The NDAA and the ICCPR: Indefinite detention a violation of international law

As The Hill is reporting, President Obama is getting personally involved pushing for changes to the controversial 2012 National Defense Authorization Act (NDAA), which contains provisions authorizing the U.S. military to pick up and imprison people, including U.S. citizens, without charging them or putting them on trial.

Specifically, the legislation “affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.”

The bill applies to anyone “who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks,” or anyone “who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”

It specifically authorizes “Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force,” referring to the bill passed by Congress more than ten years ago that authorized an endless “war on terror.”

Although the NDAA may appear on its face that it is inapplicable to U.S. citizens, with confusing language which states that “the requirement to detain a person in military custody under this section does not extend to citizens of the United States,” some observers have pointed out that this simply means that while military is not required to hold U.S. citizens, it is still authorized to do so.

As Sen. Lindsey Graham (R-SC) said when arguing for the legislation on the Senate floor, the purpose of the bill is to make it clear to terrorist suspects – including U.S. citizens – that they should “shut up” if they dare to ask for legal representation:

“To those American citizens,” he said, “thinking about helping al Qaeda please know what will come your way: death, detention and prosecution.”

He added: “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.’”

President Obama has threatened to veto the defense bill, which is now being negotiated in conference committee, over provisions mandating military custody of al Qaeda terror suspects. The White House complains mandatory military custody would tie the hands of law enforcement’s counterterrorism efforts.

Its Nov. 17 “Statement of Adminstration Policy” states:

The Administration strongly objects to the military custody provision of section 1032, which would appear to mandate military custody for a certain class of terrorism suspects.  This unnecessary, untested, and legally controversial restriction of the President’s authority to defend the Nation from terrorist threats would tie the hands of our intelligence and law enforcement professionals.  Moreover, applying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets.

So, what the White House appears to be objecting to is not necessarily that Congress is authorizing indefinite military detention, but that the legislation would require such detention. “Any bill that challenges or constrains the President’s critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation would prompt the President’s senior advisers to recommend a veto,” said the White House.

Nevertheless, the human rights community is welcoming the threat of a presidential veto, with Andrea Prasow, senior counterterrorism counsel at Human Rights Watch, saying that “The bill tosses out the most effective tool for countering terrorism — civilian law enforcement — and makes the U.S. military the world’s jailor.”

But as blogger, constitutional lawyer and author Glenn Greenwald points out,

Indefinite, charge-free military detention of people accused — accused – of Terrorism has been fully embraced by both the Bush and Obama administrations (it’s one of the reasons some of us have been so vocally critical). The Obama administration has gone even further and argued that it has the power not merely to detain accused Terrorists (including U.S. citizens) without due process, but to kill them. It is true that the Obama DOJ has chosen to try some accused Terrorists in civilian courts — and this bill may make that more difficult — but the power of military detention already rests with the Executive Branch. And while it would be worse for Congress to formally codify these powers and thus arguably overturn long-standing prohibitions on using the U.S. military on U.S. soil, the real legal objections to such detention are grounded in Constitutional guarantees, and no act of Congress can affect those. In sum, this bill would codify indefinite military detention, but the actual changes when compared to what the Executive Branch is doing now would be modest. That’s not a mitigation of this bill’s radicalism; it’s proof of how radical the Executive Branch under these two Presidents has already become.

Greenwald notes that the NDAA would violate the Constitutional requirement in Art. III, Sec. 3 that “No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

“To deny a citizen the right to a lawyer and go to court on the ground that they’ve ‘betrayed their country’ and thus deserve to be imprisoned without a trial (or, worse, to be assassinated without one) is as violent a betrayal of the U.S. Constitution as one can imagine, literally,” Greenwald writes.

It is also worth pointing out that giving the military the authority to hold anyone – U.S. citizen or not – indefinitely without a trial is a violation of the International Covenant on Civil and Political Rights, which states in Art. 9,

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Ratified by the U.S. Senate in 1992, the ICCPR is legally binding on the United States. As a party to the Covenant, the U.S. is required to submit a report to the UN Human Rights Committee every five years on its compliance with the Covenant’s provisions.

The last report submitted by the United States – in 2005 – was seven years overdue. Regarding the matter of indefinite detention, the 2005 report pointed out that the U.S. Supreme Court has stated “that the United States is entitled to detain enemy combatants, even American citizens, until the end of hostilities, in order to prevent the enemy combatants from returning to the field of battle and again taking up arms.”

The U.S. asserted that “the detention of such individuals is such a fundamental and accepted incident of war that it is part of the ‘necessary and appropriate’ force that Congress authorized the President to use against nations, organizations, or persons associated with the September 11 terrorist attacks.”

The U.S. further articulated “its firmly held legal view on the territorial scope of application of the Covenant,” namely that the ICCPR does not apply to U.S. actions with respect to individuals under its jurisdiction but outside its territory, nor in time of war. The Human Rights Committee objected to this “restrictive interpretation made by the State party of its obligations under the Covenant,” and urged the U.S. to “review its approach and interpret the Covenant in good faith, in accordance with the ordinary meaning to be given to its terms in their context, including subsequent practice, and in the light of its object and purpose.”

Specifically, in its response to the U.S. report, the HRC urged the United States to:

(a) acknowledge the applicability of the Covenant with respect to individuals under its jurisdiction but outside its territory, as well as its applicability in time of war;

(b) take positive steps, when necessary, to ensure the full implementation of all rights prescribed by the Covenant; and

(c) consider in good faith the interpretation of the Covenant provided by the Committee pursuant to its mandate.

The Committee also had particularly harsh words for the U.S. regarding its prosecution of the war on terror, including its indefinite detention policies: “The State party [the U.S.] should ensure that its counter-terrorism measures are in full conformity with the Covenant and in particular that the legislation adopted in this context is limited to crimes that would justify being assimilated to terrorism, and the grave consequences associated with it,” said the Committee.

Further,

The State party should immediately cease its practice of secret detention and close all secret detention facilities.  It should also grant the International Committee of the Red Cross prompt access to any person detained in connection with an armed conflict.  The State party should also ensure that detainees, regardless of their place of detention, always benefit from the full protection of the law.

The State party should ensure, in accordance with article 9 (4) of the Covenant, that persons detained in Guantanamo Bay are entitled to proceedings before a court to decide, without delay, on the lawfulness of their detention or order their release.  Due process, independence of the reviewing courts from the executive branch and the army, access of detainees to counsel of their choice and to all proceedings and evidence, should be guaranteed in this regard.

As the U.S. now moves to not only legitimize indefinite detention, but mandate it under law, consideration should be given to international obligations under the ICCPR, and the previous recommendations from the UN Human Rights Committee.

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