Torture is prohibited by the Eighth Amendment to the US Constitution and the Geneva Conventions (signed by the United States). But after the onset of the “war on terror,” the Bush administration crafted a legal justification for so-called “enhanced interrogation techniques” such as waterboarding and authorized the military to use these techniques to torture detainees.
The Sixth Amendment promises a speedy and public trial, and the Fifth and Fourteenth amendments guarantee due process to protect from arbitrary denial of life, liberty or property.
The Senate Intelligence Committee has produced a lengthy report, much of it classified, about the CIA’s torture program. While most of it has not been released publicly, the record is clear that US officials engaged in unlawful torture, yet the Obama Department of Justice has declined to pursue any criminal prosecutions. Failing to hold accountable those who authorized and committed torture not only sends the wrong message to the international community, it lays the foundation for future Administrations to engage in torture.
In January 2002, the first prisoners arrived at Guantánamo Bay Detention Center. Since then, there has been a systematic effort to deprive these detainees of even the most basic legal rights, and strand them in permanent legal no-man’s land.
On the last day of 2011, President Obama signed the National Defense Authorization Act (NDAA). The NDAA contains provisions that could allow indefinite and arbitrary military detention, without a trial or day in court, of anyone accused of any “belligerent act” or terror-related offense—including “material support” allegations based strictly on speech or association. It essentially subjects everyone within the US (including citizens, legal residents, and visitors) to the same lawless standards at work in Guantánamo Bay.
The NDAA subjects these individuals to arbitrary detention without trial, denying the Fifth Amendment’s guarantee of due process and Sixth Amendment rights to challenge evidence and confront one’s accusers. The NDAA also endangers First and Fourth Amendment rights, because the PATRIOT Act expanded the definition of “material support for terrorism” to include crimes of speech and association even by defendants who neither committed nor ever intended to support violence.
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More than a decade after they were brought to Guantánamo, 40 men remain detained there, including five who have been approved by the U.S. government for transfer out of the detention camp. Most of the men have never been charged or convicted of any crime.