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June 13, 2013

 

Dear Representative:

 

The Constitution Project (TCP) urges you to cast the following votes on amendments to the FY2014 National Defense Authorization Act (NDAA). Our positions carry forward recommendations and principles from TCP's recently-released Task Force on Detainee Treatment report (available at detaineetaskforce.org) and other relevant TCP statements.

 

"YES" on the Guantanamo Bay Detention Facility Closure Act of 2013 ("Closure Act"), sponsored by Representative Adam Smith (D-WA).

The reasons to close Guantanamo are numerous and compelling: The financial cost is astounding at nearly $1.6 million per detainee annually; Guantanamo continues to undermine our moral standing in the world and to damage our relationships with allies; and - as the most powerful symbol of abuses committed by the United States in the post 9/11 era - it serves as a recruiting tool for those who wish to do us harm. It is also the center of an unfolding humanitarian crisis: over 100 Guantanamo detainees are now on hunger strike, more than 40 of whom are being subjected to the abusive practice of force-feeding.

There is a growing bi-partisan consensus around shuttering Guantanamo, as evidenced by the joint statement from Senators Feinstein and McCain and White House Chief of Staff Denis McDonough, who recently visited the prison: "We continue to believe that it is in our national interest to end detention at Guantanamo, with a safe and orderly transition of the detainees to other locations."[1]  Representative Smith's Closure Act mandates substantial, concrete progress toward that goal. Most importantly, the Closure Act:

  • Strikes from the NDAA a request for $247 million for military construction at Guantanamo beyond the $264 million it costs to operate the prison annually.[2]  There is no justification, particularly in the current economic climate, for spending hundreds of millions of dollars in an attempt to make permanent a prison that by many accounts makes us less safe. The Closure Act also, wisely, cuts off all funding for Guantanamo at the end of 2014, by which time the President has said combat operations in Afghanistan will have ended.  
  • Removes unwarranted foreign transfer certification requirements and replaces them with a reasonable pre-transfer notice requirement, which includes a risk assessment of any proposed transfer. 166 detainees remain at Guantanamo, 86 of whom have long been cleared for transfer by the Departments of Defense, Justice, State, and Homeland Security, the Office of the Director of National Intelligence and the Joint Chiefs of Staff. Although the President has the power under current law to waive the most onerous of the certification requirements and should use it to begin transferring cleared detainees, those requirements remain an unnecessary impediment to swiftly but responsibly moving towards closure. They should not be renewed. 
  • Lifts the ban on transferring Guantanamo detainees to the U.S., which at present prohibits even the possibility of prosecuting any of them in federal courts. Detainees who can be tried in federal courts should be; our established federal judicial system has safely and effectively handled nearly 500 terrorism cases since 9/11. Military commissions, by contrast, have proven unsettled and ineffective, having secured only seven convictions, two of which were overturned by federal courts on appeal because the crime charged was determined not to be a war crime. 
  • Requires that detainees promptly (within 60 days) receive the first of periodic reviews that the executive branch promised would occur more than 15 months ago. There is no compelling reason to continue to hold a detainee who does not pose a significant threat to the United States. Periodic Review Boards, which were established by executive order in March of 2011, are the mechanism for conducting that threat assessment and determining whether detainees not yet cleared for transfer should be. Mandating that the first round of reviews is conducted and completed in short order is an important step forward. 
  • Ensures a timely and serious conversation between the Obama administration and Congress about plans for closing Guantanamo by expediting, and in some cases enhancing, a series of reporting requirements in the NDAA. To fulfill one of those requirements, the administration must identify a disposition (other than continued detention at Guantanamo) for each individual designated for prosecution. According the text of the Closure Act, "such a disposition may include transfer to the United States for trial or detention pursuant to the laws of war, transfer to a foreign country for prosecution, or release." The prospect that detainees who cannot be prosecuted might instead be transferred to the U.S. and held without charge pursuant to a claim of authority rooted in the law of war deeply troubles some, and understandably so. But to the extent that there remain at Guantanamo individuals who are legitimately detainable under the laws of war, who continue to pose a serious threat to the United Sates, and who cannot be prosecuted (including because the evidence against them was obtained through torture or lesser forms of coercion), serious people can disagree about how to handle such cases going forward. The Closure Act does not seek to resolve those disputes, and need not.   

     

"NO" on the prohibition on transferring Guantanamo detainees to Yemen, sponsored by Representative Jackie Walorski (R-IN)

During his May 23, 2013 counterterrorism speech, the President announced that he was lifting the self-imposed ban on transfers to Yemen. We welcomed that development, particularly given that 56 of the 86 Guantanamo detainees cleared for transfer are Yemeni. Transfer decisions should be made on a case by case basis through evaluation of specific and reliable information relevant to determining whether a detainee poses a significant threat to the United States. Re-imposing through legislation a blanket ban on transfers to Yemen would remove that discretionary function from the executive branch (where it properly belongs) and constitute a terrible setback at a time of renewed energy around closure.  

 

"NO" on the provisions addressing U.S. citizens apprehended in the U.S. pursuant to a claim of AUMF authority, sponsored by Representative Bob Goodlatte (R-VA)

This amendment is both unnecessary and unwise. It is unnecessary because nothing in the 2001 Authorization for Use of Military Force (AUMF) can plausibly be construed to suspend habeas corpus for U.S. citizens apprehended within the United States. As Justice Scalia explained in his dissent in Hamdi v. Rumsfeld, a 2004 Supreme Court case involving a U.S. citizen captured on the battlefield in Afghanistan and ultimately held as an "enemy combatant" in a Virginia naval brig, the AUMF "is not remotely a congressional suspension of the writ, and no one claims that it is."[3]  

The amendment is unwise because it presumes that the AUMF authorizes detention of U.S. citizens captured on U.S. soil. We disagree. The Non-Detention Act provides that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress."[4]  Although Hamdi held that the AUMF satisfied the Non-Detention Act for a citizen captured by U.S. forces on the battlefield in Afghanistan,[5] there are compelling arguments that a far clearer statement from Congress is needed to authorize the detention of U.S. citizens elsewhere.[6]  Congress deliberately declined to provide such a statement in the FY2012 NDAA[7] and should not create the impression that it has done so now by passing an amendment that, in large measure, is a poor solution in search of a problem.

* * *

By voting "YES" on Representative Smith's Closure Act, "NO" on Representative Walorski's Yemen transfer ban, and "NO" on Representative Goodlatte's domestic captures / habeas amendment, you will encourage smart and cost-effective detention policies consistent with the rule of law. We urge you to do so.

Please feel free to contact us at sroehm@constitutionproject.org with any questions. Thank you.

 

Sincerely,

Virginia Sloan, President

Scott Roehm, Policy Counsel 


 

[1]  Feinstein, McCain, McDonough Statement on Guantanamo.

[2]  The Cost of Detention at Guantanamo Bay, available here .

[3]  See Hamdi v. Rumsfeld, 542 U.S. 507, xxx (2004) (Scalia, J. dissenting).

[4]  18 U.S.C.  4001(a).

[5]  542 U.S. at 507.

[6]  See, e.g., Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003), rev'd on other grounds, 542 U.S. 426 (2004).

[7]  See National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81,  1021(e), 125 Stat. 1298 ("Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.").

 

 

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Created out of the belief that we must cast aside the labels that divide us in order to keep our democracy strong, The Constitution Project (TCP) brings together policy experts and legal practitioners from across the political spectrum to foster consensus-based solutions to the most difficult constitutional challenges of our time.  TCP seeks to reform the nation's broken criminal justice system and to strengthen the rule of law through scholarship, advocacy, policy reform and public education initiatives. Established in 1997, TCP is based in Washington, D.C.