I've waited a bit to write on this indefinite detention thing for a few reasons. The first being that the language used in the legislation is questionable in some respects. For example, one of the relevant sections of the NDAA states that US citizens are exempt from the requirement of indefinite detention. I sat on this particular clause because it could be read that the "requirement" statement means that US citizens cannot be indefinitely detained. Another way of reading the statement is that US citizens cannot be required to be detained but that the option of doing so exists.
Indeed Obama's signing statement that his administration would not detain citizens makes the later reading more likely to be the intended meaning of the legislation. That should bother a lot of people.
One of the supreme ironies of this turn of events is that it was a president who was a constitutional scholar who signed this piece of legislation. One can read that in one of two ways:
1) Obama being so well versed in the Constitution knows better than the rest of us whether such a thing as indefinite detention is constitutional.
or
2) Obama knew full well that the indefinite detention part was unconstitutional and signed it anyway.
The later explanation is the most likely interpretation of events since firstly Obama has done clearly unconstitutional stuff before, the most recent being the war on Libya in clear violation of the Constitution as well as the War Powers Act. Secondly we have reports that Obama has indicated that he wished for future "rewording" of the NDAA to remove the kinda-sorta-maybe unconstitutional portions.
What we should be asking is why a US President who is under oath to defend the Constitution of the United States would sign a piece of legislation that he knows contains such an unconstitutional section? We know that the president does not have the authority to do a line item veto over legislation. That is not a bad thing given that such power would essentially allow the president to legislate from the White House. What the president can do is either sign the legislation or veto it. If there is so much support for a piece of legislation the Congress can overturn the presidential veto by a 2/3 vote in the House and Senate.
With that in mind, Obama had the option of vetoing the legislation on the grounds that he would uphold his oath of office and not trash the Constitution. If the Senate and House were so positive of the backing that the legislation had then they could have overridden the veto.
But Obama did not do this. Why?
Back in December of 2010 I wrote about the cave in cave in Obama had committedon the Bush tax cuts where I discussed the "ethics" of hostage taking. Indeed Obama had tipped his hand to the Republicans. The Republicans attached their wish for extended tax breaks for the rich to unemployment benefits. Once Obama blinked the Republicans and anyone with a long term interest in curbing constitutional restraints on the executive knew that all that they had to do to get the things that they wanted was to attach it to something that Obama cared for. I noted, likely on Twitter that this would be a future feature of Republican moves.
Lo and behold we have the Obamaratti who have forwarded this very concept to explain why Obama "had no choice". The "no choice" argument goes as such: Obama had to sign the military bill or the troops would not get paid. Obama can't mess around with soldier paychecks so he did the responsible thing. Ahh the old "Responsible Negro" argument. There has always been a strain of negro who have an affinity for being "responsible" in the face of racism.
Lets go back to the beginning of this post where I noted that he oath of office of the president explicitly demands the protection of the constitution. As a matter of fact members of the military are under the same requirement. There is no requirement that the president make sure the troops are paid. So Constitution trumps paycheck. The president, knowing the veto process should have done his job and protected the constitution by refusing to sign any piece of legislation that had the indefinite detention sections in it AND had the backbone to have followed through on his refusal (This under the assumption that Obama is not actually supportive of such legislation but is playing the good cop to the Republican bad cop because the public demands such a show). Those who want to give the executive the power to designate a person a terrorist (or friend of one) and on that say so have that person detained for as long as there are terrorists without judicial review, warrants or anything of the sort, knew that they could push this president of party that is regularly called out for being weak on terror by attaching it to a "support the troops" kind of legislation.
It's a pretty sad state of affairs when Obama supporters have to bend over backwards when they even bother to actually discuss the topic, to explain why their constitutional scholar and president couldn't do his job. But the people at Black Agenda Report have been consistent in their observations that the powers behind the scenes understood that having a Democrat in office doing these things would effectively silence those who would have been front and center if this was a president McCain or Romney.
The way I see it, Obama should have announced publicly that he would sign no such legislation. Should have vetoed it the minute it hit his desk and made another public announcement that the would uphold his oath of office and if the Congress wanted to trash the constitution he would not have his hand in it and they would have to override the veto. That would have put the spotlight on the members of Congress who would be vulnerable at re-election time, assuming the electorate hadn't already forgotten about this issue....or even cared all that much.
(17 years of informed commentary)
