Smith amendment helps address detainee question

It’s become increasingly difficult over the years for Democrats and Republicans in Congress to get together and do something productive. Factor in an election year, and it’s down-right impossible.
 
Or is it?
 
Earlier this week, Representative Adam Smith (D-Wash.), ranking member of the House Armed Services Committee, announced that he will be pushing for an amendment to the National Defense Authorization Act (NDAA) that would ban indefinite detention within the United States and reverse a dangerous provision of law that could force the transfer of some terrorism suspects into military custody.
 
Representative Smith, a Democrat, will be joined by Representative Justin Amash, among other Republicans, in what promises to be one of 2012’s few truly bi-partisan initiatives. What’s more – and this you’re not going to believe – it’s an initiative that makes a whole lot of policy sense.
 
Let’s take a step back to see how we got here.
 
Last year, in pushing through the defense authorization bill, Congress enacted a set of provisions on detainee policy that were a fundamental affront to the rule of law and our national security. Two provisions in particular stood out.
 
First, Congress codified the authority of the military to pick up and indefinitely detain without charge or trial individuals suspected of terrorism. No probable cause. No jury trial. No guilt beyond a reasonable doubt.
 
Although the government had been exercising this authority for a decade in the case of detainees held in Afghanistan and Guantanamo, some proponents of the new NDAA detainee provisions, such as Senator Lindsey Graham (R-S.C.), warned of new threats among us, here at home. To these members of Congress, America is now the battlefield, and anyone determined to have substantially supported terrorism could be subject to lifetime imprisonment without ever facing charges.

As a matter of law, the NDAA itself does not explicitly speak to indefinite detention in the United States. Instead, it leaves in place “existing law” – the 2001 Authorization for the Use of Military Force (AUMF) – the full scope of which has not been authoritatively construed by the Supreme Court. As a result of the unsettled nature of existing law, the military has on two occasions in the past claimed authority under the 2001 AUMF to indefinitely detain individuals picked up in the United States, against the better counsel of the Constitution. Although the Obama Administration has stated that it won’t repeat these mistakes, nothing in current law prevents this or a future administration from claiming such extraordinary authority.
 

Second, Congress, in a stroke of genius during last year’s NDAA debate, included a provision that forces the military to take custody of a category of foreign terrorism suspects, absent a presidential waiver. This mandatory military custody policy is so extreme that it was opposed by virtually every national security expert that looked at it, including former Bush administration officials. The CIA Director opposed it. As did the Secretary of Defense, FBI Director, and Director of National Intelligence.
 
Retired generals and admirals pointed out that forcing the military to take custody of terrorism suspects would give U.S. armed forces a mission they neither want nor need. Current and former national security professionals emphasized that it simply doesn’t make sense to undermine law enforcement operations for the sake of an ideological belief that terrorism suspects should be in military custody.  Though the president issued a policy directive limiting the application of the mandatory military custody provision, it still remains on the books, subject to future abuse.
 
That brings us to today: the Smith amendment picks up where the Congress failed during the NDAA debate. The Smith amendment would ban indefinite military detention, and military commission trials, within the United States. It would also repeal, in full, the mandatory military custody requirement, and ensure that the military will not be forced to take custody of any terrorism suspects. Importantly, it would put forth civilian courts, established under Article III of the Constitution, as the lawful, appropriate, and time-tested method for handling terrorism threats in the United States
 
Raha Wala is an advocacy counsel at Human Rights First.
 

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