Obama Crowns Himself on New Year’s Eve

To prevent the U.S. government from behaving like a king, the drafters of the U.S. Constitution empowered an elected legislature to write every law, to declare every war, and to remove its executive from office. To further prevent the abuse of individuals’ rights, those authors wrote into the Constitution, even prior to the Bill of Rights, the right to habeas corpus and the right never to be punished for treason unless convicted in an open court on the testimony of at least two witnesses to an overt act of war or assistance of an enemy.


President Barack Obama waited until New Year’s Eve to issue an unconstitutional signing statement rewriting a law that candidate Obama had rightly condemned. The law is the most direct assault yet seen on the basic structure of self-governance and human rights. The National Defense Authorization Act (NDAA) is another major step on a steady and accelerating decade-long march toward a police-and-war state.


President Obama has claimed the power to imprison people without a trial since his earliest months in office. He spoke in front of the Constitution in the National Archives while gutting our founding document in 2009. He has claimed the power to torture “if needed,” issued an Executive Order claiming the power of imprisonment without trial, exercised that power on a massive scale at Bagram, and claimed and exercised the power to assassinate U.S. citizens. Obama also routinely kills people with unmanned drones.


The bill, as sent to the president, said: “Nothing in this section is intended to limit or expand the authority of the president or the scope of the Authorization for Use of Military Force.” In other words, Congress was giving its stamp of approval to the unconstitutional outrages already claimed by the president.


Then why create a new law at all? Well, because some outrages are more equal than others and Congress had chosen to specify some of those—and, in fact, to expand some of them. For example: “Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection b) pending disposition under the law of war.”


And this: “The disposition of a person under the law of war as described in subsection (a) may include the following: (1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.”


An exception for U.S. legal residents and citizens was kept out of the bill at President Obama’s request. So why did Obama initially threaten to veto the bill and again after it passed the Senate? One reason: the change made by the conference committee: “The President may waive the requirement of paragraph (1) if the President submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.”


The reference here is to military tribunals. The president—current and future ones—need not hand someone over even to a military tribunal if he [or she] chooses not to. That was the most power Obama could have transferred to the White House in this bill. But it was not absolute power and was therefore not good enough. Hence, the signing statement, the relevant portion of which begins: “Moving forward, my Administration will interpret and implement the provisions described below in a manner that best preserves the flexibility on which our safety depends and upholds the values on which this country was founded.” This is Bush-Cheneyspeak for “I will not comply with the following sections …despite signing it into law.”


After having persuaded Congress to remove an exception for U.S. legal residents, Obama has the nerve in the signing statement to assert, not that the law makes any such exception, but that he personally will choose to do so, at least for U.S. citizens. Future presidents may lock U.S. citizens up without trial, but Obama won’t do so. He promises: “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. 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 first two sentences above are highly unusual, if not unprecedented. Most, if not all, of Bush and Obama’s law-altering signing statements up to this point have not sought to clarify what a particular administration would choose to do. Rather, they have focused on declaring parts of the laws invalid. Usually, this is done in a manner misleadingly similar to the third sentence above. By claiming the power to interpret a law in line with the Constitution, Bush and Obama have each on numerous occasions asserted the view that the Constitution grants presidents far-reaching powers that cannot be restricted by legislation. If Obama had wanted to deny that this law could be applied to U.S. citizens (or legal residents), the above paragraph would look very different, although equally unusual in that it would then be rejecting power rather than claiming it.


Also note, Section 1021 applies to any detention and Obama only “promises” not to subject U.S. citizens to indefinite military detention. While locked away forever without a trial, you’ll be able to take comfort that yours is a non-military imprisonment. Also, remember that Obama claims and exercises the power to kill U.S. citizens or anyone else (arguably, at least as serious a violation of rights as imprisonment) and for that, he will use the military if he sees fit or even allow the military to operate freely. Also notice that legal residents are not included in the category of citizens.


Next Obama declares Section 1022 on military custody “ill-conceived.” His personal right to a waiver, won through the conference committee, was not enough. Obama insists on also erasing this section of law: “I reject,” he writes, “any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat.


“While section 1022 is unnecessary and has the potential to create uncertainty, I have signed the bill because I believe that this section can be interpreted and applied in a manner that avoids undue harm to our current operations. I have concluded that section 1022 provides the minimally acceptable amount of flexibility to protect national security.


“Specifically, I have signed this bill on the understanding that section 1022 provides the executive branch with broad authority to determine how best to implement it, and with the full and unencumbered ability to waive any military custody requirement, including the option of waiving appropriate categories of cases when doing so is in the national security interests of the United States.… I will therefore interpret and implement section 1022 in the manner that best preserves the same flexible approach that has served us so well for the past 3 years and that protects the ability of law enforcement professionals to obtain the evidence and cooperation they need to protect the Nation.” 


Obama goes on to reject several other sections of the law, including restrictions on his unlimited power to rendition prisoners to other countries. Among the notable rejections is this: “Sections 1023-1025 needlessly interfere with the Executive Branch’s processes for reviewing the status of detainees. Going forward, consistent with congressional intent as detailed in the Conference Report, my Administration will interpret section 1024 as granting the Secretary of Defense broad discretion to determine what detainee status determinations in Afghanistan are subject to the requirements of this section.”


In other words, U.S. prisoners held in Afghanistan will not be given even a formal pretense of a legalistic review of their status unless Obama and his Secretary of “Defense” see fit.


My chief regret is that we have not seen the major resistance to this we could have and, without any doubt, would have seen if Obama were a Republican. 


David Swanson is author of When the World Outlawed War, War Is A Lie, and Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union.