President Barack Obama [2] on Dec. 31 signed the National Defense Authorization Act for 2012, with controversial provisions that codify into law indefinite detention of terror suspects. The act allows the president to use "all necessary and appropriate force" to detain any person, including US citizens, who "was part of or substantially supported al-Qaeda, the Taliban, or associated forces, under the law of war until the end of hostilities." In a signing statement, Obama wrote: "The fact that I support this bill as a whole does not mean I agree with everything in it. I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation and prosecution of suspected terrorists... My Administration will aggressively seek to mitigate those concerns through the design of implementation procedures and other authorities available to me as Chief Executive and Commander in Chief, will oppose any attempt to extend or expand them in the future, and will seek the repeal of any provisions that undermine the policies and values that have guided my Administration throughout my time in office."
Obama initially had threatened to veto the bill—but with military funding due to expire Jan. 2, he signed it, citing last-minute revisions Congress made at White House request before approving it two weeks earlier, which allow the president to waive the new detention authority. The president called those changes "minimally acceptable" and pledged: "I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation." He added that he would "reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat."
Critics in the human rights community were unsparing. "By signing this defense spending bill, President Obama will go down in history as the president who enshrined indefinite detention without trial in US law," said Kenneth Roth, executive director of Human Rights Watch.
"President Obama's action today is a blight on his legacy because he will forever be known as the president who signed indefinite detention without charge or trial into law," said Anthony D. Romero, ACLU executive director. "The statute is particularly dangerous because it has no temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield."
The Secretary of Defense, the Director of National Intelligence, the Director of the FBI and the head of the Justice Department's National Security Division have all said that the indefinite detention provisions in the NDAA are harmful and counterproductive. William S. Sessions, who served as FBI director under Presidents Reagan, Bush and Clinton, wrote in a letter to members of the conference committee working on the NDAA that the detention provisions "could pose a genuine threat to our national security and would represent a sweeping and unnecessary departure from our constitutional tradition."
On Nov. 29 the Senate voted 38-60 to reject an amendment to the NDAA that would have removed provisions authorizing detention without charge. The amendment propsed by Sen. Mark Udall (D-CO), would have replaced those provisions with a requirement for a congressional review of detention power. The act includes a provision a bar to the transfer of detainees currently held at Guantánamo Bay into the US for any reason, including for trial. In the last 10 years over 400 people have been prosecuted in US federal courts for terrorism-related offenses [3]. Meanwhile, at the Guantánamo military commissions during that same period, only six cases have been prosecuted. (Jurist [4], Jan. 1; WP [5], ACLU [6], Atlantic Wire [7], Dec. 31; NLG [8], Dec. 27; HRW [9], Dec. 21; Constitution Project [10], Dec. 9; ACLU [11], Dec. 5; ACLU [12], Nov. 29)
See our last post on the detention state [2].
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