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NDAA: Fight to End Indefinite Detention Goes to Senate

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Close Gitmo
Zak Newman,
ACLU Washington Legislative Office
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May 27, 2014

It was a scrappy week in Washington last week, as members of the House of Representatives took up votes on key military programs. Like last year, Guantánamo and the targeted killing program featured prominently.

Though the National Defense Authorization Act (NDAA) passed by the House on Friday did no new harm on those hot-button issues, the Senate version includes language that could present one of the biggest challenges yet to ending the unlawful practice of indefinite detention.

Bill Breakdown

The final House bill continues to ban new construction in the United States to house detainees from Guantánamo and to prohibit the use of funds to transfer detainees to the United States. It also authorized some $69 million in unnecessary spending on a new prison facility, which we wrote about here.

The headliner amendments considered on detention - both failed - are two that we've supported for several years in a row, both offered by Congressman Adam Smith (D-Wash.). One, the "Guantanamo Bay Detention Facility Closure Act of 2014," would have allowed for detainees to be tried in federal courts and cut off all funding for Guantánamo at the end of 2016. You can read our letter of support for the amendment here.

Another, the Smith-Broun amendment, would have banned extrajudicial military detention of people in the United States. Though that detention is unconstitutional, some senators in recent years have actually suggested that it could be a good idea. That's why we supported this amendment (as we have in the past) and will continue to push for its adoption as part of future legislation.

That these bills failed is a disappointment, but it actually could have been worse.

Guantánamo-related language out of the House has been far more restrictive in past years, prohibiting transfers of detainees to their home countries – except when the Department of Defense met excessively high procedural hurdles – and banning outright the transfer of any detainees to Yemen. That outright ban didn't make it into the final bill this year.

We saw similar movement forward on drones. One amendment we supported, sponsored by Congressmen Paul Broun (R-Ga.) and Ted Yoho (R-Fla.), prohibits the military from killing citizens not actively engaged in combat with the United States. Though the Constitution already prohibits such an extrajudicial killing, that did not stop the killing of at least four Americans, including a 16-year-old American boy whom no one has accused of wrongdoing. The amendment would prohibit killings like this.

We also supported another drone-related amendment to remove the CIA's authority to conduct drone strikes, consolidating the program under the DoD, which would result in greater oversight and accountability. That amendment was ultimately not voted on, though we'll continue to press the issue as one step to bring the clandestine and lethal program out of the shadows.

What's Next

With no new harmful provisions coming out of the House, we would generally expect to see a good – or at least much better – final bill when the differences between the House and Senate versions of the bill are hashed out later this year.

But initial reports indicate that a Senate committee bill could entrench the very worst of Guantánamo: indefinite detention without charge or trial. Though final bill text is still forthcoming, it appears that, in the name of closing Guantánamo, Senate Armed Services Committee members – the drafters of the initial bill on the Senate side – would allow transfers of some detainees from Guantánamo to the United States for continued indefinite detention.

That's no fix.

Transfers home for those who have already been cleared for release – and prosecutions for those detainees against whom there is evidence untainted by torture – should be urged as part of any legislation seeking to close Guantánamo. But transferring detainees to the United States for indefinite detention would only perpetuate and spread the wrongs we need to end.

An additional cause of concern is news that the Senate committee could include its own Yemen transfer ban in its preliminary draft bill. This would be unprecedented for the upper house. Of the 77 detainees currently held at Guantánamo that have for years been cleared for release, a full 57 are from Yemen. Such a ban would not only present a profound injustice for these men, who have never been charged with a crime, but would necessarily obstruct efforts to shrink the population at Guantánamo Bay and ultimately close the facility.

For now, we can breathe a sigh of relief for a relatively reasonable House bill. But we have a lot of work to do in the Senate.

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