Senate's Disastrous New Detention Bill

November 18, 2011

Update 12/2/11: The Senate passed NDAA.  President Obama must veto this disastrous bill.

The new National Defense Authorization Bill (S1867) presented to the Senate by the Armed Services Committee is such a disaster for civil liberties and human rights it is difficult to know where to begin.

Section 1031 of the Bill extends the Congressional Authorization for the Use of Military Force (AUMF) passed after the September 11th attacks to encompass any individual who has “substantially supported” Al Qaeda, the Taliban, or “associated forces”.

This is extraordinarily vague.  The phrase ‘associated forces’ is so flexible that it can be used to encompass almost any militant Islamic group in existence from Indonesia to Nigeria. It might include political parties who share some of the militants’ aims but not their methods – like the Hizb ut Tahrir movement active in Western Europe and Australia.

The Bill does not set any territorial limits on where this conflict is being fought. The presumption is that US forces can engage terror groups with kinetic weapons systems wherever they find them – London, Copenhagen, Istanbul and Kampala are all fair game and to hell with consequences for any citizens of those countries who get caught in the middle.

Also alarmingly imprecise is the term “substantially supported.” In the past the Department of Defense has described both writing an opinion piece for The Guardian, a globally respected British newspaper, and detainee suicide as terrorist acts.  To date, this bar has not been set high.

Some of those accused of terrorist affiliations have languished for almost a decade at Guantanamo and are still no nearer having their day in court. Requiring trials by Military Commission will simply relegate more accused individuals to the Twilight Zone of indefinite detention.

Article 9 of the International Covenant of Civil and Political Rights (ICCPR) requires trial within “a reasonable time” and so this measure also racks up another human rights abuse for the United States government while contributing nothing to the overall security of the American people.

Also, let us not forget that the Military Commissions currently consist of two temporary courtrooms on the Guantanamo Naval Station that have barely managed to process six cases in almost a decade. How on earth does the Senate expect them to cope with such an expanded mission?

One answer might be building more courtrooms, and of course more prisons to hold the accused. Yet, Guantanamo is already the most expensive prison on earth – it currently costs the US taxpayer $800,000 per prisoner per year to run – even a former deputy commander calls it “expensive” and “inefficient”.

So much for slashing government spending – where’s the deficit reduction super committee when you need it?

Even if an individual is exonerated of any wrongdoing, Section 1033 of the Bill requires that they continue to be held in Gitmo if there is a confirmed case of detainee recidivism in that individual’s country of origin.

Imagine if your personal freedom depended on the lawful behavior of every single one of your fellow 350 million US citizens – we’d all be in jail.

Finally, there is the military itself to consider. The armed services have a limited criminal investigative capacity and much of that force is already deployed down range in vital counter-terrorist operations. Giving the military an expanded investigative mission is going to divert resources from the frontlines.

That does not seem very smart.

No one wants this. Not the military. Not the intelligence community. Not law enforcement. Not the courts.

S1867 proposes an ill-conceived fix for a problem that doesn’t exist. Federal courts have processed hundreds of terrorism-related cases in the decade since 9/11. The process is established, respected, efficient and well supported.

The Senate seems to have forgotten T. Bert Lance’s celebrated dictum ‘if ain’t broke, don’t fix it’ and, if this Bill passes, we are all going to have to live with the consequences unless President Obama finally shows an appetite to fight for what he once believed in.

On the campaign trial Mr. Obama described Military Commissions as “an enormous failure.” They were then and they still are today. We are calling on President Obama to stand up for America’s courts and veto this legislation if it clears the Hill.

Add your voice to those calling on the President Obama to reject S1867 by clicking on this link and taking action.