5 Ways America Is Betraying Its Best Values in Conflicts With Rest of the World
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Ultimately, citizens supposedly remain exempt from the new law, but even so, it was a close call and a signal about where we may be headed. As a recent Congressional Research Service report on the NDAA explained, it is “not intended to affect any existing authorities relating to the detention of U.S. citizens or lawful resident aliens, or any other persons captured or arrested in the United States.”
Still, there remain many fears and much confusion about what protections are retained by U.S. citizens under the Act. Nor did President Obama’s signing statement, asserting that he would “not authorize the indefinite military detention without trial of American citizens,” assuage those fears and confusions. If American citizens were indeed protected from indefinite detention under the new legislation, why was such a signing statement necessary?
There is yet another place where the law seems to have plunged into legal limbo without in any way abridging U.S. actions: the high seas. Earlier this year, the Obama administration announced that it was detaining 15 pirates captured off the coast of Somalia -- and that they were being held without reference to any legal status whatsoever. According to New York Timesreporter C.J. Chivers, “where interdiction ends, an enduring problem begins: what to do with the pirates that foreign ships detain?”
According to the State Department, the pirates will be tried. But where? In the words of Vice-Admiral Mark I. Fox, “We lack a practical and reliable legal finish.” In other words, the U.S. has not yet found a country under whose law it can try them. In the meantime, according to the latest reports, the U.S. Navy continues to confine them. Think of this, conceptually speaking, as a floating Guantanamo intended to hold for-profit enemies.
3. Ever More Secrecy (Ever Less Transparency)
“Necessary” secrecy has been the fallback explanation for much of the information that has been withheld from public scrutiny since 9/11. The military commissions at Guantanamo will proceed, for instance, in part on the claim that, if the accused, many of whom have already been held for a decade, were to be tried in federal court, too much would be revealed that could somehow compromise the country’s security.
To counter civil libertarian claims that secrecy is only an attempt to hide embarrassing or wrongful behavior, the current administration has promised “transparency” in the military commissions scheduled to begin later this year. Efforts at transparency, announced last fall, included a website where documents -- filled with redactions (blacked-out sections) -- could be accessed by the public, and a closed-circuit viewing, albeit with a 40-second delay, for the media and members of the victims’ families.
It has taken next to no time, though, for the government to contradict those vows of transparency, ensuring that, in the polite words of Spencer Ackerman of Wired’s Danger Room blog, Guantanamo will remain “not a place of openness.” Meanwhile, all mail between the detainees and their military defense counsels is being screened, a practice that understandably has those lawyers in an uproar.
In the category of non-transparency and the growth of secrecy as a first principle of government, there is the administration’s elaborate dance of nondisclosure over a memo produced by the Justice Department’s Office of Legal Counsel (OLC). It was evidently written to justify the assassination by drone in Yemen last September of American citizen Anwar al-Awlaki, alleged to have been the “bin Laden of the Internet.”
Until recently, the administration has ducked questions about al-Awlaki’s killing and that of another American citizen, Samir Khan, the editor of the al-Qaeda magazine Inspire. In January, the government announced that Attorney General Eric Holder would soon make public the OLC memo that legalized the killing, but delayed the Attorney General’s explanation until early March. Meanwhile, the New York Times and the ACLU filed a Freedom of Information Act (FOIA) request for its release. On March 5th, Holder finally gave a detailed explanation of the tortured reasoning behind the targeted killing of al-Awlaki, but still, no memo seems to be forthcoming.