Military given go-ahead to detain US terrorist suspects without trial
Civil rights groups dismayed as Barack Obama abandons
commitment to veto new security lawcontained in defence bill
Americans can be arrested on home soil and taken
to Guantánamo Bay
under a provision inserted into
the
bill that funds the US military.
Photograph:
John Moore/Getty
Barack Obama has abandoned a commitment to veto a
new security law that allows the military to indefinitely
detain without trial American terrorism suspect
arrested on US soil who could then be shipped to
Guantánamo Bay.
Human rights groups accused the president of deserting
his principles and disregarding the long-established
principle that the military is not used in domestic policing.
The legislation has also been strongly criticised by
libertarians on the right angered at the stripping of
individual rights for the duration of "a war that appears
to have no end".
The law, contained in the defence authorisation bill that
funds the US military, effectively extends the battlefield
in the "war on terror" to the US and applies the
established principle that combatants in any war are
subject to military detention.
The legislation's supporters in Congress say it simply
codifies existing practice, such as the indefinite detention
of alleged terrorists at Guantánamo Bay. But the law's
critics describe it as a draconian piece of legislation that
extends the reach of detention without trial to include
US citizens arrested in their own country.
"It's something so radical that it would have been
considered crazy had it been pushed by the Bush
administration," said Tom Malinowski of Human Rights
Watch. "It establishes precisely the kind of system that
the United States has consistently urged other countries
not to adopt. At a time when the United States is urging
Egypt, for example, to scrap its emergency law and
military courts, this is not consistent."
There was heated debate in both houses of Congress
on the legislation, requiring that suspects with links to
Islamist foreign terrorist organisations arrested in the
US, who were previously held by the FBI or other
civilian law enforcement agencies, now be handed to
the military and held indefinitely without trial.
The law applies to anyone "who was a part of or
substantially supported al-Qaida, the Taliban or
associated forces".
Senator Lindsey Graham said the extraordinary measures
were necessary because terrorism suspects were wholly
different to regular criminals.
"We're facing an enemy, not a common criminal
organisation, who will do anything and everything possible
to destroy our way of life," he said. "When you join al-Qaida
you haven't joined the mafia, you haven't joined a gang.
You've joined people who are bent on our destruction and
who are a military threat."
Other senators supported the new powers on the
grounds that al-Qaida was fighting a war inside the
US and that its followers should be treated as
combatants, not civilians with constitutional protections.
But another conservative senator, Rand Paul,
a strong libertarian, has said "detaining citizens
without a court trial is not American" and that
if the law passes "the terrorists have won".
"We're talking about American citizens who can be
taken from the United States and sent to a camp at
Guantánamo Bay and held indefinitely. It puts every
single American citizen at risk," he said. "Really, what
security does this indefinite detention of Americans give
us? The first and flawed premise, both here and in the
badly named Patriot Act, is that our pre-9/11 police
powers were insufficient to stop terrorism.
This is simply not borne out by the facts."
Paul was backed by Senator Dianne Feinstein.
"Congress is essentially authorising the indefinite
imprisonment of American citizens, without charge,"
she said. "We are not a nation that locks up its citizens
without charge."
Paul said there were already strong laws against support
for terrorist groups. He noted that the definition of a
terrorism suspect under existing legislation
was so broad that millions of Americans could fall within it.
"There are laws on the books now that characterise who
might be a terrorist: someone missing fingers on their
hands is a suspect according to the department of justice.
Someone who has guns, someone who has ammunition
that is weatherproofed, someone who has more than
seven days of food in their house can be considered a
potential terrorist," Paul said. "If you are suspected
because of these activities, do you want the government
to have the ability to send you to Guantánamo Bay for
indefinite detention?"
Under the legislation suspects can be held without trial
"until the end of hostilities". They will have the right to
appear once a year before a committee that will decide
if the detention will continue.
The Senate is expected to give final approval to the bill
before the end of the week. It will then go to the president,
who previously said he would block the legislation not
on moral grounds but because it would "cause confusion"
in the intelligence community and encroached on his own
powers.
But on Wednesday the White House said Obama had
lifted the threat of a veto after changes to the law
giving the president greater discretion to prevent
individuals from being handed to the military.
Critics accused the president of caving in again to
pressure from some Republicans on a counter-terrorism
issue for fear of being painted in next year's election
campaign as weak and of failing to defend America.
Human Rights Watch said that by signing the bill
Obama would go down in history as the president
who enshrined indefinite detention without trial
in US law.
"The paradigm of the war on terror has advanced
so far in people's minds that this has to appear
more normal than it actually is," Malinowski said.
"It wasn't asked for by any of the agencies on the
frontlines in the fight against terrorism in the
United States. It breaks with over 200 years of
tradition in America against using the military
in domestic affairs."
In fact, the heads of several security agencies,
including the FBI, CIA, the director of national
intelligence and the attorney general objected
to the legislation. The Pentagon also said it was
against the bill.
The FBI director, Robert Mueller, said he feared
the law could compromise the bureau's ability
to investigate terrorism because it would be more
complicated to win co-operation from suspects held
by the military.
"The possibility looms that we will lose opportunities to
obtain co-operation from the persons in the past that
we've been fairly successful in gaining," he told Congress.
Civil liberties groups say the FBI and federal courts have
dealt with more than 400 alleged terrorism cases,
including the successful prosecutions of Richard Reid,
the "shoe bomber", Umar Farouk, the "underwear bomber"
and Faisal Shahzad, the "Times Square bomber".
Elements of the law are so legally confusing, as well as
being constitutionally questionable, that any detentions
are almost certain to be challenged all the way to the
supreme court.
Malinowski said "vague language" was deliberately
included in the bill in order to get it passed.
"The very lack of clarity is itself a problem. If people
are confused about what it means, if people disagree
about what it means, that in and of itself makes it bad law,"
he said.
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