January 4, 2012, New York – In response to President Obama’s New Year’s Eve signing of the controversial National Defense Authorization Act, the Center for Constitutional Rights (CCR) issued the following statement:
“The Center for Constitutional Rights strongly condemns the U.S. Congress for passing, and President Obama for signing, the 2012 National Defense Authorization Act (NDAA), which effectively endorses war without end and makes indefinite military detention without charge or trial a permanent feature of the American legal system. This is the first time since the McCarthy Era that Congress has written indefinite detention into law. We had hoped that President Obama—a constitutional law professor and believer in the aspirational course of American justice—would uphold his promise to veto this radical law that threatens to roll back both decades-old legislation enacted to combat McCarthy-era excesses and 19th-century limitations on domestic military policing. At the same time that heroic activists in the Arab world are risking their lives to rid themselves of the remnants of their authoritarian and militaristic regimes, the United States is embracing practices contrary to the basic aspirations of any constitutional democracy.
The NDAA reauthorizes and extends the 2001 Authorization for Use of Military Force, which has been used to justify the detention of men at Guantánamo without charge or trial for the past ten years. The NDAA also goes further and broadens the range of activities that warrant indefinite detention to include undefined ‘substantial support’ for terrorism. In addition, the NDAA contains no geographic limitation and allows the president to indefinitely detain even American citizens. President Obama did pledge in a signing statement not to use this law to detain American citizens but this provides little comfort, as signing statements have no legal force and he has repeatedly failed to uphold similar promises in the face of political pressure—including his pledge to close Guantánamo within his first year in office. More important, even if President Obama were to keep this promise, the law authorizes a future President, such as a President Romney, President Bachman, or President Perry, to use this authorization in the most aggressive manner available.
Whatever ambiguity the legislation creates regarding the detention of American citizens, it clearly requires the military detention of non-citizens suspected of an association with al Qaeda or suspected of having committed terrorist acts, even within the territorial United States. The U.S. Army, rather than civilian law enforcement, will be required to make arrests on U.S. soil; and military detention, not the basic constitutional guarantees of our civilian justice system must be deployed. No one should be held indefinitely without the opportunity to challenge their detention. Human rights are not limited by citizenship.
The NDAA continues to place utterly unnecessary and onerous obstacles to closing Guantánamo. The law prohibits the president from transferring anyone to the U.S. for trial, and also prohibits the transfer of innocent detainees to their home countries or to third countries willing to resettle them unless the Defense Department effectively guarantees the detainee will never again commit wrongdoing. According to the Defense Department, these conditions are nearly impossible to satisfy, which effectively prevents the transfer and resettlement of 89 men – over half of the 171 currently detained in Guantanamo – who have been unanimously cleared for release by the CIA, FBI, NSC, and Defense Department. Even as we are contemplating a peace deal with the Taliban and have, according to the Defense Department, largely vanquished al Qaeda, the NDAA guarantees that the U.S. carry on a dangerous war paradigm into a second decade."