To Fight Terrorism The US Senate Has Declared The Military Can Detain Americans Without Trial or Legal Representation
Three years ago, former Guantánamo Bay detainee Mustafa Ait Idr cautiously sat with me in a Sarajevo café, spilling hot coffee as he brought the cup to his lips. Though it was seven months after his release, he was still nursing a broken finger – punishment, he said, for refusing to strip naked in his cell – and was unable to fully grasp the cup due to his loss of dexterity. His face was also partially paralysed from beatings, and he told me how his head was held in a toilet for prolonged periods of time.
Upon his release, he met his youngest son for the first time. Ait Idr was one of "the Algerian Six", a group of European (mainly Bosnian) citizens unlawfully detained at Guantánamo Bay for seven years. In 2008, a US federal judge ordered the release of five of the six men during the first-ever Guantánamo Bay habeas corpus trial. Just to obtain that trial, the men had to prevail in a 5-4 decision from the US supreme court. No charges were ever filed against them.
If the new National Defence Authorisation Act is enacted into law as it is currently written, many believe that American citizens would be in danger of enduring similar indefinite military detention without cause. Last week, the US Senate passed the NDAA, a massive $662bn defense bill with provisions that would amplify the role of the military in the seizure and detention of terror suspects, including US citizens. The act, a lovechild of Senators Carl Levin (Democrat) and John McCain (Republican), would permit the indefinite military detention of US citizens without charges or a trial. While the confusing bill is still a work in progress (the Senate and the House have yet to settle upon a final bill that will go to the president), it is already drawing fierce controversy across the country.
The NDAA holds that the military has the authority to detain "a person who was part of or substantially supported al-Qaida, the Taliban, or associated forces […] without trial" and authorises "transfer to the custody or control of the person's country of origin, any other foreign country, or any other foreign entity". This implies that a naturalised American citizen could be exiled to their country of origin, even if it endangers their life. It also implies that an American citizen born in the US could be transferred to another "foreign entity".
So, what exactly does "other foreign entity" include? No one is quite sure, but an "entity" akin to the new mercenary company in Abu Dhabi run by Erik Prince, former CEO of Blackwater, cannot be ruled out.
There is confusion as to whether the NDAA applies to US citizens; but Section 1031 of the bill does indeed authorise indefinite military detention, without trial, of US citizens accused – not yet proven guilty, just accused – of terrorist acts. This was clarified in the following exchange on the floor of the Senate:
Senator Rand Paul (Republican): "Under the provisions, would it be possible that an American citizen then could be declared an enemy combatant and sent to Guantánamo Bay and detained indefinitely?"
Senator John McCain (Republican): "I think that as long as that individual, no matter who they are, if they pose a threat to the security of the United States of America, should not be allowed to continue that threat."
Section 1032 of the bill would require mandatory military custody of someone accused of being affiliated with al-Qaida or plotting attacks against the US; American citizens would be exempt from this specific measure. Aside from the unabashed disregard for civil liberties, placing the burden of detention and trial upon the military, rather than civilian law enforcement, diminishes and delegitimises the FBI's role in counter-terrorism efforts. This could make it challenging to collaboratively gather intelligence on domestic terror cells.
The proposed changes would require the military to act as police, wardens and judges – jobs for which it is not equipped. Highly-decorated General Paul Eaton (US Army, retired), has affirmed this, saying:
"After serving for more than 30 years in the military, I can attest to its ability to conduct warfare brilliantly. We prefer not, however, to serve as policemen. The armed forces are not staffed, trained or equipped […] Our police, FBI and prison system are designed to keep America safe."
Senator Mark Udall (Democrat) sponsored an unsuccessful pitch to omit the controversial detainee portions, but his motion was defeated. The Senate also rejected a measure by Senator Dianne Feinstein (Democrat) to limit mandatory military custody to those captured outside the US. It failed (by a 45-55 vote), with only three Republicans voting in favor. Senator Feinstein did, however, succeed in pushing through a measure that ensures that the bill does not affect "existing law".
It it some though thin solace that President Obama has promised to veto the bill as written. Any adult reading this has very likely been falsely accused of doing wrong during their life. False accusations are cheap by the dozen. If the new National Defense Authorization Act is passed a as written it is not just your reputation that might take a beating, you can be hauled off to a military prison and never given the chance to defend yourself. A nice gift to any personal enemies you have made in life, but not much justice as guaranteed under the 4th Amendment, for you.
