Last-minute compromises resulted in passage of the National Defense Authorization Act (NDAA) the week before Congress’s Christmas recess. Despite veto threats, the White House reversed course and proclaimed that “the Administration has succeeded in prompting the authors of the detainee provisions to make several important changes, including the removal of problematic provisions.” The statement went on to say, “While we remain concerned about the uncertainty that this law will create for our counterterrorism professionals, the most recent changes give the president additional discretion in determining how the law will be implemented, consistent with our values and the rule of law, which are at the heart of our country’s strength.”
Ten years of experience in fighting terrorism at home and abroad have proven the president already has the power and the tools to neutralize threats to domestic and national security, and to punish terror crimes, without destroying American values and nullifying the Bill of Rights. President Obama’s retraction of his veto threat was a profound disappointment to civil liberties and human rights groups, including the National Association of Criminal Defense Lawyers, who remain committed to the Constitution and the rule of law.
NACDL President Lisa Wayne and National Security Committee members strongly indicated NACDL will continue to oppose certain provisions of the law on policy grounds.
“Our fight to prevent indefinite detention without charge or trial and to preserve the use of the criminal courts to try terrorism suspects is now more critical than ever,” Wayne said. “This setback will only cause us to redouble our efforts to see that our struggle against terrorism is not transmuted into a permanent war on fundamental liberties and due process.”
The American Civil Liberties Union’s Mandy Simon said in a telephone news conference in December that the legislation has made “the homeland a battlefield” in the so-called war on terror.
Additionally, the bill will prohibit the use of defense funds to transfer Guantánamo detainees to the United States, even for prosecution, even though the federal courts have successfully prosecuted over 400 terrorism cases since 9/11 compared to only six in military commission system at Guantánamo.
Section 1021 of the bill eviscerates more than 224 years of American legal history respecting fairness and due process of law. It wrongly codifies indefinite detention without charge or trial of terrorism suspects, including those suspects captured on U.S. soil.
Moreover, the bill still makes it virtually impossible to transfer prisoners who no longer pose a threat to their homes or other countries — including those at Guantánamo already cleared by the Bush and Obama administrations. It currently costs almost $1 million per year to hold each Guantánamo detainee, compared to about $30,000 per year for a federal prisoner in maximum security.
NACDL and civil liberties groups maintain that implementation of this legislation would undermine the rule of law. Diplomatic and defense officials fear that it could harm U.S. interests abroad and alienate allies who oppose U.S. detention policies.
Obama signed the NDAA on Dec. 31, but appended a signing statement saying that he has “serious reservations” about the detention provisions. In the statement, Obama said that he “will not authorize the indefinite military detention without trial of American citizens.” However, signing statements are not binding on future administrations or even on the president who issued them.