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The Terror Tuesday Trinity: NDAA, Guantanamo, drone strikes

The connection between these components of the government’s ‘war on terror’ arsenal came into clear focus over the past week.

On November 29, the Senate voted 67-29 to pass Sen. Dianne Feinstein’s Amendment 3018 to the NDAA of 2013: “Sec. 1032. Prohibition on the Indefinite Detention of Citizens and Lawful Permanent Residents.”

The Amendment states: “An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention.”

Here are three reasons why this is not good news.

First, by failing to extend due process protections to all persons within the United States as the Fifth Amendment requires, but instead reserving them for citizens and green card holders, it is openly discriminatory.

Second, it puts everyone’s vital Constitutional protections on shaky ground by including language that gives Congress the power to skirt the Constitution and pass an act that “expressly authorizes such detention.”

And third, it undermines the Posse Comitatus bar on the military acting in a domestic law enforcement capacity.

As the ACLU argues, by focusing on protections for citizens and green-card holders, the Amendment implies “that non-citizens could be militarily detained. The goal should be to prohibit domestic use of the military entirely…That principle would be broken if the military can find an opening to operate against civilians here at home, maybe under the guise of going after non-citizens. This is truly an instance where, when some lose their rights, all lose rights – even those who look like they are being protected.

The ACLU joined 19 other organizations in a failed last minute effort to defeat Sen. Feinstein’s Amendment.

The time for new amendments to be added to the Senate version of the NDAA has now passed. In the next few days or weeks, it will be reconciled with the House version and then go to the President’s desk.

The question is, will President Obama sign it?

Here is where Guantanamo comes in.

The NDAA of 2013 includes language that makes it nearly impossible to transfer prisoners out of Guantanamo – either to the US, to a third country, or to their country of origin.

On November 27, the ACLU and 28 other legal and human rights organizations sent a letter to President Obama urging him to veto it “if it impedes your ability to close Guantanamo.” The letter points out that four of his five immediate predecessors (Carter, Reagan, Clinton, George W. Bush) had each vetoed NDAA legislation.

On November 29, President Obama announced he would veto it unless the provisions tying his hands on Guantanamo that were included in the NDAA of 2012 were changed.

On that same day, the Senate passed an Amendment endorsing such restrictions.

This was reportedly a response to the news that the Government Accountability Office (GAO) had forwarded a report to Sen. Feinstein in her capacity as chair of the Senate Select Committee on Intelligence entitled Guantanamo Bay Detainees: Facilities and Factors for Consideration if Detainees were Brought to the United States.

Featured in the report is a history (with photos) of the ‘war on terror’ phase of Guantanamo Bay, where 779 detainees held since January 2002 have been overseen by 1,800 service personnel and civilian employees, and 4,200 other individuals in various logistic capacities.

The report then surveys (again with photos) Bureau of Prison facilities in the United States where some hundreds of inmates are currently housed who were convicted on terrorism charges. Because these prisons are crowded and the Department of Justice does not consider itself to have authority to maintain the custody of Department of Defense (DOD) prisoners detained under the AUMF, the report concludes that DOD custody is more suitable.

According to the GAO, there are six military facilities within the United States – from Navy brigs to Ft. Leavenworth in Kansas and McChord in Washington State –that have plenty of empty space and the capacity to deal with transferred Guantanamo detainees.

One wonders if this is where those US residents would be sent if the military does start apprehending people on US soil who are neither citizens nor green card holders -– assuming the Feinstein Amendment is in the final version of the NDAA and President Obama does what he did last year and reverses his vow to veto the legislation.

How do Obama’s drone strikes that have killed some 2,500 people – most far from an actual battleground and many of them civilians – fit into the picture?

Two recent developments lend weight to speculation that the Obama Administration has accelerated the lethal drone program because it doesn’t know what to do with ‘targets’ that are captured instead of killed. After all, the President says he wants to close Guantanamo, not re-stock it.

“Family, neighbors of Yemini killed by US drone wonder why he wasn’t taken alive.”

This was the headline of a November 28 piece by Adam Baron of McClatchy Newspapers. It describes the November 7th death by drone of Adnan al Qadhi near a school in the town were he lived, just nine miles from Yemen’s capital, Sanaa.

That town, Beit al Amhar, was hardly inaccessible. Instead, it is “home to much of the military’s leadership,” and the birthplace of Yemen’s former president and long time US ally, Ali Abdullah Saleh.

And neither was the well-known al Qadhi inaccessible. From a prominent family, he was an al Qaeda sympathizer who may or may not have participated in an attack on the American embassy back in 2008. According to his relatives, he was not currently involved in AQAP activities. Recently, al Qadhi had been part of a team “that mediated between the government and AQAP-linked militants who’d seized control of the central town of Rada.”

His brother said, “We could have made sure he turned himself in. If Adnan was guilty of any crime, then arrest him, put him on trial.” And in the words of Yemeni political analyst Abdulghani al Iryani, “It is nearly inconceivable to imagine that he could not have been taken into custody alive.”

The Administration’s claim that it sends in the drones as a “last result” when capture is impossible or a terrorist attack is “imminent” was further debunked by documents obtained by Judicial Watch through a FOIA lawsuit.

US Embassy documents reveal that Anwar al-Awlaqi, the American citizen killed by a drone strike in Yemen in September 2011, had been held in US custody for at least eight months during the 2006 -2007 period. It was the FBI that ordered his release.

Not only that: according to one document, “the embassy in Yemen was instructed to send Awlaqi a letter urging him to come to the embassy to pick up an important document but not tell him what it was. The document was, according to Judicial Watch, a revocation of his passport, and the treatment of Awlaqi was part of a “catch and release” program for terrorists which both the Bush and Obama Administrations carried out.

The more than 70 drone strikes that Obama’s CIA has carried out in Yemen alone have engendered deep resentment and dread across the country and bolstered the ranks of AQAP. And although the top Pentagon lawyer has held out the hope that the ‘war against Al Qaeda and its affiliates’ will one day come to an end, there is little sign that either the DOD or CIA are preparing to pull in their horns.

Instead, the roles of the CIA (which has ballooned in size since the 9/11 attacks) and the DOD seem likely to further merge, as the Pentagon’s Defense Intelligence Agency (DIA) recruits an additional 1,600 “intelligence collectors” to operate globally, reporting findings to the CIA. The CIA will for the most part remain in charge of drone strikes outside declared battle zones.

According to The Washington Post’s Greg Miller, the DIA-CIA convergence was being spearheaded by Michael Vickers, the top intelligence official at the Pentagon and a CIA veteran, Leon Panetta, a former CIA director and the current secretary of the Defense Department, and retired Army Gen. David Petraeus, who was until his recent resignation head of the CIA.

Miller writes that the DIA “has long played a major role in assessing and identifying targets for the US military, which in recent years has assembled a constellation of drone bases stretching from Afghanistan to East Africa. The expansion of the agency’s clandestine role is likely to heighten concerns that it will be accompanied by an escalation in lethal strikes and other operations outside public view.”

So it seems unlikely that the unholy trinity of the NDAA, Guantanamo and drone strikes will at any time in the foreseeable future be replaced by the Constitution, international law and diplomacy.

What this means for America’s international profile is summed up by Yemeni lawyer Heykal Bafana:

“America has lost the war. If you trash your own values, if you rip up your Constitution and destroy the very freedoms that you say define America just for the purpose of this ‘war against terror,’ then you’ve won the war for al-Qaeda. Because there is no longer an America that’s recognizable.”

© 2021 ACLU of Massachusetts.