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The NDAA and Indefinite Detention

Last week was the tenth anniversary of the military prison at Guantanamo, with newspapers dutifully marking the occasion with “Guantanamo at Ten” columns, op-eds and blog posts. A handful of papers, including the San Francisco Chronicle, the Philadelphia Inquirerand the Miami Herald, even ran editorials calling for the prison’s closure.

It was a blip in media exposure for the 171 prisoners at the facility, who have otherwise been largely forgotten.  Guantanamo has fallen off the headlines in the last couple of years, attracting minimal journalistic scrutiny and scant public interest. Few Americans seem to care that the facility is still open and an even smaller number are actively pressing for it to close.

The lack of concern is unfortunate.  It is especially troubling given that indefinite detention without charge—the issue that Guantanamo embodies—has generated heated debate in recent months.

The Indefinite Detention of US Citizens

The passage of the National Defense Authorization Act (NDAA), a federal statute essentially meant to codify the Guantanamo approach to justice, evoked a fair measure of outrage and alarm. Right wing radio announcer Rush Limbaugh condemned the new law as “total authoritarianism,” and liberal law professor Jonathan Turley warned that it was “one of the greatest rollbacks of civil liberties in the history of our country” — an unusual and possibly unprecedented coincidence of views.  Online petition sites are overflowing with calls for the NDAA’s repeal, at least one of which has tens of thousands of signatories, and some are even demanding the recall of the “treasonous” members of Congress who voted for the legislation.

But most of the op-eds, editorials, and blog posts denouncing the detention provisions of the NDAA had little to say about the Yemenis, Afghans, Kuwaitis and other non-US citizens who have been held at Guantanamo for the past decade.  Turley’s jeremiad did not even mention Guantanamo; nor did Limbaugh, in his radio harangue.

The civil liberties issue that has resonated with the American public is the possibility that American citizens suspected of terrorism could be picked up by US military forces and held indefinitely without charge.  This is a non-trivial concern, at least in the long term, given the language of the relevant provisions of the NDAA, which does not distinguish between citizens and non-citizens; given post-9/11 detention practices (US citizen Jose Padilla was arrested in Chicago in 2002 and held in military custody for three-and-a-half years without charge), and given the unsettled state of Supreme Court precedent on these questions.

But the theoretical possibility that an American citizen could be held indefinitely pales, in real human terms, next to the indisputable fact that 171 non-citizens remain behind bars at Guantanamo, all but five of them without formal charge. (Four prisoners have been convicted and one is facing terrorism and other charges.)

Whatever the NDAA may mean for Americans—and I should be clear that I think it is very bad news—it is worse for non-citizens. It was clearly designed to obstruct Guantanamo’s closure, to coerce President Obama into using military options when dealing with non-citizens suspected of terrorism, if not force him to do so, and to raise the political and procedural costs of relying on the civilian justice system.

The Indefinite Detention of Non-Citizens

Americans are not the only ones who cherish liberty.  The families of the 171 men detained without charge at Guantanamo, though they have no electoral means to influence US policy and little sway with the US public, believe their loved ones deserve a fair process for adjudicating their guilt or innocence.

Think about it.  Are you outraged at the thought of being held without charge by your own government?  Now consider being held indefinitely by someone else’s government.

Joanne Mariner is the director of Hunter College’s Human Rights Program. She is an expert on human rights, counterterrorism, and international humanitarian law.  

This column previously appeared on Justia’s Verdict.

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JOANNE MARINER is a human rights lawyer living in New York and Paris.

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