While it’s known that the US has used indefinite detention of suspects in its “war on terror”, Congress has voted to make the same treatment legal for US citizens apprehended within the US.
The House of Representatives passed the 2012 National Defence Authorisation Act (or NDAA) on Wednesday and Senate approved it (86 to 13) on Thursday. But the Senate had already passed one version of the bill on December 1, with 93 votes in favour of and seven against – a remarkable margin.
The NDAA, which includes the 2012 $662bn military budget and more. But civil liberties advocates are concerned over a section in the legislation that deals with the detention of civilians by the military.
Provisions in the bill codify an approach that allows for endless detention of US citizens and non-citizens picked up anywhere in the world. They also gives the US military the option to detain US citizens suspected of participating or aiding in terrorist activities without a trial, indefinitely.
A person can be detained “under the law of war without trial until the end of the hostilities”, the bill states. The hostility in question here is the “war on terror”, and at the moment, it seems to have no end.
Attempts were made by several senators to strip the bill of that provision, but those attempts failed. Indeed, most of those who fought to have the provision removed from the bill – such as California’s Senator Diane Feinstein and Colorado’s Senator Mark Udall (both Democrats) ultimately ended up voting in favour of the bill.
Al Jazeera tried to contact nearly 30 senators from both sides of the vote (including co-sponsors senators John McCain and Carl Levin) but none seemed to be willing to talk or to answer questions about why they either voted against the provisions or, alternately, why they feel they are necessary and why the US justice system is inadequate to deal with terrorist suspects.
Where Obama stands
Under pressure from the White House, Congress tweaked the bill on Monday, altering it to say that the military cannot interfere with FBI and other civilian investigations and interrogations. The revisions also allow the president to sign a waiver moving a terror suspect from military to civilian prison.
For weeks, the White House has been expressing concern over the bill. A November 17 statement from the Executive Office of the President rejects codification of such detention authority and reads that in its current form, the provisions, “disrupt the Executive branch’s ability to enforce the law” while “inject[ing] legal uncertainty and ambiguity that may only complicate the military’s operations and detention practices”.
President Barack Obama had earlier threatened a veto of the bill.
But Aziz Rana, a professor of Constitutional law at Cornell University, said the Obama administration’s approval of the assassination of terrorist suspect Anwar al-Awlaki, (US citizen killed in Yemen via US drone strikes) – points to strong similarities between how it operates and what Congress is trying to codify.
“The Obama administration’s critique interestingly, is not therefore the civil libertarian critique,” said Rana.
“The administration’s critique is that this unnecessarily infringes on the Executive branch’s ability to carry on the global war on terror – in other words, Congress is micromanaging through codification. So it’s really an inter-branch battle.”
He said that the distinction is one of either having a codified, set-in-stone basis for long-standing emergency practices that are quite coercive or simply giving greater leeway to the Executive branch to make up policies as it goes along.
“We can rightly be suspicious of the extent to which the Obama administration will actually use a veto and expend political capital in the context of an upcoming election on these sorts of issues,” said Rana.
If it ain’t broke…
Indeed, the chief argument against codifying these provisions and giving the military a role in domestic terrorist investigation is that the system works just fine as it is.
“You can’t find any national security experts in favour of these provisions,” said Heather Hulburt, executive director of the National Security Network, a non-profit foreign policy organisation with a focus on national security.
The list of those against the provisions reads like and institutional who’s who of national security – FBI Director Robert Mueller, CIA Director David Petraeus, Secretary of Defence Leon Panetta and dozens of senior White House counterterrorism officials, retired generals and retired interrogators have all come out strongly against allowing the US military to police US streets and detain US citizens – possibly overseas – without trial or access to their countries’ legal system.
John Brennan, the White House senior counterterrorism adviser told a US radio show that he believes the provisions are unnecessary and that “a very strong established track record of dealing successfully with individuals here in the United States who are involved in terrorism-related activities”.
Hulburt said the US has a very effective criminal justice system with a high conviction rate and severe sentences for those found guilty on terror-related charges.
“The parts of our government that are most experienced, not just at prosecuting cases but at interrogating people and actually helping in getting information that is not helpful just in that one case but actually on other networks and preventing further acts of terrorism is the FBI,” said Hulbert.
According to the US Department of Justice, there have been over 400 terrorist convictions in civilian courts since the September 11 attacks.
Besides, the military is not set up for domestic law enforcement, said Hulburt, adding that she’s done briefings with members of the military who “roll their eyes and say ‘I don’t know, on a practical level, how they expect us to this'”.
The world is a ‘battlefield’
The bill defines the world – the entire world – as a war zone, meaning that anyone can be detained anywhere in the world and they can be said to be on the battlefield of the “war on terror”.
Senator Lindsey Graham (a Republican from South Carolina, who also did not respond to a request for an interview) went so far as to say that it is justifiable to target US citizens in the US for endless military detention because “this notion that the homeland is not part of the battlefield is absurd”.
Geneve Manatri, government relations director for Security with Human Rights at Amnesty International USA, disagrees.
“Senator Graham and people who share his point of view essentially believe that we are at war, and that that war and that battlefield extends everywhere. But taken to its logical conclusion – the idea is nonsensical. Where else are we really going to use drones? On the main street of Montreal? Or in the middle of America, are we going to chase someone down to a 7-Eleven with military force or drone,” said Manatri.
The American Civil Liberties Union (ACLU) has also been speaking out against the open-ended definition of the conflict as well as the location of the battlefield.
“The bill is a big deal,” said Christopher Anders, the ACLU’s senior legislative counsel.
“It would authorise the president to order the military to capture civilians and put them in indefinite detention without charge or trial, with no limitation based on either geography or citizenship. The military would have the authority to imprison persons far from any battlefield, including American citizens and including people picked up in the US.”
Mirroring authoritarian regimes
When it comes to their citizens being detained in other countries without due process, no figure can muster outrage like a US politician.
Take the case of Sarah Shourd, Josh Fattal and Shane Bauer, known to many as simply “the American hikers” during their detention in Iran, where the government accused them of being spies and sentenced them without trial. Shourd was held for more than a year, while Fattal and Bauer waited for two years before they were tried, convicted and ultimately freed.
The rallying cry to release them was strong, if not necessarily sustained. There was even a US Senate resolution, co-sponsored by two Minnesota senators – Al Franken and Amy Klobuchar, both Democrats, urging Iran to free the three prisoners.
“The fact that these three innocent Americans have been unjustly detained for over a year is incomprehensible,” said Franken at the passage of the resolution in August 2010.
“The Iranian government needs to release Shane, Sarah and Josh immediately so that that they can be reunited with their families and start putting their lives back together.”
Franken and Klobuchar both voted in favour of the NDAA, although Franken reveresed his vote for the amendended version out of the House two weeks later. Both versions of the bill included the controversial provisions that allow indefinite military detention.
Given the way the US typically lambastes states it feels violating fundamental rights by detaining people without end or trial, it seems odd that it seems to going in that direction.
Between increasing troop levels within the US (roughly 20,000 to be deployed internally) and then giving them the option to pull US citizens off the streets and send them Guantanamo Bay indefinitely, the provisions in the NDAA take a page out of the playbooks of governments they routinely criticise.
“This flies in the face of fundamental rights, the constitution and recent US history,” said Manatri, referring to the 2001 attacks.
“In some ways, we’re less thoughtful, we’re less reflective, we’re less concerned with protecting individual rights now than we were 10 years ago. Were any other country to apply the terms of this bill to the US or its allies, the US would be the first to complain.”
The ACLU’s position is similar, and Anders pointed out that the “enactment of this legislation would certainly undermine the US government’s policy of urging other governments to rely on their courts and not on military detention.”
Keeping Guantanamo open
Realistically, there are few facilities where US citizens are being detained under these new provisions.
“Physically, in terms of where you hold these people, you cannot hold them indefinitely, domestically, inside the US, in the same facility as somebody charged with a penal crime,” said Manatri.
He said that within the US, there is Fort Leavenworth, in Kansas, and the military brig in Charleston, South Carolina, neither of which have much capacity for such operations.
“So if you’re being held as a ‘prisoner of war’ then you’re not being punished for your position. What they can do is to remove such a person from ‘the battlefield’ – to take you away from hostilities. You can’t be in the same facility as a convicted criminal,” said Manatri, adding, “there are hardly any facilities domestically where you can be placed, and that’s part of the reason why they are trying to do this, so you can only really be sent to Guantanamo.”
Keeping the Guantanamo Bay detention facility open has been problematic for the Obama administration, as one of the president’s key campaign promises was to shut down the US facility in Cuba.
Hulburt said the military itself has doubts as to how it could detain terror suspects in the US.
“What’ll happen is that this will be a nightmare for the military to administer, the military doesn’t have that many prisons or holding facilities… nobody has idea how this will work,” said Hulburt.
“But there is a cynical view that calls these provisions the ‘Keep Guantanamo Open’ provisions and that the idea is that just about the only place you could sent them is Guantanamo.”
Could a military contractor open a prison overseas to house such detainees?
“Well, Guantanamo is not that huge, and there’s a timetable to get out of Afghanistan, so you wouldn’t have Baghram [airbase and prison] available,” said Hulburt.
“The idea that you would have contractors building prisons overseas – somebody somewhere is going to start pitching that to the Pentagon over the next few weeks.”