President Obama has reminded us on several occasions that what separates us from the rest of humanity and makes us “exceptional” is that we are a nation of laws and we live by the rule of law. What is omitted in this statement is that there are often times when the laws are destructive and dangerous.
In 2003, Congress conceded to President George W. Bush the power to involve the U.S. in military actions against Iraq. This was accomplished by passing the National Defense Authorization Act (NDAA) and was limited to Iraq.
The NDAA, which includes the budget for the military, is renewed every year and along with budgetary changes, provisions, which are not budgetary, are included in the bill.
During a Senate floor debate to clarify that the provision affirming the authority to detain persons captured in the conflict with Al Qaeda does not modify any existing authorities relating to the power to detain U.S. citizens or lawful resident aliens, or any other persons captured or arrested in the United States.
The Obama Administration then lifted its veto threat, and President Obama signed the 2012 NDAA into law expanding legislation, which allowed for the unlimited or indefinite detention of those, designated by the executive branch as “terrorists,” without charges or trials.
The bill that initially was not intended to include U.S. citizens, has now, in 2015, evolved and includes all peoples who are designated as “imminent” threats to the security of the U.S. As the ACLU states, “The bill now says that detainees may be brought to the United States for “detention pursuant to the Authorization for Use of Military Force (AUMF).” In plain English, that means the policy of indefinite detention by the military, without charge or trial, carried out here at home.
Top senators thought you wouldn’t notice. Behind closed doors, they wrote up new indefinite detention and Guantánamo provisions in the annual defense policy bill, and then waited 11 days to quietly file the bill.
Everyone should understand what is in this new bill before the full Senate makes a big mistake and paves the way for Guantánamo-style indefinite detention centers in the United States itself.
The new Senate NDAA:
Brings Indefinite Detention to the U.S. Itself: The bill now says that detainees may be brought to the United States for “detention pursuant to the Authorization for Use of Military Force (AUMF).” In plain English, that means the policy of indefinite detention by the military, without charge or trial, carried out here at home.
Bolsters Claims of NDAA and AUMF Indefinite Detention Authority:
The AUMF is the basis for the indefinite detention authority included in the NDAA that Congress passed nearly three years ago. Indefinite detention is wrong today and certainly cannot be sustained past the end of U.S. combat in the Afghan war. But passing a new Senate NDAA that relies on detention authority based on the AUMF, just as the U.S. combat role in the war is winding down, could be used by the government to bolster its claim that indefinite detention can just keep on going. Even when any actual U.S. combat is over.
Requires Report on Even More NDAA and AUMF Indefinite Detention Authority:
As if the government didn’t already have enough claims of indefinite detention authority, the Senate NDAA asks the administration to let Congress know what more indefinite detention authority it wants.
Tries to Strip Federal Courts of Ability to Decide Challenges to Harmful Conditions:
In a stunning provision, the Senate NDAA tries to strip federal courts of their ability to “hear or consider” any challenge related to harmful treatment or conditions by detainees brought to the United States. This provision tries to gut our system of checks and balances by cutting out the courts.
In a classic example of why it is never a good idea for a committee to legislate behind closed doors, the Senate NDAA includes language inadvertently stripping habeas rights from any Guantánamo detainee who is not moved to the United States. Habeas is the very fundamental protection of being able to have a judge decide whether it is legal or illegal to hold someone in prison. While this is almost certainly the product of sloppy drafting, the result squarely contradicts the Supreme Court’s decision in Boumediene v. Bush, in which the Court said Guantanamo detainees have a constitutional right to habeas.
Blocks Most Cleared Detainees from Going Home:
The Senate NDAA would block the transfer home of the vast majority of cleared detainees by imposing a blanket ban on transfers to Yemen, instead of continuing to allow the secretary of defense to make decisions on an individual basis. That would mean dozens of detainees cleared for transfer would remain trapped in limbo.
There is a right way and a wrong way to close Guantánamo. Charging and trying in court anyone who committed a crime – and sending anyone who isn’t charged with a crime back home or to another country – is the right way to close Guantánamo. Simply moving all of the bad Guantánamo policies to the U.S. itself is the wrong way.
The Senate NDAA gets it very wrong. We urge all senators to say “NO” to these provisions.