The language of sections 1021 and 1022 of the Act shreds the First Amendment guarantee of free speech and Fifth Amendment guarantee of "due process" protection against government abuse in legal proceedings, as in the right to a jury trial.
Last March in a NY federal court, the two provisions were challenged
by a group of distinguished journalists including Chris Hedges, Noam Chomsky and Daniel Ellsberg. In May, U.S. District Judge Katherine Forrest issued an injunction
, preventing the government from enacting the NDAA's "unconstitutional" provisions.
It gets confusing on August 6, when Obama administration lawyers quietly challenged the injunction. This tells us the White House does in fact wants enforcement of the worst provisions of the law. But strangely, Obama called his own legal assertion into question the below video.
Reporter Ben Swann asked President Obama why administration lawyers are fighting the injunction. Obama vacillates, saying his "first job is to keep the American people safe". But then, Obama implies he opposed the idea of detaining US citizens, having the provision in the bill held hostage by Congress in an otherwise vital defense funding bill. Obama's explanation:
"...we've got some bad guys who are down there who we may not be able to try in a traditional court but have pledged to try to hurt Americans. That's something we inherited, we're dealing with, and it's complicated."
Complicated, apparently because there is no evidence against many of the 'indefinite detainees'. But even worse, some could in turn implicate the US military in human rights abuses
were they to be allowed the "platform" of a trial.
Obama on the one hand says he is protecting us, but before it slides past us, let's note that Obama's first duty is not
to keep the American people safe - as the Commander in Chief, he is supposed to send Americans into harm's way in order to carry out his actual first duty
, spelled out in Article II Section 1
of the Constitution, found right in the hallowed oath of office:
"I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
That's a bit different. The President continues, noting he feels provisions 1021/1022 should not apply to American citizens:
"...on the other hand, what I've also said is that a US citizen can never be subject to that kind of detention. Congress disagreed with me, and I didn't want us not to be able to finance our military and pay our soldiers and our troops. So I signed this bill."
It's true that Congress wanted this bill, breezing through The House 283-186 and steaming through the Senate 93-7, with only the following Senators opposed:
Sen. Thomas Coburn [R-OK]
Sen. Thomas Harkin [D-IA]
Sen. Mike Lee [R-UT]
Sen. Jeff Merkley [D-OR]
Sen. Rand Paul [R-KY]
Sen. Bernard Sanders [I-VT]
Sen. Ron Wyden [D-OR]
This left Obama, a former Constitutional law professor to defend Americans' guaranteed right to a jury trial. Obama told Swann he meant to, but because he was hustled by Congress, he'd have to include a (non-binding) signing statement and then he would kick it on over to the judiciary:
"...but what I also said was look, I'm never going to use this power and what I suspect is the courts are going to agree with us over the long term that that is not something that you can use when it comes to US citizens."
If it were true the President opposed the provisions, he should have been pleased with Hedges v. Obama, the immediate challenge to the law filed by reporters concerned they could be thrown into a gulag for "associating" with terrorists just by working on a story.
Judge Forrest, an Obama appointee, asked administration attorneys if anyone had been detained under provisions 1021/1022 after she issued the injunction. Obama's lawyers would not state
whether the government had complied or not. Judge Forrest then warned that she would hold the United States government in contempt of court for violation of her order.
So why is Obama telling us on TV he wants the provisions struck down in court while he is trying to have them upheld in actual court filings? And why is there so much confusion and schizophrenia on this issue? Here's why:
Senator Carl Levin, chairman of the Senate Armed Services Committee, tells us
the NDAA never altered the rights of US citizens, because language elsewhere in the bill affirms nothing in the bill changes the rights of American citizens. Besides this, Sen. Diane Feinstein's amendment to exclude US citizens was approved 99-1, providing face-saving political "cover" for every Senator (except John Kyl).
Levin here is saying not to worry that provisions 1021/1022 of the NDAA are worded so they seem to include US citizens. Yet Levin's website also quotes
the Supreme Court ruling in Hamdi v. Rumsfeld
that says 'there is no bar to this nation's holding one of its own citizens as an enemy combatant.' The Hamdi
ruling upheld portions of the 2001 AUMF granting the Bush administration rights to identify and detain 'enemy combatants'.
It's since been a spectacle watching the Obama administration argue in favor of detention provisions while trying to differentiate his administration from Bush's
, for example dropping the Article II "war powers" argument and relying instead on the AUMF and international law to justify detentions.
Obama also seeks credit for banning torture and relying more on drone strikes as a "common sense" approach to forestall even bloodier ground war offensives. He trumpets a selective, case-by-case approach to Middle East conflicts, such as Libya where we bombed regime forces and Syria where we provide only "non-lethal" assistance - otherwise we may be fighting alongside al Qaeda elements. Complicated indeed!
The President claims our elimination of al Qaeda leadership has been key to the drawdown in Afghanistan that will allow us to withdraw forces completely by 2014. But the extent Obama has gone to strains Constitutional credulity - for example, seeking civilian courts in some cases while going "kill list" in others. Worse still, Obama has redefined 'combatant'
to include any military age male located in a designated 'signature' zone - meaning we assume guilt and kill young men, exonerating them only if countervailing evidence is presented posthumously
Then too, the definition of 'militant' has been creatively doctored, reducing the total number of innocent civilian bystanders killed in strikes by coalition forces, simply by calling them something else.
Indiscriminate killing and official cover-ups of civilian deaths were exposed when whistleblowers leaked footage proving
Apache helicopter gunners were fully at ease shooting first and asking questions later. Though this happened under Bush, Obama has sought to punish the whistleblower rather than the soldiers laughing as innocents were shot.
Attorney General Holder has also redefined a few terms, claiming "due process" in the Constitution no longer refers to judicial due process, rather a review by unaccountable government or military officials in agencies with long histories of getting it completely wrong.
Swann then asked Obama about the power of any President to place US citizens on a "kill list", referring to Anwar al-Awlaki, a US citizen infamous for anti-American speech which inspired individuals such as the Ft. Hood shooter, the "underwear bomber" and the Times Square bomber to "self-radicalize
Awlaki admitted having direct contact with these disciples, but cleverly denied any role in any specific attack, mindful of his citizenship and the difference between insurrection, which carries a maximum penalty of 10 years, and more serious capital conspiracy. It didn't matter to Obama - Awlaki was blown to bits last September
by a drone strike in Yemen.
Awlaki's estranged American son was killed a month later in a separate drone attack, leading critics to question
the criteria for placement on the "presidential kill list". Awlaki's father, Nasser al-Awlaki, had attempted to get a court injunction to prevent the US government from killing his son after the President's "decree" was made public.
Now, Awlaki is suing
Defense Secretary Leon Panetta, CIA Director David Petraeus, Admiral William McRaven, head of US special operations and Lt. Gen. Joseph Votel for the extra-constitutional execution of his son and grandson, as well as another naturalized US citizen slain in the strikes who worked on Awlaki's newsletter.
Obama didn't want to discuss specific cases like this, telling Swann his administration hadn't confirmed any of the media narratives regarding the Awlaki killings, and adding "I don't talk about our national security decisions in that way".
Simply put, the public does not get to know. President Obama did however turn the interview into a campaign pitch, essentially telling Swann that if we think he's bad, Romney and "the other side" is much worse. While this is true - Romney has rehired over a dozen Bush-era neocons as foreign policy advisors as he calls for war with Iran - it doesn't mean voters need to support Obama either.
As a disillusioned 2008 supporter of Obama, I'd say his biggest mistake was ignoring the Constitution. What a surge of power it must be to rain death from the sky, teaching our enemies a lesson. No one could have predicted the corrupting pressures put on a US president by lawmakers, advisors, military wonks, lobbyists, foreign states, defense industry shills and media propagandists - except perhaps the founding fathers.
They had the wisdom and foresight to very clearly and succinctly instruct every incoming president to remember that our Constitution is not "just a piece of paper".