For as long as Obama’s DOJ continues to argue that American journalists lack standing to challenge the NDAA in court, Obama lacks standing to assert that his position on indefinite detention is any less threatening than Romney’s would be.

Sometimes you just have to wonder if Obama’s supporters will ever figure out how much we have lost because of the lack of opposition within the Democratic party to Obama’s radical positions. And, of course, we are back to the “I’m not as bad as the crazy Republican” argument that’s a sure turnout killer for the election.

I would *love* to see civil liberties discussed at length in one of the debates. I am not holding my breath. No way in hell he’ll answer questions about it, imho. Wow, people say he has no guts. It took a lot of guts to even bring up the topic of civil liberties.

@ bmaz — First, please permit me to emphasize that Mike Trout would never hold an inadvertant typo against anyone, so I try not to, either.

That said, the fact that there may be legally permissible arguments made does not mean those arguments are morally justifiable. I agree with you that the DOJ can, without ignoring court precedents, construct arguments which could, if accepted as persuasive in a court’s view, prevent the American journalists currently challenging the NDAA from being recognized as currently possessing “standing” to challenge that act. However, making such arguments requires the DOJ to ignore the consequences of that contention. And the consequences of that contention would be, and are, that any President – specifically including Obama and any successor president after Obama – would possess the legal authority under the NDAA to indefinitely detain American citizens, including but not limited to these journalists, journalists situated similarly to these journalists, or any other American citizen in the future. The judge who has heard these DOJ “standing” arguments has rejected them – in my view correctly and, as you have noted that you “hate to say” that other arguments exist, I actually believe you agree about this – but the fact that an appellate court might reverse doesn’t require predicting reversal or suggesting credibility or merit in the arguments that might be made in opposition to the existing court decision.

The reason why Obama can’t claim he’s any different than Romney might turn out to be about the “indefinite detention of Americans” is, quite simply, because Obama caused the NDAA to be written the way it was written. The detention of American citizens was the topic of a proposed amendment which would specifically have provided that such authority was not purporting to be provided by the Act – it was the Obama administration’s objection to any such provision which resulted in the Act being silent with respect to that point, and that silence creates statutory ambiguity by its failure to restrict/sever such actions from the “confirmation” of authority otherwise articulated. So, under the law that Congress wrote, a president could order the indefinite detention of people — that’s the overbreadth problem with the statute as written (which is where the overbreadth problem is, that problem is not with the court’s injunction: the injunction is required by the scope of the legislation, not vice versa).

Obama’s objection to a provision preventing indefinite detention of citizens was not based on a contention that either the Constitution or the AUMF would forbid that – to the contrary, Obama’s objection was affirmatively based on what can only be recognized as the Bush era “unitary executive” construct, specifically that the Congress should not interfere with the “President’s Article II rights” by purporting to limit executive “discretion” in the specific context of detaining people without charge. That is a massive, massive disservice to the Constitution [insert 40 pages here] but it is also precisely what Obama did in getting the NDAA passed: he insisted that Congress not “interfere” with the President’s wishes in this area, and he got Congress to codify an absence of congressional restriction.

This being the situation, it is palpably disingenuous for Obama to suggest that his “signing statement” somehow puts him in any different or better stead than Romney would be. President Obama’s signing statement has no force of law whatsoever, it’s a speech. It would have no impact on President Romney, or President Biden for that matter, and it could be changed and dispelled by Obama himself at whim. It’s not law at all. And, as an added bonus, if the DOJ’s gossamer “standing” arguments had been accepted by Judge Forrest (who wisely didn’t buy them), that law would sit out there forever with no way to predict its scope and, thus, provide precisely the in terroram stifling impact which was the purpose of its drafters, Constitution be damned.

Therefore, for as long as Obama instructs his DOJ to interpose “standing” arguments to try to prevent anyone from being allowed to challenge the constitutionality of the NDAA in court, Obama should not be heard to argue that the NDAA would be more “dangerous” in the hands of Mitt Romney than it would be in his own hands. Obama could easily have seen to it that Congress limited the scope of what it authorized a President to do, and Obama went out of his way to prevent that from happening. Obama went out of his way to prevent that from happening for the precise reason that he wanted the President to be able to decide whether and when to detain US citizens without charge. Since that’s a disgustingly unconstitutional motivation – hell, that violates Magna Carta, but who’s counting – it’s in my opinion really incongruous to offer Obama any moral cover for going this route.

Not even Mike Trout should have the power indefinitely to detain US citizens without charge, that’s how strongly I feel about this. Justice is such a loaded word, but it’s still one we have to dredge up now and again. They haven’t taken that away from us yet, have they?

May be of interest:

NDAA: The Biggest Election Issue No One’s Talking About

[…] That’s right: Regardless of who wins in November, your lingering notions of living in a country that is free and democratic can best be described as “quaint” and “wrong.”

So considering that this law alters our concept of what it even means to live in a democracy, why is no one talking about it? Why does no one seem to care? […]

@jjk:

hey, good for you for stepping up!

your point is very important.

@What Constitution?: I’m in agreement with you.

While I’m an ‘ordinary citizen,’ that is without a legal education, this legal system here in the USA appears to be able to allow anyone to do anything as long as the words are put correctly whereby they get a stamp of approval by someone in a black robe, serving the customer only. Or, as other ‘ordinary citizens’ might say, “It’s a farce.”

The Constitution while intact visually by looking at it with one’s own eyes, seems to have 225 years of external fatty tissue and foreign material somehow attached making it morbidly obese.

Mr. Obama and predecessors can go to hell for their treasonous activities and their 67 years of illegal Adventurism.

prezidential elections are grotesque and ridiculous affairs (by design).

–>What Constitution?
much thanks for the legalistic argument.
didn’t think it was in the least verbose.
elegent and terse, rather.
(yes, i mean elegant not eloquent. elegant in the sense that the argument was pointed and relevant and informed without being argumentative repetitive and opinionated).
nice.