Congress Is Poised to Let Obama Imprison Anyone He Wants

Worse than the PATRIOT Act, new legislation would allow the president to detain Americans without evidence, charges, or a trial, as long as they're first declared terrorists

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"The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive." -- Justice Antonin Scalia 

President Obama, like his predecessor, claims that he is empowered to indefinitely imprison accused terrorists on his word alone. Thus the decade of warnings by the ACLU, the Center for Constitutional Rights, the Cato Institute, and other civil libertarians about excessive executive power.

Now Osama bin Laden is dead. The war in Afghanistan is ending. U.S. officials say al-Qaeda is on the brink of collapse. You'd think it would be time for Congress to rein in the Presidency Gone Wild, as has happened after past periods of executive war-making and attendant excesses.

Instead, everything is upside down.

Congress is poised to affirm that President Obama and his successors can imprison whomever they want, for as long as they want, on no authority but their own, so long as they first assert that the person in question is a terrorist. They needn't present evidence, or persuade a judge, or get a majority of votes from a jury. Just whispering "he's a terrorist" is enough. (See update at the bottom.)

Yes, even if the suspect is an American citizen.

As everyone acknowledges, innocents previously thought to be terrorists were among the detainees at Guantanamo Bay. Even in the criminal justice system, with its guarantees of due process, counsel, and appeals, and a standard of "guilty beyond a reasonable doubt," innocents are jailed. It is likely we've even executed innocent men. But we're prepared to trust that the president, routinely excoriated by his critics for making mistakes, won't ever make a mistake, even when permitted to act without any of the procedural safeguards known to prevent them.

The offending legislation is the National Defense Authorization Act of 2012. Aside from authorizing the indefinite military detention of American citizens, it would mandate that the military rather than the Justice Department would handle most terrorism cases, including plots hatched and attempted or carried out in the United States. In other words, it would militarize domestic law enforcement in the name of fighting terrorism, break with generations of precedent, and just have the military handle terrorism related stuff, even on U.S. soil.

Mandating the militarization of counterterrorism is a bad idea for all sorts of reasons. Sen. Mark Udall (D-Colo.), who tried and failed to strip the bill of its most egregious provisions, explains some of them here. As Andrew Rosenthal puts it, "The Pentagon, the intelligence community, the Justice Department and the White House oppose the detainee rules. The people who would have to carry out these boneheaded policies think they would actually weaken national security."

That is an accurate characterization.

Even more troubling, however, is the indefinite-detention-of-citizens angle.

Investing one leader with unchecked power (again, see update) so extreme and prone to catastrophic abuse is a needless approach best suited to a nation of ignorant cowards; needless because guaranteeing the rare American citizen accused of terrorism access to the courts hardly makes us appreciably less safe; ignorant because avoiding the always-corrosive effects of unchecked power is one of the oldest political lessons; and cowardly because it sacrifices so much, erasing even the distinction between being accused by the state and being guilty, in the name of safety from a threat that poses a statistical risk to the average American orders of magnitude less than dying of food poisoning.

Supporters of the bill will tell you, "But these are terrorists! We're at war with them! They have no civilian rights!"

To which critics say, "How do you know they're terrorists? Who determines that?"

"The president!"

"And if he's mistaken? Or worse, decides to target his domestic enemies with a false accusation?"

Senate supporters of the bill never talk about either possibility. 

Everything is so upside down that the cosponsors of this tyrannical legislation, Sens. John McCain (R-Ariz.) and Carl Levin (D-Mich.), felt compelled to write a Washington Post op-ed to defend its most controversial provisions, and as if to underscore the myopia of our political culture, Congress giving Obama the go-ahead to indefinitely detain Americans without due process didn't even rank as controversial enough to be mentioned in their piece! In fact, the op-ed states, "The bill does not tie the administration's hands in deciding how best to handle a detainee."

That was actually their focus: Whether another provision of this nearly approved bill does too much to take away the president's discretion. Obama has even threatened to veto the bill, if and when the Senate passes it, not because he is alarmed by its civil-liberties implications, but because the extraordinary powers it would hand him are in some cases less sweeping and more constraining than what he has asserted for himself via frustratingly secret Office of Legal Counsel memos. (For example, it would force him to keep some War on Terror detainees in military custody.)

Where is the Tea Party Caucus, the avowed champions of liberty and small government, the self-described "constitutional conservatives," the people so mistrustful of Obama that some of them say that he is deliberately trying to make the American people less free and lying about it?

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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