President Obama issued a policy directive on Tuesday that was quickly portrayed as a resolve to his right to detain US citizens without trial. In reality, the plan is a carefully crafted PR move that doesn’t strip his absolute power over Americans.
The presidential policy directive released by the White House this week comes nearly two months to the day after US President Barack Obama approved the National Defense Authorization Act for Fiscal Year 2012 (NDAA FY12), a detrimental law to each and every American that has attracted criticism from all sides of the political system since passed. On December 31, 2011, the president inked the legislation allowing for the indefinite detention of alleged terrorists and the confinement of those accused under the jurisdiction of the US military without due process. In his latest offering from the Oval Office though, Obama is insisting that the United States requires more wiggle-room in how it goes about regulating the provision that puts suspects in the Pentagon’s custody.
The signing could indeed bring a cease to the requirement of military detainment for alleged adversaries of America, a requirement that is authorized under Section 1022 of the act. It does not, however, squash the indefinite detention without trial provision of Section 1021, nor does it negate the fact that the US government has already allowed itself to approve a nasty legislation that denounces the civil liberties of every American and has marred the administration of a president who campaigned on upholding constitutional rights.
Only hours after the New Year’s Eve signing, American Civil Liberties Union Executive Director Anthony Romero said, "President Obama's action … is a blight on his legacy because he will forever be known as the president who signed indefinite detention without charge or trial into law.”
The president is now responding, but the truth is his reply is much too little and almost, legally, too late.
In explaining his reasoning for issuing this week’s directive, Obama did not exactly denounce any provision of the NDAA, but instead insisted that the White House "must retain the flexibility to determine how to apply those tools to the unique facts and circumstances we face in confronting this diverse and evolving threat.” To do so, wrote the president, the United States government must go about handling Section 1022 of the NDAA in a different manner that would relieve the country from any added security threat.
Under Section 1022 as approved by Congress and authorized by the president, the US Armed Forces can hold and capture a wide range of applicants under military provision, including but not limited to “a member of, or part of, al-Qaeda or an associated force” and anyone “to have participated in the course of planning of carrying out an attack or attempted attack against the United States or its coalition partners.”
In section ‘a,’ paragraph 3 of the provision, “Military Custody for Foreign Al-Qaeda Terrorists,” the president is allotted the power to pen a waiver for national security that would waive selected foreign parties from the military detainment allowance. Section ‘c,’ paragraph 1, gives Obama 60 days to detail procedures for implementing Section 1022 — this week’s policy directive comes exactly 59 days into the two-month window.
Under his latest addendum, the president argued that placing alleged terrorists into military custody “would undermine the national security interests of the United States, compromising our ability to collect intelligence and to incapacitate dangerous individuals."
“That system … must continue to be an unrestricted counterterrorism tool going forward,” added Obama.
As a compromise to the military detainment provision, the president is now insisting that alleged terrorists don’t necessarily have to be handed over to the Pentagon for prosecution or, as otherwise granted in the NDAA, indefinite detention without trial under the watch of the Armed Forces. Instead, wrote Obama, a captured alleged criminal should be subjected to the standard practices for federal law enforcement that agencies have acted on according to pre-NDAA operating procedures; until, of course, a handful of governmental high-ups authorize the transfer to a military prison. At that point, every word of the NDAA will once again be a-okay.
Under the directive, the requirement to go straight to military jail is waived if doing so will impede counterterrorism cooperation with other nations, interfere with US detainees held abroad, jeopardize the security of the captive’s cooperation and a handful of other categories. Even under this change, however, the final decision is still up to the president to make.
Simply put, the White House is asking for a little leeway in how it goes about handling detainees before putting them on the boat to Guantanamo Bay.
Some are saying that the latest statement comes as a breath of fresh air in terms of a law that has already caused an immense backlash of critics of the NDAA. It does not, however, nowhere in the directive, do anything to dismiss Section 1021 of the Defense Act, where alleged terrorists, “including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces,” can be detained “under the law of war without trial until the end of the hostilities.”
When Obama authorized the NDAA last year, he did so by including an addendum in which he pledged, “[M]y Administration will not authorize the indefinite military detention without trial of American citizens,” adding, “My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war and all other applicable law.”
The ACLU’s Anthony Romero was quick to tell The Atlantic, however, "The statute is particularly dangerous because it has no temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield.”
Nine states have so far offered their own legislation which would condemn, at least in part, the NDAA. Earlier this week, a bill drafted in the Commonwealth of Virginia successfully passed the Senate after being approved by the House days earlier. The State of Washington has also drafted a bill that would relieve itself of the detainment provisions and, just recently, Utah offered a resolution of their own.
As lawmakers on a local level rally to dissolve themselves from the NDAA, President Obama’s directive this week could easily be perceived as an attempt to align himself with a growing mass of angry Americans alienated by last year’s signing. In mainstream headlines and press releases it might seem like the president is putting the NDAA to rest, but the fine print reveals that Obama’s actual addendum is nothing but a skillfully orchestrated PR move. Indefinite detention without trial? Yup, it’s still there. For those pesky probable-war criminals, however, they will be freed — at least momentarily — from Gitmo’s orange hoods and advanced interrogation techniques.
The truth behind the directive: don’t believe the hype.