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Semiformalishmaybe

Thoughts on NDAA2012

A few thoughts on the National Defense Authorisation Act of 2012:

I haven't commented publicly about this because I feel it's been adequately covered by the standard sources. The NDAA for 2012 contains very troublesome antiterrorism provisions, provisions that stand at odds to some of the better parts of American government: our philosophy of jurisprudence. It's not entirely accurate to think that we haven't faced challenges like this before, in that during times of the revolution we were facing (really making) hostile action on our (British colonial) soil, and dealing with (and making) terrorist attacks. Britain was a state actor in the full sense of the word though, America was not, and America's military tactics violated established traditions of war. Nontheless, because our revolution was significantly about incomplete civil traditions in the colonies, proto- and early- americans were sticklers for civil liberties, doing trials even in cases where in modern times we no doubt would prefer military-style jurisprudential action. This was not a less dangerous time; Britain represented an existential threat to the revolutionaries, and yet we remained civilised and kept to our traditions. The NDA2012's anti-terrorist provisions undermine our traditions by providing for indefinite detention without trial for citizens and foreigners alike (personally, I don't think foreigners deserve significantly different treatment in this regard), permitting it for US citizens and requiring military custody for others. It also permits this in the United States.

Obama signed the bill, adding a signing statement that he did not intend the provisions to be under effect during his administration. This obviously fails to be useful for preserving our traditions as it still permits later administrations to exercise these powers.

Why would he do it? A NDAA is required every year to fund various important government agencies. These typically involve some political struggle and grandstanding, and a failure to permit one to go through presumably would have highly negative effects. Obama might've decided to stick with his initial plan to veto any bill that contained this, but at a great political and national cost. Was it the right thing to give in on this? That's a complex question of political judgement.

Obama is a scholar on constitutional law; we might be more bothered that he would sign this than that congress would pass it. However, we might believe or hope that the controversial portions will be struck down by the Supreme Court (now or later) for being unconstitutional. Can we count on that? Is it damaging to keep tossing things like this at the Judiciary and see what they're willing to toss out?

If this remains part of our law, it's very troubling.

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I will note that the passed version of the bill does not appear to apply to US citizens (not that this makes it acceptable.) In particular, they tacked on a clause of the form "whatever it looks like this bill does to American citizens, we didn't mean that; this bill does not change anything about the handling of American citizens." As far as I'm aware that clause does have the desired effect (and if you read the ACLU's press releases carefully, they did stop referring to indefinite detention of citizens, although they did not hilight the change.)

Edited at 2012-01-11 03:36 pm (UTC)
The distinction between the rights of American citizens and noncitizens under the American justice system is an underdeveloped concept, but I am very unhappy to have it develop this way. Particularly because if both the CIA and MI5, for example, operated under these rules they could presumably arrange to detain each other's citizens. Do we not owe Brits in our country due process? Do we not owe Chinese in our country habeas corpus?
In point of fact, it is generally believed that exactly the kind of arbitrage you are referring to is used in intergovernmental agreements to spy on each other's citizens. (Search for UKUSA.)