Is Obama Preparing the “Vote for Me or Mitt Will Indefinitely Detain You” Pitch?

Jesselyn Raddack catches Obama promising to start talking about civil liberties on the campaign trail.

So on every issue domestically we’ve got differences, and I haven’t even — we haven’t talked about the fact that my opponent feels comfortable with Washington making decisions about women’s health care that women, Michelle tells me, are perfectly capable of making themselves. (Laughter and applause.)

We haven’t talked about what’s at stake with respect to the Supreme Court. We haven’t talked about what’s at stake with respect to civil liberties. [my emphasis]

Raddack proceeds to demonstrate the many ways that talking civil liberties won’t help Obama.

But she’s missing one thing. As I noted during the debate on the NDAA, Obama’s apologists essentially adopted a “Vote for Obama or Newt (who was then leading the GOP pack) will indefinitely detain you” approach to the NDAA.

But don’t worry about this breathtaking assertion of unlimited presidential authority, [Ken] Gude suggests, because Obama’s not a big military detention fan.

The Obama administration in word and deed has made it very clear that the president does not believe it necessary or appropriate to use military detention authority in the United States. Both Omar Farouk Abdulmutallab and Faisal al-Shazaad were arrested after attempting mass casualty terrorist attacks inside the United States. In both instances, conservatives called for putting them in military detention, but in both instances, the Obama administration chose to use the criminal justice system.

There are just two problems with this (setting aside the grand claim that nothing can impinge on Presidential discretion on these matters).

First, we are less than one year from a Presidential election. In 389 days we’ll have another Presidential inauguration, whether of Obama again or someone else; Newt Gingrich currently leads GOP polls. It is absolutely irresponsible for Gude to assert that the codification of authority that Obama will sign into law doesn’t raise the specter of how other Presidents will use that authority.

Yes, a future president may interpret that authority differently, but that is both a fight for another day and one that will not hinge on the 2012 NDAA. So let’s put away both the rhetoric and the fear that the U.S. military will be detaining U.S. citizens captured in the United States.

I can only take this irresponsible claim to mean that it is a core part of Obama’s re-elect strategy to make sure a President who doesn’t embrace indefinite military detention of American citizens–as Newt would likely do–gets re-elected.

And Obama’s signing statement effectively reiterated this approach: Sure, the NDAA gives Presidents the authority to indefinitely detain citizens, but his Administration will chose not to do so.

Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. [my emphasis]

The only protection we have against the full force of the NDAA to indefinitely detain citizens, you see, is Obama’s continued service as President. We need him, in spite of all the other civil liberties abuses, or Mitt will throw us in military detention forever.

What is at stake with respect to civil liberties, Mr. President?


21 replies
  1. bsbafflesbrains says:

    Those who give up liberty for security will have neither. We have neither. I didn’t give mine up as much as it was taken.

  2. What Constitution? says:

    For as long as Obama’s DOJ continues to argue that American journalists lack standing to challenge the NDAA in court, Obama lacks standing to assert that his position on indefinite detention is any less threatening than Romney’s would be.

  3. bmaz says:

    @What Constitution?: Hate to say it, but the standing argument argued by Obama’s DOJ, whether you or I may like it, is not specious in the least. Not saying he HAS to make the argument, but is is supportable legally.

  4. spiny says:

    Sometimes you just have to wonder if Obama’s supporters will ever figure out how much we have lost because of the lack of opposition within the Democratic party to Obama’s radical positions. And, of course, we are back to the “I’m not as bad as the crazy Republican” argument that’s a sure turnout killer for the election.

  5. emptywheel says:

    @bmaz: Until they made the argument they did to Forrest in March. After that all arguments about standing go out the window.

  6. joanneleon says:

    I would *love* to see civil liberties discussed at length in one of the debates. I am not holding my breath. No way in hell he’ll answer questions about it, imho. Wow, people say he has no guts. It took a lot of guts to even bring up the topic of civil liberties.

  7. joanneleon says:

    I would *love* to see civil liberties discussed at length in one of the debates. I am not holding my breath. No way in hell he’ll answer questions about it, imho. Wow, people say he has no guts. It took a lot of guts to even bring up the topic of civil liberties.

  8. What Constitution? says:

    @ bmaz — First, please permit me to emphasize that Mike Trout would never hold an inadvertant typo against anyone, so I try not to, either.

    That said, the fact that there may be legally permissible arguments made does not mean those arguments are morally justifiable. I agree with you that the DOJ can, without ignoring court precedents, construct arguments which could, if accepted as persuasive in a court’s view, prevent the American journalists currently challenging the NDAA from being recognized as currently possessing “standing” to challenge that act. However, making such arguments requires the DOJ to ignore the consequences of that contention. And the consequences of that contention would be, and are, that any President – specifically including Obama and any successor president after Obama – would possess the legal authority under the NDAA to indefinitely detain American citizens, including but not limited to these journalists, journalists situated similarly to these journalists, or any other American citizen in the future. The judge who has heard these DOJ “standing” arguments has rejected them – in my view correctly and, as you have noted that you “hate to say” that other arguments exist, I actually believe you agree about this – but the fact that an appellate court might reverse doesn’t require predicting reversal or suggesting credibility or merit in the arguments that might be made in opposition to the existing court decision.

    The reason why Obama can’t claim he’s any different than Romney might turn out to be about the “indefinite detention of Americans” is, quite simply, because Obama caused the NDAA to be written the way it was written. The detention of American citizens was the topic of a proposed amendment which would specifically have provided that such authority was not purporting to be provided by the Act – it was the Obama administration’s objection to any such provision which resulted in the Act being silent with respect to that point, and that silence creates statutory ambiguity by its failure to restrict/sever such actions from the “confirmation” of authority otherwise articulated. So, under the law that Congress wrote, a president could order the indefinite detention of people — that’s the overbreadth problem with the statute as written (which is where the overbreadth problem is, that problem is not with the court’s injunction: the injunction is required by the scope of the legislation, not vice versa).

    Obama’s objection to a provision preventing indefinite detention of citizens was not based on a contention that either the Constitution or the AUMF would forbid that – to the contrary, Obama’s objection was affirmatively based on what can only be recognized as the Bush era “unitary executive” construct, specifically that the Congress should not interfere with the “President’s Article II rights” by purporting to limit executive “discretion” in the specific context of detaining people without charge. That is a massive, massive disservice to the Constitution [insert 40 pages here] but it is also precisely what Obama did in getting the NDAA passed: he insisted that Congress not “interfere” with the President’s wishes in this area, and he got Congress to codify an absence of congressional restriction.

    This being the situation, it is palpably disingenuous for Obama to suggest that his “signing statement” somehow puts him in any different or better stead than Romney would be. President Obama’s signing statement has no force of law whatsoever, it’s a speech. It would have no impact on President Romney, or President Biden for that matter, and it could be changed and dispelled by Obama himself at whim. It’s not law at all. And, as an added bonus, if the DOJ’s gossamer “standing” arguments had been accepted by Judge Forrest (who wisely didn’t buy them), that law would sit out there forever with no way to predict its scope and, thus, provide precisely the in terroram stifling impact which was the purpose of its drafters, Constitution be damned.

    Therefore, for as long as Obama instructs his DOJ to interpose “standing” arguments to try to prevent anyone from being allowed to challenge the constitutionality of the NDAA in court, Obama should not be heard to argue that the NDAA would be more “dangerous” in the hands of Mitt Romney than it would be in his own hands. Obama could easily have seen to it that Congress limited the scope of what it authorized a President to do, and Obama went out of his way to prevent that from happening. Obama went out of his way to prevent that from happening for the precise reason that he wanted the President to be able to decide whether and when to detain US citizens without charge. Since that’s a disgustingly unconstitutional motivation – hell, that violates Magna Carta, but who’s counting – it’s in my opinion really incongruous to offer Obama any moral cover for going this route.

    Not even Mike Trout should have the power indefinitely to detain US citizens without charge, that’s how strongly I feel about this. Justice is such a loaded word, but it’s still one we have to dredge up now and again. They haven’t taken that away from us yet, have they?

  9. jjk says:

    Michelle has to “tell him” that women can make independent health decisions? Could he get more patronizing? What an ass.

    Long time lurker, but I just had to jump in when I read that quote-

  10. harpie says:

    May be of interest:

    NDAA: The Biggest Election Issue No One’s Talking About

    […] That’s right: Regardless of who wins in November, your lingering notions of living in a country that is free and democratic can best be described as “quaint” and “wrong.”

    So considering that this law alters our concept of what it even means to live in a democracy, why is no one talking about it? Why does no one seem to care? […]

  11. scribe says:

    Tell it to that alleged Quds guy in Texas, spending a couple weeks detained on a military base without a lawyer or a judge.

  12. What Constitution says:

    @DWBartoo: You’re too kind, thanks. Gonna work on being less of an electron hog. More conciselyishness. Maybe even check in on my day job. Such good people here.

  13. Eric Hodgdon says:

    @What Constitution?: I’m in agreement with you.

    While I’m an ‘ordinary citizen,’ that is without a legal education, this legal system here in the USA appears to be able to allow anyone to do anything as long as the words are put correctly whereby they get a stamp of approval by someone in a black robe, serving the customer only. Or, as other ‘ordinary citizens’ might say, “It’s a farce.”

    The Constitution while intact visually by looking at it with one’s own eyes, seems to have 225 years of external fatty tissue and foreign material somehow attached making it morbidly obese.

    Mr. Obama and predecessors can go to hell for their treasonous activities and their 67 years of illegal Adventurism.

  14. stu says:

    bmaz/what constitution

    I rather enjoyed the standing discussion and I won’t weigh in due to time/space constraints, but I will add the following: DOJ lawyers were pretty adamant on one other point you haven’t mentioned; namely, the 2001 AUMF authorized the same detention powers codified in the 2011 NDAA. The journos’ lawyers did a great job attacking this lame argument in their briefs.

    our current potus has argued for the same and even more “unitary executive type powers” [than bush] since taking office – moreover, the current potus has used [without impunity] much stronger “unitary executive type powers” than bush would have ever dreamed of (probably not cheney tho). Think about the rampant drone bombing campaigns all over the glob, assassinations of american citizens, all the Big Bro stuff going on at NSA and homeland security, etc. etc.

    But I digress. Nope, anyone paying attention these past few years would have a hard time buying obama’s civil liberties pitch.

  15. x174 says:

    prezidential elections are grotesque and ridiculous affairs (by design).

    –>What Constitution?
    much thanks for the legalistic argument.
    didn’t think it was in the least verbose.
    elegent and terse, rather.
    (yes, i mean elegant not eloquent. elegant in the sense that the argument was pointed and relevant and informed without being argumentative repetitive and opinionated).

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