New NDAA Keeps Indefinite Detention, Blocks Guantanamo Closure

President Barack Obama has signed the $633 billion National Defense Authorization Act of 2013.

President Barack Obama has signed the $633 billion National Defense Authorization Act of 2013 along with a signing statement objecting to many of its provisions – but the provision allowing the indefinite detention of American citizens suspected of supporting terrorism without charge or trial was not one of them.

The president signed the NDAA on Wednesday, January 2 despite his earlier threats to veto it over prohibitions against closing the Guantanamo Bay detainment and interrogation camp, which he had promised to shut down on January 22, 2009 – two days after his first term inauguration. Obama objected to a section of the annual NDAA that restricts the president’s ability to transfer detainees from Guantanamo for repatriation or resettlement in foreign countries or to transfer them to the United States for prosecution in federal criminal court.

The law also includes a new provision that sounds good – it requires the military to accommodate the conscience, moral principles or religious beliefs of all members of the armed forces – but in effect could lead to claims of a right to discriminate. Republicans said the provision would protect military service members including chaplains from being forced to perform same-sex marriages or take other actions that might offend their religious beliefs, but critics feared the provision could make allowances for acts of discrimination against gay service members and religious proselytizing, which has already raised concerns in Afghanistan.

Obama called that provision "unnecessary and ill-advised...as the military already appropriately protects the freedom of conscience of chaplains and service members." He said the Defense Department will "not permit or condone discriminatory actions that compromise good order and discipline or otherwise violate military codes of conduct." He said his administration remains "fully committed" to implementing the repeal of the "don't ask, don't tell" policy.

Although the president objected to these and other provisions, but he said needed to sign the bill despite his reservations. “Our Constitution does not afford the President the opportunity to approve or reject statutory sections one by one. I am empowered either to sign the bill, or reject it, as a whole. In this case, though I continue to oppose certain sections of the Act, the need to renew critical defense authorities and funding was too great to ignore.” In a number of cases the president asserted that if a provision “violates constitutional separation of powers principles, my Administration will implement it to avoid the constitutional conflict” and if a provision “obstructs the traditional chain of command. I will implement this provision in a manner consistent with my authority as the Commander in Chief of the Armed Forces and the head of the executive branch.”

Last year the annual NDAA passed in a fury of controversy over provisions that gave the military unprecedented power to seize suspected terrorists anywhere in the world, including American citizens on U.S. soil, and keep them locked up indefinitely without charge or trial. The bill gave the president and future presidents the unfettered authority to wage war against Al Qaeda, the Taliban and “associated forces,” without defining what those might be. It made those designated as “enemy combatants” subject to indefinite detention, extraordinary rendition and military tribunals without requiring their knowledge or willful intention to provide “material’ or “substantial support. All of those provisions remain in the new version of the NDAA without any objection from the president.

When the NDAA was proposed and passed last year, people in Indian country worried that the legislation could be used against them for asserting their rights to self-determination and sovereignty or for protecting their lands and resources against exploitation by governments or corporations. Their concern followed two incidents in which the government conflated American Indians with terrorism—the military’s use of Geronimo as the code name for Osama bin Laden and the revelation that military commission prosecutors had compared the Seminole Indians to terrorists and had cited Andrew Jackson’s murderous actions against the Seminoles as a justification and precedent for prosecuting Al Qaeda suspects.

Just as they did last year, civil rights advocates strongly criticized the 2013 bill and the president for signing it into law. Human Rights Watch and 27 other organizations sent a letter to Obama in November, urging him to veto the NDAA if it impeded his ability to transfer detainees out of Guantanamo Bay. The American Civil Liberties Union roundly criticized the final version of the bill and the president hours after he signed it into law. "President Obama has utterly failed the first test of his second term, even before inauguration day,” said Anthony Romero, executive director of the American Civil Liberties Union. “His signature means indefinite detention without charge or trial, as well as the illegal military commissions, will be extended. He also has jeopardized his ability to close Guantanamo during his presidency. Scores of men who have already been held for nearly 11 years without being charged with a crime—including more than 80 who have been cleared for transfer—may very well be imprisoned unfairly for yet another year. The president should use whatever discretion he has in the law to order many of the detainees transferred home, and finally step up next year to close Guantanamo and bring a definite end to indefinite detention."

A lawsuit filed by former New York Times reporter and Pulitzer Prize winner Chris Hedges, MIT professor Noam Chomsky, Daniel Ellsberg, and others challenging the constitutionality of the NDAA is moving forward. The plaintiffs filed the lawsuit in January 2011, asserting that the NDAA affects their free speech and freedom to assemble rights and that the language of the law is so vague that it “provokes fear” that they could be seized and subjected “to indefinite or prolonged military detention” for exercising their constitutionally protected right to political speech. Last May, federal court Judge Katherine Forrest of the U.S. District Court for the Southern District of New York issued a permanent injunction against the implementation of the NDAA’s indefinite detention provision on the grounds that it failed “pass constitutional muster.” But that ruling was put on hold by a 2nd Circuit Court of Appeals judge in September. On December 14, Supreme Court Justice Ruth Bader Ginsburg denied the plaintiffs’ efforts to reinstate the injunction, but the case against the law is still proceeding in the Second Circuit Court.