On the eve of 2012, President Obama is facing a backlash from civil libertarians that is more widespread and intense than anything he's yet seen. He has previously been subject to complaints about his war on whistleblowers, the humanitarian and strategic costs of his drone war, the illegality of the war he waged in Libya, his use of the state secrets privilege, his defense of Bush-era warrantless wiretapping, and his assertion of the power to kill American citizens accused of terrorism. But news that Obama plans to sign rather than veto a bill enshrining indefinite detention into U.S. law and failing to exempt American citizens is provoking unprecedented ire.
The significance of the backlash is perhaps best understood by looking at what people and organizations who supported Obama's 2008 bid for the presidency are saying about his actions now. The head of the ACLU's legislative office insisted that Obama is poised to damage "both his legacy and American's reputation for upholding the rule of law," and noted that "the last time Congress passed indefinite detention legislation was during the McCarthy era."
Kenneth Roth of Human Rights Watch says that "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." Says the New York Times editorial board: "Mr. Obama refused to entertain any investigation of the abuses of power under his predecessor, and he has been far too willing to adopt Mr. Bush's extravagant claims of national secrets to prevent any courthouse accountability for those abuses. This week, he is poised to sign into law terrible new measures that will make indefinite detention and military trials a permanent part of American law. This is a complete political cave-in, one that reinforces the impression of a fumbling presidency."
The Center for Constitutional Rights published this lament:
President Obama made a choice with chilling consequences today when he announced he would not veto the NDAA despite the lack of change to provisions of the bill that make it even more difficult to shut down the prison at Guantanamo and make indefinite military detention without trial a permanent feature of the U.S. legal system.
Said Amnesty International: "Al Qaeda can claim comfort knowing that we are chasing our tails and eroding our values."
Andrew Sullivan gave voice to the betrayal felt by individual supporters of the president, calling his decision "another sign that his campaign pledge to be vigilant about civil liberties in the war on terror was a lie." There are so many pretty words Obama has spoken that help explain the betrayal civil libertarians now feel. Jon Stewart has highlighted a couple of examples. I'd suggest watching the 2008 town hall meeting that candidate Obama gave in Farmington, Indiana, where a woman in the audience prompted him to reaffirm his promises on civil liberties. He began with his frequent refrain about how "there should be no contradiction between keeping America safe and secure and respecting our Constitution," and went on to say this:
When you suspend habeus corpus, which has been a principle dating before even our country -- it's the foundation of Anglo American law, which says very simply, if the government grabs you, then you have the right to at least ask, 'Why was I grabbed?' and say, 'Maybe you've got the wrong person.' The reason you have that safeguard is because we don't always have the right person. We don't always catch the right person.
We may think this is Mohammed the terrorist. It might be Mohammed the cab driver. You may think it's Barack the bomb thrower. But it might be Barack the guy running for president. So the reason that you have this principle is not to be soft on terrorism. It's because that's who we are. That's what we're protecting. Don't mock the Constitution. Don't make fun of it. Don't suggest that it's unAmerican to abide by what the Founding fathers set up. It's worked pretty well for over 200 years.
Where happened to that guy?
At present, the GOP primary seems as if it's a race among a candidate who is atrocious on civil liberties - Newt Gingrich - one who is an unknown quantity, Mitt Romney, and one who is a champion of civil liberties, Ron Paul.
The conventional wisdom is that civil liberties groups will always back the Democratic nominee in presidential elections. As yet, it's unclear what attitude they ought to take toward the GOP nominee. But I don't see how they can support Obama's bid for re-election after four years of betrayals culminating in this atrocious defense bill and Obama's disregard for the civil liberties concerns it raises. It would be like the Tea Party supporting Gingrich -- a betrayal of everything for which they ostensibly stand.
At present, it looks like non-citizens of the United States are condemned to indefinite military detention if they're accused of terrorism, whether or not they're in fact "Mohammed the cab driver." There is, however, one pending effort to affirm what is now legislatively unclear: that American citizens cannot be held indefinitely without charges. Senator Dianne Feinstein is spearheading the fight, having introduced a simple bill (PDF) that reads as follows:
To clarify that an authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States and for other purposes.
Any civil libertarian still willing to support Obama ought to make it contingent on his signing that bill into law.