2013 NDAA: Feinstein amendment hurts, not helps

We have noted the confusion over whether the 2012 National Defense Authorization Act (NDAA) allows for the indefinite detention of persons apprehended on US soil. Now it appears that an effort by Sen. Dianne Feinstein to clarify the question in the upcoming 2013 NDAA is so poorly worded that it unintentionally (?) makes matters worse. Feinstein's proposed amendment (online as a PDF at the Lawfare blog) states that:

An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen of lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention.

A joint statement by the American Civil Liberties Union, Amnesty International, Center for Constitutional RightsCenter for Victims of TortureBill of Rights Defense Committee and other groups (online as a PDF at the ACLU website) protests:

Afghan president claims US violating detainee pact

Afghanistan's President Hamid Karzai said Nov. 18 that US forces were capturing and holding Afghans in violation of a detainee transfer pact and that US forces should turn over that responsibility to Karzai's forces. Karzai's statement urged Afghan officials to make efforts towards toward obtaining entire responsibility for Bagram Prison. Listed abuses included Afghan detainees held by US forces despite Afghan rulings to the contrary and the continued arrest of Afghans by US forces. The statement comes less than a week after negotiations began on a bilateral security agreement that will govern US military presence in the country after the majority of US troops withdraw from Afghanistan after 2014. The US has delayed the handover of detention facilities to Afghanistan citing both lack of preparation by Afghan leaders in detention center management and discrepancies over treatment of detainees the US deems too dangerous to release. Both countries agreed to sign the bilateral security agreement within a year.

UK denies extradition request for Jordanian cleric

The UK Special Immigration Appeals Commission (SIAC) on Nov. 12 granted the appeal of Muslim cleric Abu Qatada (BBC profile), blocking his extradition to Jordan, where he is accused of organizing bomb attacks. Qatada has been described as "Osama bin Laden's right-hand man in Europe," and UK officials believe he should remain in prison for national security reasons. While never formally charged with an offense in the UK, he has for years been in and out of custody—either imprisonment or house arrest. The judge stated he did not believe Jordanian authorities would mistreat Qatada, but Jordan allows use of evidence gained as a result of the torture of others, and thus Qatada could not receive a fair trial.

Court dismisses torture suit against Rumsfeld

The US Court of Appeals for the Seventh Circuit, sitting en banc Nov. 7, ruled that two US citizens cannot sue former defense secretary Donald Rumsfeld for alleged torture by US soldiers in Iraq. The plaintiffs, who worked for a private security firm in Iraq, were arrested in 2006 by military personnel after being suspected of dealing arms. The plaintiffs alleged they were subject to torture in military prison, including sleep deprivation, extreme temperatures, and denial of food and water. In their lawsuit, the plaintiffs argued that Rumsfeld authorized harsh interrogation methods in Iraq and that victims of torture should be able to establish a private right of action against government officials. The Seventh Circuit rejected this argument as unworkable and contrary to the government's national security interests:

ACLU urges Obama to close Gitmo in second term

The American Civil Liberties Union (ACLU) called on US President Barack Obama early on the morning after his re-election Nov. 7 to shut down the Guantánamo Bay military prison, even as it congratulated him on his victory. Anthony Romero, executive director of the ACLU, urged Obama to "make good the promise he made four years ago to close the prison at Guantánamo Bay." He also encouraged Obama to put an end to practices such as warrantless surveillance, drone strikes and indefinite detention:

Accused USS Cole bomber boycotts pretrial hearing

Guantánamo Bay detainee Abd al-Rahim al-Nashiri on Oct. 23 boycotted his pretrial hearing at the facility. Al-Nashiri is accused of bombing the USS Cole while it was in port in Yemen in October 2000. Al-Nashiri objected to the use of belly chains while he was brought from his cell to the courtroom for the proceedings. Navy officials have stated that while belly chains are used when moving certain detainees within the facility, they would not have been used on al-Nashiri before this week's hearing. The hearing was to determine if Yemen was at war with the US at the time of the bombing, a decision that will be used to determine al-Nashiri's status as an enemy combatant.

UK court approves extradition of terror suspects

The High Court of England and Wales on Oct. 5 approved the extradition of five terror suspects to the US. The court's decision comes a week after the European Court of Human Rights (ECHR) gave its final approval of the extradition, which it had initially approved in April. Egyptian-born Muslim cleric Abu Hamza al-Masri and four other suspects appealed that ruling in July, but the ECHR declined to revisit their arguments. In its decision, the court criticized the extensive time spent litigating the extradition. In addition to al-Masri, British citizens Syed Talha Ahsan and Babar Ahmad and Saudi-born Khaled Al-Fawwaz are now slated to be extradited. All five men are wanted in the US on terrorism charges and will face imprisonment without parole at ADX Florence, a super-maximum security prison in Colorado. It has not been announced when the group will be extradited nor when they will be tried in the US.

US transfers Gitmo detainee Khadr to Canada

Canadian citizen Omar Khadr was transferred to Canada from Guantánamo Bay early Sept. 30 to serve out the rest of his prison sentence under the authority of the Correctional Service of Canada. Khadr pleaded guilty to murdering US Sergeant First Class Christoper Speer, an Army medic, as well as charges of conspiracy and spying, material support of a terrorist group and attempted murder. He was originally sentenced to eight years in 2010 on top of the eight years he had already spent in prison. The rest of his sentence and future parole hearings, however, will now be handled by Canadian authorities according to Canadian law.

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