Is Guantanamo forever?

The Senate contemplates a bipartisan bill to make permanent the failed system of indefinite detention

Published November 28, 2011 6:55PM (EST)

A guard looks out from a tower in front of the detention facility on Guantanamo Bay U.S. Naval Base in Cuba.   (Associated Press)
A guard looks out from a tower in front of the detention facility on Guantanamo Bay U.S. Naval Base in Cuba. (Associated Press)

A decade ago, after the Sept. 11attacks, President Bush authorized the detention without charge of alleged terrorist suspects. It had been decades since the United States had detained people without charge or trial on national security grounds. The last time was during World War II when thousands of Japanese-Americans were unjustly detained in internment camps. The U.S. has since acknowledged this mistake, paying reparations to those wrongly detained.

The Bush system of indefinite detention established at Guantanamo and elsewhere attempted to stand outside and circumvent the rule of law. This system has failed to prosecute more than a handful of terrorist suspects, while wrongfully detaining hundreds more. Yet Congress is now poised to make this system a permanent feature of U.S. law.

The National Defense Authorization Act, scheduled to be voted on by the Senate this week, contains several provisions that, if passed, would have the military police the streets, expand Guantanamo and indefinite detention elsewhere, and force certain terrorism suspects into military custody instead of charging them with crimes in civilian courts.

This, despite the fact that the civilian justice system has proven effective in the fight against terrorism, preventing future attacks and prosecuting, far more than the military, alleged terrorist cases. In the last 10 years over 400 people have been tried and convicted of terrorism-related offenses in U.S. federal courts.  Many convicted in this system are serving their sentences in U.S. prisons. The criminal justice system, flawed though it may be, has stood the test of time.

Meanwhile, in the extra-legal military system, hundreds of detainees were abused in U.S. custody and some died. While a total of 779 people have been held at Guantanamo, only six have been prosecuted in a military commission and two are already free.

Immediately after the attacks of Sept. 11 the world rallied around the United States in a show of solidarity. But the support faded rapidly as the new U.S. counterterrorism policy became clear. The “global war on terror” and the ensuing cruel and illegal policies of torture, enforced disappearances and indefinite detention without trial damaged the international standing of the United States, to say nothing of the cruelty inflicted upon the people abused and detained and on their families. The detention provisions of the NDAA would reinforce this discredited idea of a “global war on terror.”

These provisions, the result of a bipartisan compromise sponsored by Sens. Carl Levin and John McCain, would effectively jettison the civilian law enforcement system and require the military to become the world’s judge, jury and jailor. This position is being closely watched by the U.S. allies who supported Obama’s now-defunct plan to close Guantanamo and agreed to serve alongside U.S. troops in Afghanistan and elsewhere. It is also being watched by the repressive regimes of the world who have long declared the U.S. had no authority to tell them how to respect human rights while Guantanamo and illegal detention persisted.

When the Senate Armed Services Committee considered these provisions, they did so behind closed doors, away from public scrutiny. Neither the Senate Judiciary nor Intelligence Committees were consulted and no hearings were held. In a powerful statement, all members of the Intelligence Committee and most members of the Judiciary Committee asked Majority Leader Harry Reid to refuse to allow the bill to proceed until the detention provisions were removed from the bill.  Instead, the drafters made the bill even worse, prompting the secretary of defense to write a letter in opposition and the White House to issue a veto threat.

Secretary of Defense Leon Panetta wrote to Levin,  saying the "advantages ... of requiring that certain individuals be held by the military are, at best, unclear” and “restrain[] the Executive Branch’s options to utilize, in a swift and flexible fashion, all the counterterrorism tools that are now legally available.”

The detention provisions don’t belong in the NDAA, or anywhere else in U.S. law. Sen. Mark Udall of Colorado has braved opposition from Levin and McCain – to oppose them. He has offered the only reasonable amendment to the bill – strip the detention provisions from it and allow Congress to move forward with the other relatively uncontroversial and important parts of the bill related to funding the Defense Department.

The administration has threatened to veto not only the Senate bill over these provisions, but also an earlier version of the bill passed by the House. Proponents of the provisions claim a veto would jeopardize funding for U.S. troops but the reality is, troops are funded by the defense appropriations bill, not the NDAA. The aggressive response from the administration, including statements from the Defense Department, Justice Department and director of National Intelligence, suggest that the veto threat is a serious one.

In the days after the Sept. 11 attacks, the U.S. stepped outside the law. Slowly, and with the benefit of hindsight, it has moved back to using the time-tested U.S. system of justice to prevent and prosecute terrorism cases.  Congress should cease its attempts to cement in an extra-legal regime. It didn’t work before and it won’t work again.

By Andrea Prasow

Andrea J. Prasow is senior counterterrorism counsel and advocate with Human Rights Watch in Washington, D.C.

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Guantanamo National Defense Authorization Act