By Brion McClanahan
In 2012, Barack Obama signed the NDAA into law, a bill that suspended the writ of habeas corpus in the United States.
Not many noticed, and Obama himself tried to downplay the significance of the bill by issuing a “signing statement” designed to soften the blow to civil liberties.
For those that don’t understand the terms “signing statement” or habeas corpus, I’ll help.
A “signing statement” is a soft line item veto. Essentially, the president issues a statement saying that he disagrees with that portion of the bill and will not likely enforce it. These are illegal, at least according to the Constitution as ratified, and Obama made headlines when as a candidate he promised to never issue signing statements.
Habeas Corpus is one of the most important civil liberties in the Anglo-American tradition. It literally means “produce the body” and is a shield against arbitrary arrest and indefinite detention. If you are arrested, you have to be charged with a crime. The government can’t just lock you up and throw away the key without charges or a trial.
It is so important, the founding generation placed it in the Constitution–under the powers of the legislature.
That’s where Obama’s action is interesting. He did nothing wrong by signing the bill. Congress suspended habeas corpus. But the “Constitutional scholar” Obama should have vetoed the legislation as it allows the military to arrest anyone on “suspicion” of illegal activity.
Not evidence. Suspicion.
You know who else suspended habeas corpus for this reason? Lincoln. But at least to Obama’s credit, he allowed Congress to do the dirty work. This was the proper constitutional method. Lincoln did it unilaterally and then let Congress back it up later. And don’t be fooled by the Righteous Cause Mythologists who insist the “Davis suspended habeas corpus too!” Yes, the Confederate Congress authorized Davis to suspend the writ, but unlike Lincoln, Davis waited for legislative approval before acting.
It still doesn’t make Obama’s move necessary or legally sound, and it could very easily be used to detain any American citizen for, say, “domestic” terrorism. After all, that is what the NDAA targeted, terrorists.
If the general government is “suspicions” about your activity, the military can arrest you and hold you forever if they choose.
Why? Because the suspension of habeas corpus has been extended for the last decade.
This is why so many people are wary of the expansion of the government’s “watch” list for political organizations.
The most important speech to protect is political speech. Every Englishman knew it for centuries.
But we seem to have forgotten that lesson.
I discuss the suspension on episode 681 of The Brion McClanahan Show.