For Immediate Release: June 27, 2011
Washington, D.C. — Friday, the Senate Armed Services Committee released its version of the National Defense Authorization Act (NDAA) for the Fiscal Year of 2012, containing counterterrorism measures that would make Americans less secure, which overshadow some minor improvements in policy.
The committee’s bill would establish a statutory scheme for holding terrorism suspects possibly forever without trial, despite the proven success of civilian prosecutions in incapacitating terrorists.
“Holding someone in prison without trial on mere suspicion is un-American and legally problematic. Our criminal justice system is the only reliable process for incapacitating terrorists, and has provided safe, credible prosecutions of over 400 individuals for terrorism-related offenses since 9/11,” said Human Rights First’s Dixon Osburn.
The committee’s bill would also force the Department of Defense to hold a category of terrorism suspects in military custody, undermining the President’s ability to use law enforcement tools to address terrorist threats. In a March hearing before the House Armed Services Committee, Department of Defense General Counsel Jeh Johnson opposed a similar military custody provision, noting that it would create substantial litigation risk for the government. The House of Representatives did not include the military custody provision in its version of the defense bill.
“The Pentagon is not the world’s jailor. Militarizing our law enforcement will undermine our security as allies will be highly reluctant to turn over terror suspects to the U.S. when we cannot guarantee a fair process,” added Osburn.
By making permanent restrictions on transferring Guantánamo detainees to their home countries, or to third countries, the committee’s bill would potentially trap those detained in error and those entitled to release. More than 90 of the 171 men held at Guantanamo have been cleared for release by the Bush and/or Obama Administrations.
The bill would prudently expand waivers and exceptions to the transfer restrictions. These provisions could permit the Secretary of Defense to waive the restrictions to transfer detainees back home, to a third country or pursuant to a court order. The bill would also permit transfer of Guantánamo detainees to the United States for criminal trial. The Obama administration has issued a veto threat over onerous Guantánamo transfer restrictions and other encroachments on executive power that were included in the House NDAA.
Regarding the Guantánamo transfer restrictions in the Senate Armed Services Committee’s bill, Osburn said: “Making the transfer restrictions permanent is a serious mistake, as the Obama administration must have the flexibility to transfer cleared Guantanamo detainees to show the world we uphold the rule of law. Nonetheless, we are encouraged to see the committee stand up in the interest of fairness and our national security to roll back some of the more egregious aspects of the transfer restrictions.”
Despite the statutory indefinite detention scheme, the bill provides detainees with a military defense attorney as a status review panel determines whether they meet the legal requirements for long-term detention without trial. This is an improvement over the status quo for Afghans held by the U.S. military at the Bagram Airbase in Afghanistan, some of whom are wrongfully detained because they are not able to see or challenge the evidence.
In May, Human Rights First published a report on the flaws in the Detention Review Board process in Afghanistan, and has called on the U.S. government to improve its procedures.
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