On Wednesday, President Barack Obama signed the 2013 National Defense Authorization Act, which outlines the Pentagon’s budget for the following year. Though the newest NDAA still allows for the indefinite detention of American citizens, the president had insisted in a signing statement for the 2012 NDAA that his administration would not use this power.
“I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens,” Obama wrote. “Indeed, I believe that doing so would break with our most important traditions and values as a Nation.” His signing statement for the new version of the law contained no such language.
But to the American Civil Liberties Union, the president’s word alone was insufficient. “President Obama has utterly failed the first test of his second term, even before inauguration day.” said Anthony Romero, executive director of the American Civil Liberties Union, in a statement. “His signature means indefinite detention without charge or trial, as well as the illegal military commissions, will be extended.”
In November 2012, Senators Dianne Feinstein, D-Calif., and Mike Lee, R-Utah, introduced an amendment to the 2013 NDAA which would ban the military from indefinitely detaining citizens without trial. The bill made it through the Senate by a vote of 67-29, but the conference committee stripped it from the final version of the bill without explanation.
Previously, the White House had threatened to veto the legislation due to a variety of other concerns, including language in the law which constricts attempts to transfer detainees out of the Guantanamo Bay military prison, thereby constricting any efforts to close the facility. In his signing statement approving the bill, the president said he had “serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists.”
Despite President Obama’s stated objections to American indefinite detention policy, his Justice Department has forcefully advocated for it in court. In September, the Obama administration appealed a court decision which enjoined the indefinite detention language in the 2012 NDAA. The U.S. Court of Appeals backed the administration up and reaffirmed its right to detain any citizen ”who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces.”
UPDATE: An earlier version of this article incorrectly claimed that the president’s signing statement for the 2013 NDAA included language about indefinite detention. In fact, that language was from the signing statement for the 2012 NDAA, and the 2013 signing statement contains no such language. We regret the error.