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US: House Passes Drastic Detention Measures in Defense Bill

Bill Includes Provisions That Will Hinder Counterterrorism Efforts

(Washington, DC) - The US House of Representatives passed a defense spending bill on May 26, 2011, that includes counterproductive measures to force more military trials at Guantanamo and permanently expand the president's power to militarily target and detain without trial people with no connection to 9/11, Human Rights Watch said today.

"The House demonstrated poor leadership today by tucking into a must-pass defense spending bill provisions that will actually hinder US counterterrorism efforts," said Laura Pitter, counterterrorism advisor at Human Rights Watch. "It is now up to the Senate to make sure that these unnecessary and unwise provisions do not become a permanent part of US law."

The far-reaching provisions included in the National Defense Authorization Act (NDAA) prohibit the prosecution in federal court of all terrorism suspects who are not US citizens, requiring that they be tried in military commissions in Guantanamo. This would extend a ban on federal prosecutions that Congress passed in December 2010 for Guantanamo detainees to include all US terrorism suspects detained anywhere in the world.

Although Attorney General Eric Holder announced a reversal On April 4, 2011, of his decision to try suspects in the September 11, 2001 attacks in federal court and instead announced that they would be tried in military commissions, the administration still strongly backs the use of federal courts to try other terrorism suspects.

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 9/11, federal investigators, intelligence agencies, and courts have resolved over 400 terrorism-related cases while the military system in Guantanamo has resolved exactly six cases - two convicted after trial and four by plea bargain.

Other provisions in the NDAA also expand the president's military targeting power. They authorize, with no end date, the military targeting of undefined forces "associated" with al Qaeda and the Taliban and those "substantially supporting" those forces with no connection to the 9/11 attacks or to any armed conflict.

Those accused of being part of the undefined groups could be detained indefinitely without charge, entitled to only minimal review on paper once a year and a slightly broader review before a military panel every three years. They would not be entitled to have a lawyer represent them or to be presented with all the evidence against them.

The legislation expands executive powers, despite the fact that the administration has said it does not need more authority, and warned such expansion may cause confusion. Two days before the House vote, the administration issued a Statement of Administration Policy (SAP) saying it "strongly objected" to the expanded military targeting provisions saying it would "effectively re-characterize its scope and would risk creating confusion regarding applicable standards."

"If these provisions become part of US law it would be a vast and permanent expansion of the executive branch's power to deprive people of their liberty without trial, powers that could be wielded by this and every future president long after 9/11 is a distant memory," said Pitter. "It's an excessive move, especially when the executive branch has not asked for more authority and has stated unequivocally that it doesn't need it."

Under the provisions, even detainees cleared of any wrongdoing could still be held indefinitely for years without trial for reasons such as being from the same country as someone who committed a terrorist act or their home country being deemed unstable or incapable of tracking the detainee upon return.

"Detention on this basis, instead of individual actual culpability, violates both domestic and international norms and is counter to US values," Pitter said.

The SAP threatened a veto if the transfer restrictions were included in a final bill presented to the president for signature. The statement said that including the provisions "unnecessarily constrains our Nation's counterterrorism efforts and would undermine our national security, particularly where our Federal courts are the best - or even the only - option for incapacitating dangerous terrorists."

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