Guantanamo captives in 2002. Photo courtesy of Wikimedia.

On October 26, 2001 President Bush enacted the Patriot Act authorizing indefinite detention of non-U.S. citizens; allowing suspected terrorists to be detained without trial until the War on Terrorism ended. On January 11, 2002, the first group of twenty detainees arrived at Guantanamo Bay’s Camp X-Ray, where they were housed in open-air cages with concrete floors. Later that month, President Bush declared detainees’ status as unlawful enemy combatants, which disqualified them from prisoner-of-war protection under Article Five of the Geneva conventions(though protections are still afforded under Article Three).  Human rights advocates argue that this system of indefinite detention circumvents the rule of law, and fails to prosecute terrorist suspects efficaciously, while wrongfully detaining hundreds.Yet on the eve of the ten-year anniversary of the first detainees arriving at Guantanamo Bay, President Obama signed the indefinite detention of alleged terrorists into law, despite his previously voiced reservations.

On December 31, 2011, President Obama signed the National Defense Authorization Act (NDAA), or H.R. 1540, for the 2012 fiscal year. Congress passes this act annually to monitor the budget for the Department of Defense, but this year the bill included highly controversial new provisions that allow indefinite military detention of U.S. citizen terrorist suspects, and requires the detention of suspected foreign enemies. The provisions also apply to any person who supports or aids “belligerent” acts against the United States, whether the person is apprehended abroad or on domestic soil.

U.S. citizens may now be joining the 171 detainees who remain at Guantánamo Bay, most of whom have never been charged with a crime and do not know when they will face trial, if at all.Many of the detainees were subjected to forced disappearances in secret CIA custody prior to being brought to Guantánamo, as well as to torture or other cruel, inhuman or degrading treatment; held incommunicado in solitary confinement for extended periods. Exactly what “interrogation techniques” have been used and what conditions the detainees were subjected to in CIA custody remains classified.

The Obama administration maintains that the law is merely a codification of existing standards and that U.S. citizens are exempt. While U.S. citizens are in fact exempted from the mandatory detention requirement of section 1032 of the new law, section 1031 offers no exemption for American citizens from the discretionary authorization of the U.S. Government to indefinitely detain U.S. citizens without charge or trial. Though supporters and critics disagree on whether the new law is a positive step, they agree that it will mean much more than maintaining the status quo. Instead, the law enshrines military authority to detain and imprison civilians anywhere in the world, without formal charges or trial.. The power to detain is so broad that U.S. citizens may now be taken by the military from any “battlefield.” In support of the bill, Senator Lindsey Graham explained that it will “basically say in law for the first time that the homeland is part of the battlefield” and that people can be imprisoned without charge or trial whether American citizens or not. Senator Graham elaborated that if a U.S. citizen is “thinking about helping al-Qaeda,” then they are an “enemy combatant” and are not entitled to legal representation.

For the past ten years, the indefinite detention system created by the Patriot Act has created a tenuous human rights situation for foreign nationals. The NDAA now extends the danger of human rights violations to U.S. citizens, and in the process violates their constitutional rights. The Fourth Amendment of the United States Constitution grants citizens liberty from unreasonable seizures of their person, while the Fifth Amendment guarantees that one cannot be deprived of life, liberty, or property, without due process of law.  The Sixth amendment provides every U.S. citizen the right to a fair trial in front of a jury with the assistance of counsel. The NDAA provisions openly violate these constitutional rights and perpetuatethe existence and use of the facilities at Guantanamo Bay, now open to the U.S. citizens they purported to protect. President Obama issued a statement saying “I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens . . . doing so would break with our most important traditions and values as a Nation.” Unfortunately, a presidential statement alone is not binding on future administrations’ interpretation of the NDAA. What will be left when the Obama Administration is gone is a law that authorizes human rights abuses and constitutional violations country and worldwide.