< The Trouble With The Latest National Defense Authorization Act

Transcript

Friday, January 06, 2012

BOB GARFIELD:

Last weekend, President Obama signed the National Defense Authorization Act for 2012.  The law authorizes 662 million dollars in military spending and facilitates financial sanctions on Iran, but catching the most attention was a provision that appears to codify the military's capacity to indefinitely detain American citizens, even those captured on American soil.

For a variety of reasons, coverage of the new law has been filled with exaggeration and contradiction, in part because the statute itself is intermittently vague and contradictory, but also because the President signed the bill into law while proclaiming his administration will not use its provisions to detain American citizens.

The problem with that, as many an editorial has observed, is that nothing stops the future president from doing so. And we could have a different president in 13 months.

University of Chicago Law Professor Geoff Stone says that the scope of the provision is muddied still further by ongoing uncertainty as to who constitutes an enemy, what constitutes the war on terror and whether the new statute at all changes the status quo. Geoff, welcome back to the show.

GEOFFREY STONE:

My pleasure to be here.

BOB GARFIELD:

Let's start with the most obvious question. If the President so worries about the implications of the detention provision, why did he sign the bill at all?

GEOFFREY STONE:

It's a – it's a large complex bill that includes a great many provisions having absolutely nothing to do with these issues. And, as is often the case with legislation, it's a take it or leave it deal.

BOB GARFIELD:

The President offered us a signing statement. I think of it as an asterisk. Well, what's the asterisk say?

GEOFFREY STONE:

Well, the asterisk is basically the President saying, I'm going to sign this bill, but I'm signing it on the understanding that I will enforce it in a particular way. In this instance, basically the President said that he will enforce the statute in a way that will not allow the, the detention of American citizens or individuals otherwise detailed on American soil in the military system.

BOB GARFIELD:

A New York Times editorial made the situation look like one step shy of the Gulag Archipelago, asserting that the President has been invested with broad new authority to detain Americans and that Congress has taken away the administration's ability to spend money on typical criminal prosecutions when the suspect is a terrorist suspect. Is either of those assertions correct?

GEOFFREY STONE:

They're both pretty dramatically overstated. The statute, as enacted, made clear that nothing that is explicitly in these statutes changes existing law or authority.

What is problematic is we don't know what [LAUGHS] the state of the law was before that. We do know, for example, that the Bush administration detained Jose Padilla, who was an American citizen, brought him into military custody and held him there, claiming that it had the authority to do that because he was working in cahoots with al-Qaeda.

And but we've never had any determination of whether that was lawful.

BOB GARFIELD:

So let me see if I've got this right. In 2001, the Congress acted to give powers to then President Bush to fight the war on terror, and he interpreted that law liberally. But there has been no jurisprudence to clarify the extent of executive and military power in these things, so all this new law says is, yeah, whatever we had before, we have now. And yet, we don't even know what it is we have.

GEOFFREY STONE:

That's exactly right.

BOB GARFIELD:

How do we create a body of law to reinforce

our fundamental liberties and give the military and I guess the CIA the ability to lock up the bad guys?

GEOFFREY STONE:

Well, we have the same problem in this respect that we have in so many areas in Washington. That is, we have two competing visions of what good policy would be. One is that endorsed by the Republicans, who take a, - a a pretty Neanderthal – excuse the term — view of individual liberties in this context.

BOB GARFIELD:

[LAUGHS] You can't say "Neanderthal" and then excuse yourself.

GEOFFREY STONE:

Okay, then –

[OVERTALK]

BOB GARFIELD:

You're either saying Neanderthal or you ain't!

GEOFFREY STONE:

Okay. The Republicans take a fairly Neanderthal view of individual liberties in this context, and what they would want to enact in this legislation is something that would be extremely repressive and would absolutely push the limits of anything that we would recognize as due process.

And then you have the Democrats who take a more civil libertarian view on these issues. And the problem is that they can't find any common ground. And usually what happens is, is gridlock and nothing happens.

What's happened here is because these provisions were part of a larger statute, in which there were good reasons to pass the whole statute, they wind up putting in what amounts to gibberish.

BOB GARFIELD:

So what has been accomplished is fundamentally – nothing. But does that nothingness erode our civil liberties in the long run by virtue of the President having just participated in the charade?

GEOFFREY STONE:

It does in the sense that the existence of the statute adds some weight to an understanding of what the law should be, in favor of a more repressive interpretation of how we would deal with detention. So in that sense, I think it's fair to criticize the law and to criticize the President for signing it.

BOB GARFIELD:

The very fact that the President has acknowledged that there's an extreme interpretation of the law which violates at least his understanding of basic civil liberties, doesn't that mean that that possibility applies to all subsequent presidents?

GEOFFREY STONE:

Subsequent presidents could choose to interpret the law differently from the way President Obama has interpreted it. And, to the extent that signing the law leaves open those possibilities, it has danger.

On the other hand, the thing to remember is that even if the law had never been enacted,  subsequent presidents could have done the same thing.

BOB GARFIELD:

Geoff, as always, thank you very, very much for joining us.

GEOFFREY STONE:

My pleasure.

BOB GARFIELD:

Geoffrey Stone is a professor of constitutional law at the University of Chicago.