During his presidential campaign Barack Obama was a harsh critic of the Guantanamo Bay detention center. An indeed, in January 2009, he signed an executive order for the closure of Guantanamo by January 2010. However, this did not happen and the latest development, following the National Defense Authorization Act (NDAA) for 2012 that was passed recently, makes for an increasingly complicated situation.
The NDAA is that bill authorizes funding for the United States Departement of Defense. But in the massive text of the NDAA for 2012 a few provisions concerning the handling of suspected terrorists have been inserted. The act states that a person who is a part of, or supports, forces engaged in hostilities against the U.S. can be detained under the law of war without trial until the end of the hostilities.
Even though military detentions without trial has been used frequently by the U.S. this last decade, the act still represents a turning point. While the legality of the Bush administrations use of military detentions could have been questioned in the past, the NDAA codifies the practice into U.S. law.
The bill goes so far as to require the military to handle cases of suspected terrorists even within the U.S., thereby taking the responsibility away from those law enforcement agencies previously assigned to the task.
Even more controversially the NDAA might apply to American citizens. The Act is somewhat vague on this point, and how it should be interpreted is still a matter of debate. It seems to be clear that the required military detention does not apply to American citizens, but that the possibility of doing so remains open. Indeed Senator Lindsay Graham, one of the authors and supporter of the bill, claimed that American citizens were covered by the statute. On the subject of citizens suspected of involvement with terrorist groups, he is quoted in the New York Times saying: “And when they say, ‘I want my lawyer,’ you tell them: ‘Shut up. You don’t get a lawyer. You are an enemy combatant, and we are going to talk to you about why you joined Al Qaeda.’ ”
Obama threatened to veto the bill. After some minor changes, however, he did sign it, though he did so expressing some reservations. In his signing statement he claimed to sign the Act “chiefly because it authorizes funding for the defence of the United States and its interests abroad, crucial services for service members and their families, and vital national security programs that must be renewed.”
Furthermore he stated “I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.” He stressed that his administration would not interpret the law in such a way as to allow detention of American citizens. Critics responded to this by pointing to the fact that whatever interpretation the Obama Administration makes of the law, does not hinder the next administration to interpret it differently.
The law also places restrictions on transfers of detainees from Guantanamo either to trial and prisons within US or to other countries. Today, ten years into the history of Guantanamo prison, there are 171 prisoners being held in detention of which only one is currently facing formal charges and another five have charges pending against them. While 89 detainees have been approved for transfer to their home countries or third countries, they have for different reasons not been released yet. According to the NDAA transfers from Guantanamo are allowed only if the Defense Departement certifies that the transferred individual will not engage in any hostile acts when they are returned to the home or third country. But it is uncertain whether the Defense Departement will be able, or willing, to risk such a statement.
It might be too early to say what consequences this new law will have. There’s many uncertainties as to how it will be interpreted and applied. Furthermore there is the question of whether it would be found in accordance with the Constitution if tried by the U.S. Supreme Court. Despite the uncertainties, it appears clear that the NDAA marks an important event in the politics of the U.S, the extent of which remains to be seen.