The Defense Bill and Rendition of US Citizens

maigi/<a href="http://www.shutterstock.com/cat.mhtml?lang=en&search_source=search_form&version=llv1&anyorall=all&safesearch=1&searchterm=prison&search_group=&orient=&search_cat=&searchtermx=&photographer_name=&people_gender=&people_age=&people_ethnicity=&people_number=&commercial_ok=&color=&show_color_wheel=1#id=57102619&src=33743fbec0fdbca5fe057ee081dee1d1-1-29">ShutterStock</a>

Fight disinformation: Sign up for the free Mother Jones Daily newsletter and follow the news that matters.


My colleague Nick Baumann writes about the National Defense Authorization Act giving congressional sanction to the idea of handing over US citizens to foreign security forces for the purpose of detention or interrogation:

Eviatar adds that there are “a whole lot of scenarios” where the government might want to transfer a suspected terrorist—even a US citizen—to foreign custody. For example, the administration might not want to go through the political mess of determining whether to send a suspect to Gitmo, try him in a military commission, or use the civilian system. The administration might also want to avoid the mandatory habeas corpus review that would come if the US held the suspect itself. In such a case, transferring the suspect to a foreign security force might present an appealing option.

Baumann notes that Americans have already been detained by foreign governments—including during the Obama administration, saying, “Although the program raises civil liberties concerns, especially in cases where American detainees claim to have been abused in foreign custody, it’s not necessarily illegal—and now, with the passage of the NDAA, the transfer of terrorist suspects to foreign countries has formal congressional sanction.”

Although it may not technically be illegal based on existing statutes, it’s a good bet trying to avoid habeas review through proxy detention is unconstitutional. In 2004, attorneys for an American citizen named Ahmed Omar Abu Ali filed a habeas petition charging that Ali was being detained and tortured by Saudi security forces at the behest of the United States. Judge John D. Bates, a Republican appointee whose ideological views are fairly heterodox (he ruled that several non-Afghan Bagram detainees had habeas rights, but dismissed the ACLU’s lawsuit against the US’ targeted killing program) refused to dismiss the petition. Ali was later transferred to civilian custody and convicted in federal court on terrorism charges and plotting to kill President George W. Bush.

Nevertheless, at the time Bates wrote that “the United States may not avoid the habeas jurisdiction of the federal courts by enlisting a foreign ally as an intermediary to detain the citizen,” and that simply being held abroad did not “extinguish the fundamental due process rights of a citizen of the United States to freedom from arbitrary detention at the will of the executive.” Key here is that unlike Yaser Esam Hamdi, an American citizen who was captured while fighting in Afghanistan, Ali was arrested in a Saudi classroom. He was nowhere near a battlefield. 

Put simply, when you’re an American citizen your constitutional rights are supposed to stay with you wherever you are. Granted, we’re living in a time when the government has expressly said it has the authority to ignore those rights if you’re abroad and supposedly beyond the reach of local or international authorities and suspected of being a member of al Qaeda. Under those circumstances, after all, this administration has asserted the authority to kill you.

As Bates’ ruling in 2004 suggests however, proxy detentions may be able to be evaluated by a judge in the way that so-called “battlefield” decisions (like which Americans to fire missiles at) aren’t. Congressional authorization can’t possibly justify the executive branch asserting “the unreviewable power to separate an American citizen from the most fundamental of his constitutional rights,” and Bates is probably not the only judge who would see things that way. 

AN IMPORTANT UPDATE

We’re falling behind our online fundraising goals and we can’t sustain coming up short on donations month after month. Perhaps you’ve heard? It is impossibly hard in the news business right now, with layoffs intensifying and fancy new startups and funding going kaput.

The crisis facing journalism and democracy isn’t going away anytime soon. And neither is Mother Jones, our readers, or our unique way of doing in-depth reporting that exists to bring about change.

Which is exactly why, despite the challenges we face, we just took a big gulp and joined forces with the Center for Investigative Reporting, a team of ace journalists who create the amazing podcast and public radio show Reveal.

If you can part with even just a few bucks, please help us pick up the pace of donations. We simply can’t afford to keep falling behind on our fundraising targets month after month.

Editor-in-Chief Clara Jeffery said it well to our team recently, and that team 100 percent includes readers like you who make it all possible: “This is a year to prove that we can pull off this merger, grow our audiences and impact, attract more funding and keep growing. More broadly, it’s a year when the very future of both journalism and democracy is on the line. We have to go for every important story, every reader/listener/viewer, and leave it all on the field. I’m very proud of all the hard work that’s gotten us to this moment, and confident that we can meet it.”

Let’s do this. If you can right now, please support Mother Jones and investigative journalism with an urgently needed donation today.

payment methods

AN IMPORTANT UPDATE

We’re falling behind our online fundraising goals and we can’t sustain coming up short on donations month after month. Perhaps you’ve heard? It is impossibly hard in the news business right now, with layoffs intensifying and fancy new startups and funding going kaput.

The crisis facing journalism and democracy isn’t going away anytime soon. And neither is Mother Jones, our readers, or our unique way of doing in-depth reporting that exists to bring about change.

Which is exactly why, despite the challenges we face, we just took a big gulp and joined forces with the Center for Investigative Reporting, a team of ace journalists who create the amazing podcast and public radio show Reveal.

If you can part with even just a few bucks, please help us pick up the pace of donations. We simply can’t afford to keep falling behind on our fundraising targets month after month.

Editor-in-Chief Clara Jeffery said it well to our team recently, and that team 100 percent includes readers like you who make it all possible: “This is a year to prove that we can pull off this merger, grow our audiences and impact, attract more funding and keep growing. More broadly, it’s a year when the very future of both journalism and democracy is on the line. We have to go for every important story, every reader/listener/viewer, and leave it all on the field. I’m very proud of all the hard work that’s gotten us to this moment, and confident that we can meet it.”

Let’s do this. If you can right now, please support Mother Jones and investigative journalism with an urgently needed donation today.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate