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United National Antiwar Coalition (UNAC) Conference, Stamford, CT March 25, 2012 Selected audio from plenary sessions and panel discussions

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Breaking Campaign Pledge, Obama Signs Indefinite Detention into Law

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Posted Jan. 11, 2012

Interview with Shahid Buttar, executive director of the Bill of Rights Defense Committee, conducted by Scott Harris

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On the last day of 2011, President Obama signed the 2012 National Defense Authorization Act, which mandates that all accused terrorists be indefinitely imprisoned in military rather than in the civilian court system. But most alarmingly, the measure also empowers the current, and all future presidents, to indefinitely imprison U.S. citizens and non-citizens suspected of engaging in terrorism, without charge or trial.

As he signed the bill, President Obama issued a signing statement saying that he had "serious reservations" about the indefinite imprisonment provisions. But the statement only applies to how Obama would apply the law, and will not be binding on his successors in the White House. But Michigan Democratic Sen. Carl Levin disclosed that the White House had objected to earlier efforts to insert language in the bill that would have specifically exempted U.S. citizens from the indefinite detention provision.

Ten years after the U.S. opened its prison for terrorist suspects at the Guantanamo Bay U.S. Naval base in Cuba, other provisions in the National Defense Authorization Act will place obstacles in the way of closing the facility, which President Obama pledged to do within a year of taking office in 2009. Further, the measure effectively prevents the release of 89 men held in Guantanamo who have been unanimously cleared by all levels of U.S. law enforcement and intelligence agencies. Between The Lines’ Scott Harris spoke with Shahid Buttar, executive director of the Bill of Rights Defense Committee, who discusses his objections to the National Defense Authorization Act’s indefinite detention provisions and effective ways in which grassroots activism can overturn the law.

SHAHID BUTTAR: The detention provisions center on two sections of the bill, one of which requires military detention without trial in the event of accusation, and that section is walled off from applying to citizens. The other section allows military detention without trial, and that is not limited in the sense that it can apply to citizens. President Obama, to his credit, when signing the bill – which I absolutely oppose and think was a constitutional travesty, especially from a constitutional law professor – he did announce a signing statement. But it's a very limited help. He basically said in his signing statement that he in his administration, will not use the detention provisions with respect to U.S. citizens, but there's nothing to keep the next president from choosing otherwise.

And that's the danger with passing laws like this, to paraphrase the words of Supreme Court Justice Robert Jackson in a seminal case from the 1950s exploring the limits of executive power: "Executive power is like a loaded weapon lying around for some future president to find an excuse to use it or to come up with one." And the danger of signing into law a bill that entitles the government to deny Fifth Amendment rights to due process, Sixth Amendment rights to trial, to through that power infringe on First Amendment rights of speech and assembly and Eighth Amendment rights to be free from cruel and unusual punishment. It is easily the worst thing that has happened to the Constitution in the last 10 years – and I say that including the Patriot Act. I do think this was substantially worse. And one of the worst things about it is that most Americans have never even heard about it, because there's been essentially a corporate media blackout with respect to these concerns.

BETWEEN THE LINES: Now, I've heard there's at least one U.S. senator that said he was ready to put in a provision that would take U.S. citizens out of indefinite detention provisions altogether, but the Obama administration rejected that option, giving you the impression that the White House is talking out of both sides of its mouth, saying in the signing statement they wouldn't apply it, but apparently, they didn't want to rule it out legally through putting some plank in the legislation that would have prohibited it.

SHAHID BUTTAR: Yeah, one of the problems with a secret process – and that's what led to this bill being passed – was an entirely secret process with not even a single congressional hearing. One of the problems of the secret process is that it gets really hard to pin the tail on the donkey. And so Sen. Carl Levin, D-New Mexico, chair of the Armed Forces Committee, who introduced the bill and is its principle proponent, he alleges without support – though there's no document on the public record to know who said this – he claims the administration did not want to go so far as to excluding citizens from the detention provisions. Now many members of Congress have actually attempted to assert that position. Sen. Mark Udall, D-Colo., and Sen. Diane Feinstein, D-Calif. have each taken that position, Sen. Patrick Leahy, D-Vt. the chair of the Judiciary Committee, has taken that position. So you have the chairs of the Intelligence and Judiciary Committees both backing the idea that citizens should not be subject to these powers. And they've backed a bill, the Due Process Treatment Act that's been introduced in the Senate, and the corresponding bill in the House. Neither of them will move with the same alacrity that the Defense Authorization Act did, however, because they are not "must pass" bills.

Again, the secrecy with which this process happened is maybe not as offensive as the subject matter of the bill, but they are both very offensive and they both present many reasons to be very concerned both for the future of the republic, but also to get down to what that means – essential liberty that has enabled a civil society of which our nation has long been proud and which has long inspired the rest of the world to follow our example.

BETWEEN THE LINES: Shahid, I imagine you and your staff at the Bill of Rights Defense Committee have been talking with other civil liberties groups around the country to figure out some strategy how to most effectively challenge and overturn these provisions that codify indefinite detention for Americans and non-American citizens. Where are things headed? Is this something that will eventually be decided by the Supreme Court, you think?

SHAHID BUTTAR: I don't think so. Actually there's a least three different tracks on which the challenges will proceed. There will be a litigation track, there will be a policy track, which is to say the bills in the Senate, the House and there will certainly be a lot of opportunities for people to voice their support to their congressional representatives to support those bills, to again make clear and change the law so that citizens are not subject to indefinite detention. And then third, there's a grassroots track. The key I think is always, in any policy area, is grassroots action. And it's important for people to raise their voices in through any channels available, whether that's shooting a YouTube video with your friends in a satire, posting that to get the word, or whether that's visiting your congressperson in their office when they're back in your district, whether that's writing an op-ed, or whether that's staging a protest.

One opportunity we'll be pushing a lot, is the opportunity to seek symbolic resolutions from city councils and state legislatures to keep the issue in the press and to generate a groundswell for a legislative fix to repeal the detention provisions of the NDAA. While Congress may be out to lunch and the executive branch may be off the rails, we the people of the United States are still sovereign. We have a lot of opportunities to raise our voice at the layers of government while we still have a voice.

Find links to additional information and analysis about indefinite detention issues at the Bill of Rights Defense Committee website, www.BORDC.org

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