Last week, when the Senate voted, by 93 votes to 7, to pass the latest National Defense Authorization Act (PDF), they passed legislation that not only approved a budget of $662 billion in military spending for the next fiscal year, but also demanded mandatory military custody for all terror suspects seized in 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. This was achieved through two measures: banning the use of funds to purchase or adapt any other prison to hold the 82 prisoners that 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 that the administration does not want to hold.
These designations were made through the careful deliberations of the interagency Guantánamo Review Task Force established by President 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 US mainland, Congressional restrictions on releasing prisoners have become progressively more onerous over the last two years, since lawmakers first voted to prevent Guantánamo prisoners from being brought to the US mainland for any reason, except to face a trial.
That was followed by a ban on bringing prisoners to the US 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), and 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, and this 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 [Guantánamo] who was transferred to such foreign country or entity and subsequently engaged in any terrorist activity.”
My problems with the Guantánamo provisions of the NDAA are the same as they were nearly a year ago, when David B. Rivkin Jr. and Lee A. 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 claim of recidivism is monstrously disproportionate, as it is a horrible example of “guilt by nationality.” Imagine imposing the same restrictions on prisoners in the US domestic prison system, who couldn’t ever be freed if there was a single act of recidivism recorded by a released prisoner, and it becomes apparent that it only works when applied 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 10th anniversary approaches of the opening of this experimental facility devoted to arbitrary detention — 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 this. 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 US 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 US soil.
Sheldon Richman and other commentators are correct to sound the alarm bells, although it should be noted that the Senate’s actions are a logical extension of fundamental problems at the heart of the “war on terror,” which have never been adequately addressed.
On September 10, 2001, terrorists were criminals, and had been successfully prosecuted as such in the US 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-Qaeda’s bombing of two US embassies, in Kenya and Tanzania, on August 7, 1998.
However, when the Bush administration declared a “war” on al-Qaeda and the Taliban, 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 only to take place at Guantánamo, and were to be military trials.
As the Bush administration found its “war on terror” challenged — from Guantánamo to the CIA’s secret prisons, and from extraordinary rendition to arbitrary detention and torture — the programs were scaled back or shut down. Around two-thirds of the prisoners at Guantánamo were released, and the CIA’s 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 Article 3 of the Geneva Conventions, which prohibit torture and “outrages upon personal dignity, in particular humiliating and degrading treatment.”
For President 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 ended up causing difficulties for his predecessor. Instead, he has been seduced by drone killings and the assassination of enemies from afar, even US citizens, eliminated without due process.
For the Senate, however — and especially the lawmakers in the Armed Services Committee — the laws governing the detention of terrorists are an obsession, even though it is now over ten years since the 9/11 attacks, Osama bin Laden is dead, and most of al-Qaeda’s 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 this legislation, the Senate is trying to bring federal court trials for terrorists to an end, forever, in the face of widespread opposition, particularly from law enfacement officials, who are alarmed that the mandatory military detention of terror suspects will be dangerously counter-productive.
The answer to their concerns is simple. Return to the law as it existed pre-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.