Repeal NDAA

I am of two minds about the Due Process Guarantee Act of 2011, a bill drafted in response to the detention provisions of the recently-enacted National Defense Authorization Act (NDAA).

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The draft law, introduced in the Senate on December 15 and in the House the following day, says that a congressional authorization for the use of military force does not allow the indefinite detention of citizens or lawful permanent residents arrested in the US, unless Congress explicitly provides for such detention. In other words, it would establish a clear statement rule that would offer citizens and resident non-citizens in the US default protection against detention without charge.

Such a rule, had it existed in 2002, would have barred the Bush administration from holding US citizen Jose Padilla for three-and-a-half years without charge, an unnecessary and abusive measure. But it would do nothing to solve the country’s most urgent and glaring detention problem: the indefinite detention of non-resident aliens.

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Hundreds of non-citizens have been detained at Guantanamo over the past decade, of whom 171 remain, all but five without formal charge.

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Most Americans would, I think, be appalled if protection against indefinite detention were allocated along explicit racial or ethnic lines. A law saying that African-Americans could be held without charge, but white people could not, would be condemned as unconstitutional by the man on the street. Yet such distinctions, when they trace the bounds of citizenship, are somehow viewed as natural.

  Counterpunch

Yes, and why is that? Frankly, I think that many, if not most, Americans would be happy to have laws allowing differences between races if they could get away with it. And leaving aside the bizarre fact that the United States has power over foreign nationals not even on American soil (in Cuba of all places – a country we have the strictest of sanctions and animosity against and regularly vilify as a super enemy), the problem lies in why it’s okay to discriminate by nationality and not by race.

The UK’s highest court, faced with a British indefinite-detention law in 2004, struck the law down precisely because it discriminated on the grounds of citizenship.

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“If the threat presented to the security of the United Kingdom by UK nationals suspected of being Al-Qaeda terrorists or their supporters could be addressed without infringing their right to personal liberty,” said one of the Law Lords hearing the case, “it is not shown why similar measures could not adequately address the threat presented by foreign nationals.”

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The reform that makes real sense is not a limited revision of the NDAA to protect Americans, but a principled initiative that bans detention without charge. A bill introduced by Representative Ron Paul, which would repeal one of the NDAA’s key detention provisions, would be a step in that direction, but, with only three cosponsors, the bill has little chance of passing.

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Prospects for meaningful change are slim. In the meantime, unbeknownst to the US public, the relatives of detainees held at Guantanamo hold demonstrations outside of the US Embassy in Kuwait. There is abundant outrage and concern over the indefinite detention of people at Guantanamo, it just isn’t shared here.

Much to our national shame.

...but hey, do what you want...you will anyway.