The ABA expressed concerns last month about detainee provisions passed by the Senate Dec. 1 as part of its version of H.R. 1540, the National Defense Authorization Act for Fiscal Year 2012.
The detainee provisions in the Senate bill, which prompted a veto threat from President Obama, would, among other things, require the use of military detention rather than civilian arrest for virtually all non-citizen terrorist suspects associated with al Qaeda and other forces involved in hostilities against the United States, regardless of place of capture, and authorize indefinite detention without trial until the end of hostilities. The provisions also would permit trial by military commission of all terrorist suspects, including U.S. citizens or lawful residents, in situations where trial by an Article III court would be possible.
During Senate debate on the defense legislation, the Senate rejected, by a 38-60 vote, a proposed amendment offered by Sen. Mark Udall (D-Colo.) to strip the detainee provisions from the bill. The Senate also rejected two amendments offered by Sen. Dianne Feinstein (D-Calif.), chair of the Senate Select Committee on Intelligence, that would have limited military custody of those caught outside of the United States and would have limited the authority of the Armed Forces to detain U.S. citizens without trial or charge.
The Senate approved a third Feinstein amendment by a 99-1 vote that seeks to clarify that nothing in Section 1031 of the legislation “shall be construed to affect existing law or authorities relating the detention of U.S. citizens, lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.”
Critics of the detainee provisions have expressed concern that the Feinstein amendment is not sufficient to prevent U.S. citizens and U.S. persons from being subject to indefinite detention without charge because they maintain that the reality is that the scope of such executive authority is unsettled.
The Obama administration objected to many of the detainee provisions in the Senate bill. The Statement of Administration Policy, released Nov. 17, stated that some of the policies “disrupt the executive branch’s ability to enforce the law and impose unwise and unwarranted restrictions on the U.S. government’s ability to aggressively combat international terrorism; other provisions inject legal uncertainty and ambiguity that may only complicate the military’s operations and detention practices.”
In a Nov. 28 letter to all senators, ABA Governmental Affairs Director Thomas M. Susman urged the Senate to remove some of the detainee provisions before a final vote on the legislation. He highlighted ABA policy adopted in February 2009 that includes the following clause: “All individuals detained at Guantanamo Bay who have been or are expected to be charged with violations of criminal law should be prosecuted in Article III federal courts unless the Attorney General certifies, in cases involving recognized war crimes, that prosecution cannot take place before such courts and can be held in other regularly constituted courts in a manner that comports with fundamental notions of due process, traditional principles of the laws of war, the Geneva Conventions and the Uniform Code of Military Justice.”
Susman emphasized that the ABA opposes any provision authorizing disposition or trial by military commission that does not expressly foreclose such trials or proceedings for U.S. citizens and lawful residents. He also emphasized that U.S. federal courts, respected around the world, are “well-equipped to handle trials of this magnitude and consequence.”
A conference committee negotiating the differences between the Senate and House versions of H.R. 1540 reached an agreement Dec. 12 that they hope will avoid a veto. The detainee provisions are similar to those in the Senate version, but the conferees added language stating that nothing in the military detention provision may be “construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person, regardless whether such covered person is held in military custody.” The conferees did not include House language that would have required military commission trials for all foreign nationals accused of terrorist acts.