Barack Obama on 2012 NDAA

Last Updated : Sep 24, 2012

Summary

President Obama supported and signed the 2012 National Defense Authorization Act (NDAA). While not particularly vocal on the controversial aspects of the legislaiton, the Obama administration did express concern over the wording relating to indefinite detention in a policy statement and in a signing statement. However, during floor debates in the Senate over these matters, Senator Levin asserted that it was the Obama administration that asked for an amendment repealing those aspects be removed.

Since the passage of the legislation, the Obama administration has continued to fight in court to keep the aspects of the NDAA relating to detention of US citizens legal despite asserting that they oppose these measures.

Policy Statement

In November of 2011, the Obama administration issued a policy statement through the Office of Management and Budget. That policy stated that the administration supported the passage of the NDAA, but had concerns over the provisions relating to detainee matters. First, the statement asserted that the Executive branch already possessed the legal authority to do everything codified within those sections under the Authorization for the Use of Force against those that committed 9/11. The statement then noted that placing these abilities into law might bring into confusion the rights of the President by asserting that Congress would also have the right to remove those powers. The statement also noted that asking the executive branch to put in place a set procedure for handling terrorists with automatic military custody would hinder the flexibility of law enforcement and military officers to best handle situations as they arise.

The Udall Amendment

That same month, an amendment put forth by Senator Udall would have repealed the sections of the legislation relating to arrest and indefinite detention of American citizens. In floor discussions, Senator Levin asserted that the Obama administration had asked that wording which stated that the legislation would not be applied to American citizens be removed.

Signing Statement

On New Year's Eve in 2011, President Obama signed the legislation into law. In doing so, he stated that the section relating to arrest and detention of US citizens broke no new ground and was unnecessary. The statement also asserted that the authority in the legislation was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then. Finally, the statements asserts that the Obama Administration will not authorize the indefinite military detention without trial of American citizens.

Court Injunction and Stay

In 2012, a lawsuit was filed by a number of prominent journalists and activists, including Christopher Hedges. This lawsuit challenged the constitutionality of the indefinite detention provisions of the NDAA, and specifically the wording that would allow the government to detain a citizen on the grounds that they were supporting al-Qaida. A New York district judge issued an injunction against the enforcement of those provisions in September of 2012 rejecting the Government's suggestion that American citizens can be placed in military detention indefinitely for acts they could not predict might subject them to detention. In other words, for aiding someone or something that they could not know was linked to terrorism.

Immediately, the Obama administration filed with an appeals court to block the injunction of the law and allow them to use those provisions. That stay was granted to them by the appeals court the following day.

Ben Swann Interview

Within days of the stay being awarded, President Obama was interviewed by an local reporter and asked why his administration was fighting to retain the privelages to detain US citizens indefiniltely when he had already asserted in the signing statement that he would never use those powers. The President responded by stating that he would not use those powers and that in the end, he believed that that court would rule "with him" to renounce the constitutionality of those powers. He reasserted that he would never use those powers, but did not elaborate on why his administration was fighting to retain them.

 

Policy Statement

On November 17, 2011 the Obama administration released a statement to Senator Carl Levin of Michigan noting the views of the administration relating to S 1867 - the Senate version of the legislation.

 

 

The Udall Amendment

On November 17, 2011 the Senate debated the Udall amendment. The discussion start with Senator Udall introducing his amendment describing the problems he has with the section relating to detainee provisions. He notes that setting the default case to military custody could cause problems with a civilian agency such as the FBI make the initial arrest. He also states that there is concern that the provisions in the legislation could be applied to US citizens captured on US soil. He again offers his amendment as a method to allow the executive branch to develop a procedure for dealing with detainees that Congress could then approve. He also references the policy statement put out by the Obama administration that opposed the detainee matters language.

After these statements, Senators Durbin and Levin ask Senator Udall a number of questions. One question was asked by Senator Levin questioning Senator Udall's position that the Obama adminstration was opposed to the section because it may have put American citizens at risk. Senator Levin states that bill originally contained language to ensure that the new provisions would not apply to US citizens and the Obama administration asked that it be removed.

 

Signing Statement

On December 31, 2011 President Obama signed the 2012 NDAA into law. When he signed the law, he also issued a signing statement on how he would interpret the law. In that signing statement, President Obama clarifies that the law does indeed allow for the arrest and indefinite detention of US citizens.

The President then asserts that he will not use the law for these purposes and that the inclusion of the language is counter to the Constitution and US traditions. This declaration is counter to Senator Levin's statements that the Obama administration requested that language which would have prevented the law from applying to US citizens be removed.

The main purpose of the statement relating to detainee provisions states that the language is not necessary as it codifies rights that the President already possessess. In other words, it is not necessary for Congress to affirm that the President has the right to detain US citizens captured on the battlefield as that right was already affirmed in the Hamdi case and others. What is not mentioned in the signing statement is that Congress has asserted that this bill now declares the homeland as part of the battlefield, which means that the President's right to detain enemy combatants indefinitely now applies to US citizens on US soil.

 

Injunction and Ruling

On May 16, 2012 District Judge Katherine Forrest issued a preliminary injunction against the indefinite detention provisions of the 2012 NDAA as part of a lawsuit filed by a number of journalists and activists. On June 6, the court clarified that the order did not merely apply to complaintants in the law suit, but to everyone. On September 12, 2012, Judge Forrest granted a permanent injunction against using the law.

 

Stay of Injunction

On September 16, 2012 the Obama administration requested that an appeals court freeze the injunction issued by Judge Forrest in an effort to continue the application of the law. That request was granted by a single federal appeals court judge that day. Politico reported that the administration called the injunction overbroad with dangerous consequences.

 

Interview with Ben Swann

On September 6, 2012 President Obama was interviewed by Fox 19's Ben Swann. Mr Swann asks why the administration is fighting against courts that found the indefinite provisions illegal. The President 

 

 

Sponsored and Cosponsored Legislation

This representative has not been identified as sponsoring or cosponsoring significant legislation related to this title.

References

[1] Website: Fox 19 Article: FULL INTERVIEW: Ben Swann interviews President Obama Author: Ben Swann Accessed on: 09/24/2012

[2] Website: Common Dreams Article: Civil Liberties Victory: Judge Halts Indefinite Detention Law Author: NA Accessed on: 09/24/2012

[3] Website: US Courts.org Article: District Judge Ruling with Injunction Author: Katherine Forrest Accessed on: 09/24/2012

[4] Website: Politico Article: Appeals court unblocks indefinite detention law Author: JOSH GERSTEIN Accessed on: 09/24/2012

[5] Website: Chicago Tribune Article: U.S. asks appeals court to freeze military detention ruling Author: Basil Katz Accessed on: 09/24/2012

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