Obama signs NDAA with indefinite detention provisions —despite “reservations”

President Barack Obama on Dec. 31 signed the National Defense Authorization Act for 2012, with controversial provisions that codify into law indefinite detention of terror suspects. The act allows the president to use “all necessary and appropriate force” to detain any person, including US citizens, who “was part of or substantially supported al-Qaeda, the Taliban, or associated forces, under the law of war until the end of hostilities.” In a signing statement, Obama wrote: “The fact that I support this bill as a whole does not mean I agree with everything in it. I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation and prosecution of suspected terrorists… My Administration will aggressively seek to mitigate those concerns through the design of implementation procedures and other authorities available to me as Chief Executive and Commander in Chief, will oppose any attempt to extend or expand them in the future, and will seek the repeal of any provisions that undermine the policies and values that have guided my Administration throughout my time in office.”

Obama initially had threatened to veto the bill—but with military funding due to expire Jan. 2, he signed it, citing last-minute revisions Congress made at White House request before approving it two weeks earlier, which allow the president to waive the new detention authority. The president called those changes “minimally acceptable” and pledged: “I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation.” He added that he would “reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat.”

Critics in the human rights community were unsparing. “By signing this defense spending bill, President Obama will go down in history as the president who enshrined indefinite detention without trial in US law,” said Kenneth Roth, executive director of Human Rights Watch.

“President Obama’s action today 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,” said Anthony D. Romero, ACLU executive director. “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.”

The Secretary of Defense, the Director of National Intelligence, the Director of the FBI and the head of the Justice Department’s National Security Division have all said that the indefinite detention provisions in the NDAA are harmful and counterproductive. William S. Sessions, who served as FBI director under Presidents Reagan, Bush and Clinton, wrote in a letter to members of the conference committee working on the NDAA that the detention provisions “could pose a genuine threat to our national security and would represent a sweeping and unnecessary departure from our constitutional tradition.”

On Nov. 29 the Senate voted 38-60 to reject an amendment to the NDAA that would have removed provisions authorizing detention without charge. The amendment propsed by Sen. Mark Udall (D-CO), would have replaced those provisions with a requirement for a congressional review of detention power. The act includes a provision a bar to the transfer of detainees currently held at Guantánamo Bay into the US for any reason, including for trial. In the last 10 years over 400 people have been prosecuted in US federal courts for terrorism-related offenses. Meanwhile, at the Guantánamo military commissions during that same period, only six cases have been prosecuted. (Jurist, Jan. 1; WP, ACLU, Atlantic Wire, Dec. 31; NLG, Dec. 27; HRW, Dec. 21; Constitution Project, Dec. 9; ACLU, Dec. 5; ACLU, Nov. 29)

See our last post on the detention state.

  1. Not True
    Although the NDAA contains many, many provisions which are appalling, there is a popular myth that the NDAA has been amended to allow indefinite detention of US citizens. This is not true. In fact, the section that is quoted at the beginning of this article has a specific provision which states it does not apply to U.S. citizens. Section 1031, the proposed section which would have included US citizens, was never included. The NDAA itself is not new, and is signed yearly by the president. Although its a terrible, draconian bill, there was absolutely no notable changes regarding detention which Obama “signed” into law.

    You can read the bill yourselves online and verify this at opencongress.org.

    1. Um, actually it does seem to be true…
      If the generally annoying Glenn Greenwald is good for anything, it ought to be this kind of stuff, and he says the exemption for US citizens “appears to extend only to US citizens ‘captured or arrested in the United States.'” Please post a link to the text of the final version of the bill, but I have a hard time believing that every human and civil rights group in the country got it wrong.

      1. SEC. 1021. AFFIRMATION OF

        “(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.”


        1. Hence it does apply to US citizens
          Note phrase “who are captured or arrested in the United States.” The measure presumably does apply to US citizens who are “captured or arrested” outside the United States. I can’t think of any other way to read it.

          1. Did Chris Hedges read the NDAA?
            He just ostentatiously announced on TruthDig that he is suing Barack Obama over the NDAA (we’d love to know on what basis he has standing to do so), stating that: “The act authorizes the military in Title X, Subtitle D, entitled ‘Counter-Terrorism,’ for the first time in more than 200 years, to carry out domestic policing.”

            No, it doesn’t. The NDAA’s indefinite detention provisions are incredibly dangerous, but (as noted above) it doesn’t do what he says, and he is going to be laughed out of court.

            Nor, if the NDAA did do what he says (and if he had standing to challenge it), would it be “the first time” in US history. Lincoln tried to instate military detention of civilians accused of “disloyal activities” in the Civil War. As we noted a decade ago, when the Bush administration began claiming similar power, the Supreme Court ruled against Lincoln’s policy. Hopefully, it will rule against the new assertion of presidential power. But Hedges’ case, by not even challenging what the NDAA actually does, stands zero chance of acheiving this aim.

            Also, the National Guard is really part of the military, and it has been used for domestic policing several times (Los Angeles, 1993; Kent State, 1970; Watts, 1965; Ludlow Massacre, 1914, etc.). Not to mention the 1932 repression of the Bonus March by regular army troops under Gen. Douglas MacArthur. Not “authorized” by law perhaps, but it all happened.

            Spend some time in a library, Chris.

    2. N.D.A.A
      I do believe this affects affects so called american citizens…if some clause excludes ppl now..it will probably be upgraded later…But for the nieve…Research what it really means to be an american citizen…If u are not of the small population of indians that america has killed of an put on reservations..the only other way to be an american citizen is by being a caucasian here in america or of European decent…Hense terms like afro-American, though you were born IN the counrty.

  2. Living in a Society of Fear
    The NDAA only goes to further stifle our Constitutional Rights without the approval of the Americans, just as the Patriot Act was adopted WITHOUT public approval or vote just weeks after the events of 9/11. A mere 3 criminal charges of terrorism a year are attributed to this act, which is mainly used for no-knock raids leading to drug-related arrests without proper cause for search and seizure. The laws are simply a means to spy on our own citizens and to detain and torture dissidents without trial or a right to council. You can read much more about living in this Orwellian society of fear and see my visual response to these measures on my artist’s blog at http://dregstudiosart.blogspot.com/2011/09/living-in-society-of-fear-ten-years.html

    1. Living in a Society of Inaccuracy
      What do you mean “the Patriot Act was adopted without vote”? How do you think it became law? Congress passed it. Hello?

            1. I would agree, however….
              I would agree with you, however the Congress is supposed to REPRESENT THE WILL OF THEIR CONSTITUENTS. Meaning that we call, write, email our congressional representatives, and they are supposed to reflect the will of their constituents with the way they vote. The problem we are facing is that in many cases the Congress is making decisions based solely on making their friends happy so they can afford another election, and other factors that have nothing to do with doing the people’s business!!!!