US lawmakers vote on indefinite detention
A new US law will declare the world a battlefield, making virtually anyone
vulnerable to indefinite military detention.
> D. Parvaz Last Modified:
15 Dec 2011 13:33
While it's known that the US has used indefinite detention of suspects in
its "war on terror", the House and Senate are just a vote away from making
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 with a vote of 283 for and 136 against the bill.
The Senate is expected to vote on the bill as early as Thursday and 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 <http://www.lawfareblog.com/category/detention/
of civilians by the military.
Tea Party Sen. Rand Paul - one of seven who voted against the bill -
questions the bill's constitutionality [C-Span]
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,
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
For weeks, the White House has been expressing concern over the bill. A
867s_20111117.pdf> 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.
Aziz Rana provides background and context for the controversial provisions
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
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
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
"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
According to the US Department of Justice, there have been over 400
NSD-Final-Statistics.pdf> 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".
Potential violation of US Consitutional rights under provisions in the NDAA
Article 3: States that anyone accused of treason cannot be convicted without
"the Testimony of two Witnesses to the same overt Act, or on Confession in
Fifth Amendment: This amendment states a person can't be "deprived of life,
liberty, or property without due process of law".
Sixth Amendment: Guarantees the right to a "speedy and public trial"
allowing the accused "to be confronted with the witnesses against him; to
have compulsory process for obtaining witnesses in his favour, and to have
the Assistance of Counsel for his defence".
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
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
"The bill is a big deal," said Christopher Anders, the ACLU's senior
"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
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.
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.
> 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
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
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,"
"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."
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Received on Thu Dec 15 2011 - 17:00:28 EST