Last week, when the Senate voted, by 93 votes to 7, to pass the latest National Defense Authorization Act (NDAA), they passed legislation that not only approved a budget of $662billion in military spending for the next fiscal year, but also demanded mandatory military custody for all terror suspects seized in the future.
The military-custody provisions were conceived, in a secretive manner, by the Senate Armed Services Committee, which also updated previous provisions preventing the closure of Guantánamo. That was achieved through two measures: banning the use of funds to purchase or adapt any other prison to hold the 82 prisoners whom the Obama administration has said it wants to hold (for trial or indefinite detention), and imposing conditions on the transfer of any of the other 89 prisoners whom the administration does not want to hold.
These designations were made through the careful deliberations of the interagency Guantánamo Review Task Force established by Barack Obama, which included career officials and lawyers not only from various government departments, but also from the intelligence agencies. However, while critics on the Left and the Right have long criticized any plan to move prisoners from Guantánamo to the U.S. mainland, congressional restrictions on releasing prisoners have become progressively more onerous over the last two years, when lawmakers first voted to prevent Guantánamo prisoners from being brought to the U.S. mainland for any reason, except to face a trial.
That was followed by a ban on bringing prisoners to the U.S. mainland for any reason, preventing federal court trials for any of the Guantánamo prisoners (and explicitly preventing the planned trial of Khalid Sheikh Mohammed and four of the men accused of involvement in the 9/11 attacks). Lawmakers then began to impose restrictions on the release of prisoners regarded as dangerous.
A year ago, lawmakers prevented the president from releasing any prisoner unless Defense Secretary Robert M. Gates signs off on the safety of doing so, as the New York Times described it. That, in turn, led to a section in the latest legislation insisting that no transfer out of Guantánamo will be allowed if there is a confirmed case of any individual who was detained at [Guantnamo] who was transferred to such foreign country or entity and subsequently engaged in any terrorist activity.
My objections to the Guantánamo provisions of the NDAA are the same as they were nearly a year ago, when DavidB. RivkinJr. and LeeA. Casey, lawyers who served in the Justice Department under Ronald Reagan and George H.W. Bush, identified the provisions as unconstitutional in an op-ed in the Wall Street Journal. The latest brake on transfers to countries with even a solitary occurrence of recidivism is monstrously disproportionate, as it is a horrible example of guilt by nationality. Imagine imposing the same restrictions on prisoners in the U.S. domestic prison system who could never be freed if there was a single act of recidivism recorded by a released prisoner, and it becomes apparent that such a policy can be applied only with a broad brush of prejudice against entire countries.
Despite the fact that the sections on Guantánamo are designed to prevent the closure of the prison which is shameful as the tenth anniversary of the opening of this experimental facility devoted to arbitrary detention approaches most commentators have overlooked these sections of the NDAA and have focused instead on the military-custody provisions.
There are, to be fair, good reasons for that. As Sheldon Richman explained on Reason.com, for example,
Permit me to state the obvious: The government shouldn’t be allowed to imprison people indefinitely without charge or trial. It shouldn’t be necessary to say this nearly 800 years after Magna Carta was signed and over 200 years after the Fifth Amendment was ratified.
Yet this uncomplicated principle, which is within the understanding of a child, is apparently lost on a majority in the U.S. Senate. Last week the Senate voted … to authorize the executive branch to use the military to capture and hold American citizens indefinitely without trial perhaps at Guantánamo if they are merely suspected of involvement with a terrorist or related organization and even if their suspected activity took place on U.S. soil.
Richman and other commentators are correct to sound the alarm bells, although it should be noted that the Senates actions are a logical extension of fundamental problems at the heart of the war on terror that have never been adequately addressed.
On September10, 2001, terrorists were criminals, and had been successfully prosecuted as such in the U.S. courts. Less than six weeks after the 9/11 attacks, for example, four men Mohamed al-Owhali, Khalfan Khamis Mohamed, Mohamed Odeh, and Wadih el-Hage were sentenced to life without parole for their roles in al-Qaedas bombing of two U.S. embassies, in Kenya and in Tanzania, on August7, 1998.
When the administration of GeorgeW. Bush declared a war on al-Qaeda and the Taliban, however, two parallel worlds came into existence. In the first, federal court trials still took place for those accused of terrorism; but in the other, soldiers became terrorists, terrorists became warriors, and trials if they were contemplated were to take place only at Guantánamo, and were to be military trials.
As the Bush administration found its war on terror challenged from Guantánamo to the CIAs secret prisons, and from extraordinary rendition to arbitrary detention and torture the programs were scaled back or shut down. Approximately two-thirds of the prisoners at Guantnamo were released and the CIAs secret prisons were closed when, in June 2006, the Supreme Court reminded the administration that all its war on terror prisoners were entitled to the baseline protections of Common Article3 of the Geneva Conventions, which prohibits torture and outrages upon personal dignity, in particular humiliating and degrading treatment.
For Obama, Guantánamo has become largely a legacy issue, albeit one that he is in no hurry to deal with, having discovered that doing so would involve effort and principles. Instead, he has been content to rely on holding the remaining prisoners on the basis of the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks, and has shown little appetite for the kind of custody issues that caused difficulties for his predecessor. Instead, he has been seduced by drone killings and the assassination of enemies from afar, even U.S. citizens, who are eliminated without due process.
For the Senate, however and especially the lawmakers on the Armed Services Committee the laws governing the detention of terrorists are an obsession, even though it is now more than ten years since the 9/11 attacks, Osama bin Laden is dead, and most of al-Qaedas leaders have been killed (or, in a few cases, are in Guantánamo). Moreover, in all this time, the courts have continued to demonstrate that they are more than capable of trying terrorists, and are certainly more able than the military system at Guantánamo. Nevertheless, with the new legislation, the Senate is trying to bring federal court trials for terrorists to an end in the face of widespread opposition, particularly from law-enforcement officials, who are alarmed that the mandatory military detention of terror suspects will be dangerously counterproductive.
The answer to their concerns is simple. Return to the law as it existed before 9/11 and prosecute terror suspects as criminals. But while that involves extradition, or trials in other countries, what it doesn’t involve is what those pushing for mandatory military custody of all terror suspects want for terrorists to be warriors. They are not, and they never have been and never will be.
