Senior legislative counsel for the ACLU estimates that if the Senate has its way, 100 U.S. citizens could immediately find themselves in Guantánamo-like indefinite detention.
The Senate’s draft of the National Defense Authorization Act for 2015 was written behind closed doors and kept secret for around 11 days, but the text of the bill was publicly released last week.
In response, Chris Anders, senior legislative counsel for the American Civil Liberties Union’s Washington Legislative Office, wrote a blog post for the ACLU chronicling his concerns about the annual defense policy bill.
“Top senators thought you wouldn’t notice,” wrote Anders, but the 2015 NDAA includes provisions that “paves the way for Guantánamo-style indefinite detention being brought to the United States itself.”
He also encouraged the public to not only read the text of the 784-page bill, but to contact their lawmakers and encourage them to vote against the legislation that he says allows for the use of military force to detain Americans indefinitely — even if U.S. involvement in a combat situation were to end.
“The bill now says that detainees may be brought to the United States for ‘detention pursuant to the Authorization for Use of Military Force’ (AUMF),” Anders wrote. “In plain English, that means the policy of indefinite detention by the military, without charge or trial, could be carried out here at home. Right now, the number of people in the U.S. in military indefinite detention is zero. If the bill is enacted, that number could immediately jump to 100 or more.”
Concerns about the U.S. government’s ability to indefinitely detain American citizens emerged after the passage of the 2012 version of the NDAA, which many have argued contains vague language that allows the government to unlawfully and indefinitely detain U.S. citizens, including journalists, who “associate” or “substantially support” enemies of the U.S. such as terrorist groups like al-Qaida.
In response to these concerns, the U.S. government asked for concerned citizens’ trust, but allegedly refused to write anything into the law or provide written confirmation that journalists and activists would not be indefinitely detained.
In May, the House’s version of the 2015 NDAA passed in a vote of 325-98. It contained provisions that would authorize the Pentagon to spend about $521.3 billion for base national defense programs. Of the roughly 100 amendments that were proposed, one that would have closed the Guantánamo Bay detention center by 2016 did not make it into the House’s final document.
Although the White House supported the amendment proposed by Rep. Adam Smith, it was ultimately defeated in a vote of 177-247, as many Republicans argued international terrorists needed to be held somewhere other than the United States.
Anders, of the ACLU, expressed concern about the provision in the Senate’s NDAA bill, which would entirely prohibit the transfer of cleared detainees to Yemen, instead of allowing the secretary of defense to determine whether an individual can return to the country on a case-by-case basis.
For the House version, Smith also proposed an amendment that would have prohibited the indefinite detention of terrorists captured in the U.S. or its territories, arguing that current indefinite military detentions are unconstitutional.
“It is not necessary,” Smith said. “It is an enormous amount of power to grant the executive and I believe places liberty and freedom at risk in this country.”
However, House Armed Services Committee Chairman Buck McKeon disagreed with Smith’s stance that indefinite detentions are dangerous and represent an abuse of power. He was able to convince his peers to defeat the amendment in a vote of 191-230.
While the House’s legislation would continue to allow a president’s administration and the military to indefinitely detain any individual without first awarding them his or her constitutionally-guaranteed habeas corpus rights, the Senate took the government’s ability to indefinitely detain individuals to a new level by including several provisions Anders finds concerning — particularly the provision stripping habeas rights from any Guantánamo detainee who is not moved to the United States.
One such provision allows an administration to ask Congress for more indefinite detention authority. Whether that request would be granted is not merely speculation at this point, but it’s a concern for many like Anders who argue that the government already has enough authority.
Another source of concern is the provision that strips the federal courts of “their ability to ‘hear or consider’ any challenge related to harmful treatment or conditions by detainees brought to the United States.” Anders wrote that this was an important provision to pay attention to, since it “tries to gut our system of checks and balances by cutting out the courts.”
“The Senate NDAA gets it very wrong,” Anders concluded. “We urge all senators to say ‘NO’ to these provisions.”
Based on previous legislative sessions, it will likely pass into law unless lawmakers are encouraged by their constituents to weaken their own authority and return constitutional rights granted by the First, Fourth and Fifth Amendments back to the American people.
It’s not yet known when the Senate will vote on the bill. Sen. Carl Levin, chairman of the Senate’s Armed Services Committee, who helped write the controversial legislation in 2012 with Sen. John McCain behind closed doors, said U.S. Senate leaders have not yet scheduled a floor time for the bill.