men commit rape, by substituting “person” for all gendered terms.
But enough on that digression (what does the press care about advances in women’s rights?). Let’s get to the supposedly “tyranny creating” part of the law. That’s the part that enumerates the President’s options for how to treat enemy combatants, which this law says [in section 1021(c)] “may include” military trial, civil trial, deportation to another country (it thus technically authorizes rendition, although there may be other laws limiting that), or “detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force” (which we all know means forever; and yes, the Supreme Court has certainly proved it doesn’t care about such obvious Doublespeak: as those of us know who were appalled by the Supreme Court’s upholding of the Mickey Mouse law that establishes “indefinite extension” of all copyrights, in order to forever protect Disney’s ownership of Mickey Mouse among other things, in defiance of the U.S. Constitution which mandates copyrights exist for only “limited times”; the court argued that “indefinite” does not mean “forever” because Congress might set a limit in future; yeah, right…fuck you, Supreme Court). Okay, back to the main point…
First, the law specifically says [in section 1021(c)(1)] that such “indefinite detention” without trial must be in accordance with “the law of war” (which consists of a number of treaties governing the treatment of POWs and enemy combatants, which treaties include requirements for the legal review of the detainee’s status). So it’s not just any detention willy nilly with no rules whatever. Second, the law says [in section 1021(b)] that the only people who can be thus detained are those who have been significantly involved in perpetrating the 9/11 attacks or physically aiding and abetting Al Qaeda or the Taliban (with whom we are formally at war).
Several bloggers and pundits have casually ignored these facts. But still, one can balk at the idea that now the President has the power to indefinitely detain without trial even American citizens, without even having to prove they did anything, just by claiming they did. Technically that’s not true, as we are obligated by treaties to allow detainees to challenge such claims made against them, even granting them trials; and tribunals must decide a person’s status, the President can’t just decide that. But still, allowing American citizens to be treated like enemy or even unlawful combatants would still be a shocking erosion of American legal and constitutional rights. It’s just that this law doesn’t do that.
Because the same law says [in section 1021(e)] that “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.” Those few pundits who actually notice this section, claim it is “vague” and insufficient to protect our rights. They are full of shit. This is not vague. This is what lawyers call broad language. It is total and sweeping in scope. It says nothing in this section. That means nothing. Nada. Zip. Not one thing. End of story. And what is an existing law or authority pertaining to American citizens? Oh, I don’t know, let’s mention the fifth amendment, the sixth amendment, the eighth amendment (indeed even the ninth amendment). The most important of which is that no citizen may be “deprived of life, liberty, or property, without due process of law” which includes “the right to a speedy and public trial, by an impartial jury…and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
Since this National Defense Authorization Act for Fiscal Year 2012 explicitly says nothing in it can ever be construed “to affect” those laws, nothing in it takes away any rights from any American citizens. So why is everyone claiming it does? Because they are so dogmatically lost in the storyline that facts don’t matter to them anymore? Because they blindly trust what people on TV tell them and don’t go read the law for themselves even though it’s absurdly easy to do that? You tell me. (And before you say, like some already have, that “the Patriot Act” already gave the President the power to detain American citizens indefinitely without trial, go read it first and state the section where it says that; good luck finding it.) Because of all this nonsense, Obama had to add a completely unnecessary signing statement saying he wouldn’t do what the law already prohibits, simply to satisfy these nutheads. I only hope you weren’t one of them. If you were, then as a responsible skeptic, it is my hope you’ll do better next time.
In the meantime, myth debunked.