If Congress has its way, Guantanamo will be open forever.
(Shane T. McCoy, U.S. Navy/Wikimedia Commons)
There's
good news and bad news from the conference report on the defense authorization. Happily, the anti-gay stuff is out. Unhappily, some of the
key civil liberties problems have not been resolved.
The new bill still mandates military detention without trial for any non-citizen terrorism suspect apprehended in the US who is determined to be a member of al Qaeda or an "affiliated group." The administration now has several ways to get around that requirement, however. It could issue a national security waiver—a letter from the administration authorizing a trial in civilian court. Alternatively, the FBI could simply detain a suspect up until a determination is made that he can be detained by the military. Even after that, if the administration decides to try the suspect in civilian court, there's still no need to put him in military custody. Under the latest version of the law, someone like underwear bomber Umar Abdulmutallab could still go from interrogation to trial without ever passing through military hands—and without the need for a national security waiver. (The national security waiver option that has been a part of the Senate bill since the earliest drafts, although the authority to grant the waiver now rests with the president instead of the secretary of defense—a change a Senate aide said was requested by the administration.) [...]
Civil liberties and human rights advocates were less convinced that the bill's mandatory detention provisions could be so easily circumvented. A coalition of human rights, civil liberties advocates and national security experts held a conference call on Tuesday morning to warn that the NDAA still carves out a hypothetical role for the military to enforce the law on American soil. Sen. Lindsey Graham's (R-S.C.) comment that "the homeland... is that battlefield"—made during the December 1 debate after which the Senate approved its version of the NDAA—applies equally now, said Raha Wala, a lawyer at Human Rights First. And ACLU legislative counsel Chris Anders argued that the NDAA could set up a jurisdictional conflict between the military and the FBI similar to those that exist between state and federal level law enforcement authorities.
The latest version of the bill bill maintains transfer restrictions on the transfer of Gitmo detainees that were passed last year. It also retains the language of the Senate "compromise" on indefinite detention without trial of American citizens apprehended on US soil, leaving the issue an open question for the courts to resolve. The way the compromise is worded, however, could be construed as authorizing military detention of American citizens who are captured abroad, even if they're not apprehended fighting on a hot battlefield such as Afghanistan.
The White House is still reviewing the legislation and hasn't said yet whether the changes answer the problems that elicited a veto threat. Civil rights groups Center for Constitutional Rights and Human Rights Watch say the bill remains fatally flawed, and are urging President Obama to veto the bill.