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In my post yesterday I mentioned that a ruthless future president could jail enemies without trial.  A couple of friends with short memories have asked me what that’s about.

It goes back to the National Defense Authorization Act of 2012 (NDAA), which President Obama signed into law on December 31, 2011.  Among other things, the Act authorizes the U.S. Armed Forces to arrest and detain indefinitely, without trial or due process, anyone suspected or accused of supporting al-Qaeda, or the Taliban, or “associated forces engaged in hostilities against the US or its coalition partners.”

The murky but chilling wording of the law even permits the indefinite military detention, without trial or formal charges, of a United States citizen who a president alleges is “a member of, or part of al-Qaeda or an associated force.”  The military of course has always been able capture and hold prisoners on a battlefield. But the NDAA, in effect, expanded the battlefield–and its rules of warfare–to include the U.S. itself.

The power to hold a prisoner indefinitely, without trial, is potentially more dangerous to democracy than NSA surveillance or any of the other civil rights controversies in the news today. All dictators, of the left or the right, rely on a common tool: the ability to arrest, detain and throw into prison, or just to “disappear,” anyone they consider a threat or a nuisance.  That power is the definition of a police state.

In his signing statement Obama pledged that he “will not authorize the indefinite military detention without trial of American citizens.”  But signing statements do not constrain future presidents. With this law on the books, an unscrupulous president could use it to suppress dissent, imprison opposition leaders, and throw American citizens into stockades for life, without charges, without a trial.

The Act makes a mockery of Obama’s own eloquent tribute to our “universal” rights, which include, in his words, “the right not to be detained by the state without due process; the right to a fair and speedy trial.” And by signing it on New Year’s Eve that year he guaranteed that it would get little attention in the media and in the country at large.

The provisions of the Act regarding indefinite detention are still in effect.

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