Senate Committee’s Provisions Would Hinder Counterterrorism Efforts
June 24, 2011
The Senate committee’s defense bill foolishly rejects the role of civilian law enforcement in countering terrorism. It instead creates a parallel system of military justice for terrorism suspects, a hallmark of martial law states, not democracies.
Andrea Prasow, senior counterterrorism counsel

(Washington, DC) - Provisions in the US Senate Armed Services Committee's defense spending bill threaten to eliminate the essential role of civilian law enforcement in countering terrorism, Human Rights Watch said today.

The National Defense Authorization Act (NDAA), to authorize funding for most Defense Department operations, was made public by the committee on June 24, 2011. The committee had reviewed it in a closed session and voted 25 to 1 to approve the bill on June 17. As the full Senate considers the bill, lawmakers should remove or amend military custody and trial provisions, as well as detainee transfer restrictions that would dangerously impede US counterterrorism efforts, Human Rights Watch said.

"The Senate committee's defense bill foolishly rejects the role of civilian law enforcement in countering terrorism," said Andrea Prasow, senior counterterrorism counsel at Human Rights Watch. "It instead creates a parallel system of military justice for terrorism suspects, a hallmark of martial law states, not democracies." 

The Senate committee bill provides for mandatory military detention for certain foreign terrorism suspects, making it difficult them to be tried in federal courts. Military custody could also be imposed on US citizens in the same category of terrorism suspects for offenses committed inside the US. The bill also would place permanent restrictions on transferring detainees from the US military detention facility at Guantanamo Bay, Cuba even if they have been approved for release by the president.

In May, the House of Representatives passed a version of the defense authorization bill that includes provisions that would mandate more military commission trials at Guantanamo and would permanently expand the president's power to attack as military targets and detain without trial people with no connection to the September 11, 2001 attacks. After the full Senate passes its version of the bill, it must be reconciled with the House version before it is sent to the president for signature or veto.

One significant improvement of the Senate committee bill over the House version, Human Rights Watch said, is that it would not bar the transfer of current Guantanamo detainees to the US for prosecution, although such transfers are effectively barred by other spending legislation.  The Obama administration has indicated it still strongly backs the use of federal courts to prosecute some terrorism suspects, despite Attorney General Eric Holder's reversal of his announced decision to try those accused of planning the 9/11 attacks in federal court and to try them before military commissions instead.

The military commissions at Guantanamo have been marred by procedural irregularities, the use of evidence obtained by coercion, inconsistent application of varying rules of evidence, poor translation, and lack of public access. Since the 9/11 attacks, federal investigators, intelligence agencies, and courts have resolved over 400 terrorism-related cases while the military commission system in Guantanamo has resolved only six cases.
Prior to the House vote on the defense authorization bill in May, the Obama administration issued a Statement of Administration Policy outlining several areas that it believed so seriously encroached on executive authority to determine how to prosecute terrorism suspects that the president would veto the defense spending bill if it included them. Nonetheless, the Senate committee bill includes several provisions, such as a ban on transferring many detainees out of Guantanamo, that would harm efforts to prosecute terrorist suspects fully and fairly, Human Rights Watch said.

"The president should veto the defense bill if it appears on his desk with provisions that prevent lawful efforts to bring terrorist suspects to justice or the release of people who shouldn't be detained," Prasow said. "Not only would these provisions take away federal courts as an effective tool for fighting terrorism, but they would further undermine the US reputation abroad."

The Senate committee bill contains detainee transfer restrictions that would allow the government to hold detainees cleared of any wrongdoing indefinitely without trial for reasons such as being from the same country as someone who committed a terrorist act. While transfer restrictions have been passed by Congress previously, they expired annually; the Senate Committee bill seeks to make them permanent. While the Senate committee bill includes a provision that would allow the defense secretary to waive the ban on transfers in the interests of national security, setting such a high bar would make transfers unlikely, even for detainees the administration wishes to release, Human Rights Watch said.

Among other provisions, the Senate committee bill also would require a new procedure to review the status of newly captured detainees the US intends to hold under the laws of war. Such detainees would have to be brought before a military judge and could have the assistance of military counsel in contesting their legal status. The Senate Committee bill also reaffirms the president's executive order of March 7, which set out a review mechanism for detainees currently at Guantanamo, although the bill makes that review process only advisory, with the final decision on release resting with the defense secretary.  

"If the US hopes to promote the rule of law in places like the Middle East, it needs to take a hard look at the policies it is promoting at home," Prasow said. "Mandatory military detention for terrorism suspects, indefinite detention for years to come, even the possibility that US citizens could be held without trial at Guantanamo, sends the worst kind of message abroad."