Tuesday, January 3, 2012

Why Obama Was So Wrong to Sign the NDAA into Law

On the last day of 2011, Obama signed into law what may well be the worse piece of legislation to come across his desk.   The NDAA - the National Defense Authorization Act for Fiscal Year 2012 - has actually been on the books since 2008, and has language that authorizes indefinite detention of suspected terrorists without trial.   An attempt to amend the bill to prohibit the indefinite detention of American citizens on U.S. soil was defeated in the Senate.  Obama supported the amendment, and issued a Presidential letter along with his signing of the NDAA, stipulating that his "Administration will not authorize the indefinite military detention without trial of American citizens".

But he signed the bill into law anyway.

Why is that so wrong and dangerous?

Let's first look at the logic of the section of the law (Section 1021) that authorizes indefinite detention without trial, for it does have its logic.  Let's say the FBI is able to break-up a terrorist plot on American soil, something it was not able to do prior to September 11, 2001.  If the suspects were arrested and put on trial - as required for all other people arrested - they would be entitled to mount a defense, call witnesses, etc.  The prosecution could be compelled to reveal sources and information which could impede stopping of other terrorists, and damage American security.

And that logic is not insane, not unsound.  It has merit.  But does it justify what could be done to American citizens having nothing to do with terrorism?

I believe Obama when he says he won't use the law to lock up Americans indefinitely without trial.  But what about his successors?

I'm old enough to remember what America was like when JFK was President - a country full of hope and purpose.  If JFK had signed such a bill into law in 1962 - after Richard Nixon, beaten in the Presidential election of 1960, and again in the California gubernatorial race of 1962, had announced that the press would not have "Dick Nixon to kick around any more" - would I or anyone have imagined back then that Nixon would be sitting in the White House just seven years later?   I certainly did not, and yet Nixon was elected President, and created an "enemies list" which was secretly targeted for harassment by his administration.   That enemies list consisted not of terrorists or even run-of-the-mill criminals, but of Nixon's political critics, period.   Is there anyone alive back then, or who has studied that history, who has confidence that Nixon would not have used an NDAA to not only harass but lock up without trial the Americans he deemed the worst of his enemies?

Obama, in part because of that law - which has been rightly denounced by the American Civil Liberties Union and has angered progressives who are his political base - could conceivably be a one-term President.   Look at the Republican candidates for President.  All but  Ron Paul are far more hawkish than Obama.   Are you confident that Rick Santorum or Mitt Romney wouldn't use the NDAA to put Amercans in detention without trial, for reasons they thought justified?

Bill Clinton made a similar error, less grievous, perhaps, when he signed into law the Communications Decency Act, which punished salty language on the Web (including political) with fines and imprisonment. Fortunately, the Supreme Court struck down that violation of the First Amendment. 

Obama missed his chance to defuse this currently ticking time bomb to American democracy and due process.  It's now up to the Supreme Court to strike the NDAA down for the unconstitutional game of Russian roulette that it is with our freedom and way of life.

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