The U. S . Senate Judiciary Committee has posted notice that it will hold a hearing on the “Due Process Guarantee Act: Banning Indefinite Detention of Americans,” a bill sponsored by California Senator Dianne Feinstein. The bill aims to reverse certain provisions of the recently passed National Defense Authorization Act of 2012 (“NDAA”) permitting the indefinite detention of American citizens without charge or trial. This provision of the NDAA has created a social media firestorm, and support for Feinstein’s bill is bi-partisan...but one never knows when the Republican minority in the Senate will pull a filibuster.
In what can only be viewed as a positive sign that the Committee is sympathetic to Feinstein’s bill, Committee Chair Sen. Patrick Leahy (D-VT) has issued a direct invitation to renowned civil liberties attorney Stewart “Buz” Eisenberg to offer testimony on the bill.
Under Section 1021 of the NDAA, the President is authorized to permit the military to detain any person "who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners," and anyone who commits a "belligerent act" against the U.S. or its coalition allies in aid of such enemy forces, under the law of war, "without trial, until the end of the hostilities.” The law further authorizes trial by military tribunal or transfer of the detainee to "any other foreign country, or any other foreign entity.”
Before NDAA was passed, Americans took to social media, opposing this wholesale destruction of almost all of the provisions of the U.S. Bill of Rights addressing criminal procedure, particularly the 6th Amendment, which states,
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
The provisions were included in a bill that was primarily meant to fund the military, so some legislators voted for the bill while expressing misgivings about the indefinite detention provision. In response, the Due Process Guarantee Act of 2011 was introduced as S.2003 in the Senate on December 15, 2011, and referred to the Judiciary Committee. (It has since also been introduced in the House where it is known as H.R. 3702, where it has already garnered 50 co-sponsors.) The bill specifically prohibits the indefinite detention of American citizens as permitted under NDAA.
The Committee has scheduled its first hearing for Wednesday, February 29 at 10:00 am in Room 226 of the Dirksen Senate Office Building. As is typical of Committee hearings, various experts have been invited to testify at the hearing; the invitation of Attorney Stewart “Buz” Eisenberg suggests that the Committee is willing to listen to the horrors of indefinite detention. Eisenberg is Of Counsel to Weinberg & Garber, P.C. of Northampton, MA, serves as President of the International Justice Network, and is a Professor of Civil Liberties at Greenfield Community College. Since 2004 he has provided direct representation to four detainees at Guantánamo Bay.
A March 22, 2008 article in the Daily Hampshire Gazette entitled “Mission: Guantanamo Justice ('Hell's Lobby')” by Kristen Palpini describes Eisenberg’s work with the people indefinitely detained in Guantanamo:
“ ‘There is torture at Guantanamo Bay’, said Eisenberg.
He claims to have seen the results - a crippled hand, men walking with permanent limps, others with physical disfigurements and mental scars.
‘There is little access to doctors for detainees,’ said Eisenberg.
One of his clients has a skin disease. Eisenberg suspects it is pellagra, a disease often associated with a lack of niacin or protein in a person's diet. The man's skin flakes off into small piles on the desk as Eisenberg talks with him.
There is no human contact for detainees beyond orders from soldiers, said Eisenberg. Detainees are kept in isolated cells almost 24 hours a day. Captives' cells are staggered so men are not within speaking distance of someone who would understand their language.
There is no rest at Guantanamo, said Eisenberg. The buzzing bulbs that light detainee cells and prison halls are never turned off.
This is hell's waiting room, as Eisenberg sees it, and he wants it shut down for good.
'The best way to close Guantanamo is to open Guantanamo,' said Eisenberg, who often speaks at colleges and forums about his Guantanamo Bay experience. 'Americans don't want this done in their name.'”
A year later, while still representing these clients, Eisenberg wrote an article for the Spring 2009 edition of the Northeastern Law Journal, Vol. 1, No. 1, entitled “Guantanamo Bay: Redefining Cruel and Unusual”
He writes,
“Representing Guantánamo detainee Mohammed Abd Al Al Qadir (Guantánamo Internee Security Number 284) has been an experience unlike any other of my legal career. While serving as counsel for Mr. Al Qadir (also known as Tarari Mohammed), …I encountered numerous obstacles unique to Guantánamo cases. Convoluted administrative procedures, allegedly implemented to protect national security, made representation difficult for lawyer and client alike.
In 2004, the U.S. Department of Defense issued procedures to assess the need to continue detaining enemy combatant detainees. Three years later, Tarari Mohammed was cleared for release or transfer. Nevertheless, he was still detained in Guantánamo Bay’s Camp 6 as of our March 20, 2008 visit. …[W]e saw our client shackled to the floor, as always, and immediately noticed he was wearing a white respirator on his face. The respirator was of the sort a contractor wears when working with toxic materials.”
Eisenberg continues to write about how Tarari had met with a representative of the International Committee of the Red Cross three weeks earlier, who brought a letter from his sister.
“The letter was the first and only communication our client received from any member of his family in over six years of detention. In the letter, Tarari’s sister informed him of their mother’s death…[she] had been distraught over her son’s detainment…At the conclusion of their meeting, the [Red Cross] representative told Tarari that his family had not received any letters from him. Tarari explained he had written and sent many letters during his detainment. The military never forwarded the letters.”Cut off from his family and the outside world, Guantanamo guards accused him of spitting (a charge denied by Tarari), and then made him change from his white clothing (signaling a compliant prisoner) to an orange suit (signaling non-compliance) and forced him to wear the respirator as punishment for the supposed act of spitting.
Such is the nature of 7 years in detention, without charge, without trial, without access to the outside world.
This is the fate that could await any American citizen, at the hands of its own government, under the provisions of NDAA. And this is why the Due Process Guarantee Act is so critical to pass.
Call the Judiciary Committee Members. Insist that they pass DPGA.
Patrick Leahy (D-VT) [Chairman] 202-224-4242
Herb Kohl (D-WI) 202-224-5653
Dianne Feinstein (D-CA) 202-224-3841
Charles E. (Chuck) Schumer (D-NY) 202-224-6542
Dick Durbin (D-IL) 202-224-2152
Sheldon Whitehouse (D-RI)202-224-2921
Amy Klobuchar (D-MN) 202-224-3244
Al Franken (D-MN) 202-224-5641
Christopher Coons (D-DE) 202-224-5042
Richard Blumenthal (D-CT) 202-224-2823
Chuck Grassley (R-IA) 202-224-3744
Orrin G. Hatch (R-UT) 202-224-5251
Jon Kyl (R-AZ) 202-224-4521
Jeff Sessions (R-AL) 202-224-4124
Lindsey Graham (R-SC) 202-224-5972
John Cornyn (R-TX) 202-224-2934
Mike Lee (R-UT) 202-224-5444
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