Three days ago on July 17th, the Second Circuit Court of Appeals regranted the Obama Administration the power to indefinitely detain anyone accused of terrorism without due process, charges or even the right to a lawyer[i] Last year the Constitutionality of Section 1021 of the National Defense Authorization Act (NDAA) of 2012 that gives them this power was contested by a group of journalists and human rights activists, including Chris Hedges and Noam Chomsky, who filed suit against the administration and members of Congress, and in May of 2012 the Southern District of New York imposed a preliminary injunction on the law. The Obama administration’s latest victory comes after successfully appealing this injunction on the basis that the plaintiffs lacked “legal standing” to challenge it.[ii] The law also applies to those accused of providing support to terrorists and as I reported in December of last year, “material support to terrorists” has an incredibly broad legal definition, which can include communication with terrorist groups for journalism and peacekeeping efforts.
Since running for office, Obama has completely reversed his public position on this issue. On September 8th, 2008 in Farmington Hills Town Hall, Michigan Obama told the crowd, “When you suspend habeas 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, “Hey, maybe you’ve got the wrong person.” The reason you have that safeguard is because we don’t always catch the right person. We may think this is Mohammed the terrorist, it might be Mohammed the cab driver. You might think it’s Barack the bomb thrower, but it’s 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 un-American to abide by what the Founding Fathers set up. It’s worked pretty well for over two-hundred years.”[iii]
So what happened to that “fundamental principle” of Habeas Corpus? Not only has the administration violated this principle but it has written a “kill list,” of individuals suspected of involvement with terrorism. These individuals are killed via drone strike without warning, let alone a trial or lawyer, and many have been killed, including children, without having any involvement in terrorism. The NDAA of 2012 Obama signed also prevented the closure of Gitmo, which he has been promising to close throughout his term.
Indefinite detention without trial violates the Fourth Amendment that prohibits unreasonable search and seizure, the Fifth Amendment that prohibits imprisonment “without due process,” the sixth Amendment that provides accused with a right to counsel, and the fourteenth amendment’s due process clause. But none of this swayed the appeals court.
Despite Obama’s lofty campaign promises of “hope and change” and respect for civil liberties, he has proven to be, like every other President before him, to be a figurehead for US imperialism and hegemony and little else. The Courts decision to regrant his administration the power to indefinitely detain individuals without trial is significant but not surprising and should be fought relentlessly as it can be applied to anyone for reasons that have nothing to do with terrorism. Political dissidents and humans rights activists the state doesn’t like can easily be labeled as terrorists and swept away with little recourse and this ought to concern everyone who values free speech and their relative freedom.
Excerpt from speech at about 3:53.