Law will allow indefinite detentions without charge or trial, even for American citizens

The Obama administration is supportive of the defense authorization bill, which includes a provision that would codify a system of military prisons to indefinitely detain terrorism suspects without charge or trial, including American citizens caught on U.S. soil.

Weeks ago, the administration threatened to veto the bill on the grounds that those provisions “mandat[ing] military custody” amounted to a “restriction of the President’s authority” to choose what to do with terrorism suspects. No mention of the disintegration of the fifth amendment’s due process clause appeared in the administration’s objection.

In response to this veto threat, the Senate revised the provisions mandating military custody and inserted the option of a waiver for American citizens; that is, the Executive branch would be allowed to waive the requirement to deprive suspects of their constitutional rights at their discretion.

As revealed in the Senate deliberations last week, the Obama administration itself requested the principal authors of the provision – John McCain and Carl Levin – to include language authorizing due-process-free military custody for American citizens. The initial threat of veto was apparently nothing more than political theater on the part of the White House.

The latest version of the bill passed 93-7 in the Senate, and is expected to receive broad support in the House. Both chambers of Congress are expected to vote on the bill Wednesday and Thursday, so without the President’s veto the legislation is set to become law this week.

“If President Obama signs this bill,” said Laura W. Murphy, director of the ACLU Washington Legislative Office, “it will damage both his legacy and America’s reputation for upholding the rule of law. The last time Congress passed indefinite detention legislation was during the McCarthy era and President Truman had the courage to veto that bill. We hope that the president will consider the long view of history before codifying indefinite detention without charge or trial.”