Can a mundane defense authorization law create an Obama dictatorship? Many people on the political right and left have been alarmed by language in the 2012 National Defense Authorization Act (NDAA) that they argue authorizes the president to use military force to capture, detain, torture and kill Americans at home and abroad. The furor centers on Sections 1021 and 1022 of the law, which deal with detaining terrorist suspects. Specifically at issue is to what extent the law allows the government to treat American citizens like enemies of the state.
This dust-up is thick with irony, given that the Obama White House has gone out of its way to extend full constitutional protections to terrorists who have never set foot on U.S. soil. At the same time, President Obama has claimed the right to target Americans with deadly force overseas, though his legal team refuses to explain the basis for this extraordinary and unconstitutional power. The NDAA itself states that nothing in it changes existing law, but because Americans are not allowed to know what powers the president already has, such guarantees ring hollow.
All dramatics aside, no matter what the murky NDAA says or means, it cannot strip Americans of their constitutional rights. Chief Justice John Marshall laid out this logical principle in the 1803 case of Marbury v. Madison, which established the standard of judicial review. He wrote that if a law conflicts with a rule or right under the Constitution, “the Constitution is superior to any ordinary act of the Legislature, [therefore] the Constitution, and not such ordinary act, must govern the case to which they both apply.” This is a bedrock principle of American politics. Even if the most expansive reading of the defense authorization is correct and it does represent some kind of White House power grab, it doesn’t matter, because any such provision negating rights held by citizens would be struck down as unconstitutional once it was adjudicated.
There also is the matter of the law’s political context. Those who argue that the NDAA is some kind of enabling act for an impending Obama imperium must also explain how such a bill was passed by a divided Congress, particularly the conservative Republican-controlled House. If control was Mr. Obama’s objective, it would have been more sensible to craft the legislation during the two years when San Francisco Rep. Nancy Pelosi was speaker of the House, Democrats enjoyed a supermajority in the Senate and Mr. Obama was not so unpopular. He could have used those purported extraordinary powers to head off the “shellacking” he took during the 2010 midterm elections, assuming he thought he could get away with it.
The true test of the NDAA would be if Mr. Obama attempted to do what some people fear he might do, namely, begin a vendetta against his political opponents or others he wants to deal with “Chicago style.” But should we honestly believe Mr. Obama will soon order mass arrests and detentions of peaceful American citizens? That members of the military would carry out such orders, which go against all other laws and customs and the Constitution? That such actions would not be met with a flood of court cases, mass demonstrations, civil disobedience and active resistance? And all this would happen in an election year? It will take more than a scrap of paper to end freedom in America.