Ending Indefinite Detention of Americans Who Aren't Being Detained Doesn't Solve the Problem

Committee chairman Senator Dianne Feinstein (D-CA) speaks to reporters after a closed briefing of the Senate Select Committee
Committee chairman Senator Dianne Feinstein (D-CA) speaks to reporters after a closed briefing of the Senate Select Committee on Intelligence briefing on Capitol Hill November 15, 2012 in Washington, DC. Officials attended closed door briefings before members of House and Senate intelligence committees to speak about the attack on a US consulate in Benghazi. AFP PHOTO/Brendan SMIALOWSKI (Photo credit should read BRENDAN SMIALOWSKI/AFP/Getty Images)

Shortly after the September 11, 2001 terror attacks, President George W. Bush announced the need to detain terror suspects indefinitely as an emergency measure. Eleven years later, the United States not only continues to allow indefinite military detention, but every year Congress threatens to make it worse.

Last year, Congress, through the National Defense Authorization Act, which authorizes funding for the military, expanded the category of terror suspects that could be held indefinitely by the military without charge or trial. Senator Lindsey Graham (R-S.C.) and others who supported the provision argued America is now the battlefield, so suspects picked up here should also be imprisoned indefinitely. This year, Sen. James Inhofe (R-Okla.) wants to require Guantanamo custody for all terror suspects. Sen. Kelly Ayotte (R-N.H.) would force the Pentagon to plan yet another offshore prison facility for them.

There are, as always, some well-meaning lawmakers who want to restore certain basic rights and values. But the one effort gaining steam in the Senate right now -- the Due Process Guarantee Act, sponsored by Sen. Dianne Feinstein (D-Calif.) -- would actually do nothing to solve the problem.

On its face, the amendment exempts U.S. citizens and green-card holders from indefinite detention in the United States. Sounds good. But the fact is, U.S. citizens and green-card holders aren't being held indefinitely, neither in the United States nor anywhere else. Meanwhile, 166 prisoners remain stuck at the offshore U.S. prison at Guantanamo Bay. Even the 86 cleared for release or transfer haven't been allowed to leave. That's in part because Congress, also through the NDAA, has made it virtually impossible to transfer any Gitmo prisoners to the United States for trial, and the administration refuses to return those who come from unstable countries like Yemen.

The fact that a prisoner is unlucky enough to hold a Yemeni passport rather than an American one shouldn't determine whether he's held indefinitely without charge or trial, though. Indeed, discriminating on the basis of citizenship is, well, un-American.

Senator Feinstein acknowledges that the United States shouldn't be detaining anyone indefinitely without charge or trial. After all, the U.S. Constitution guarantees due process of law to all "persons," not all "citizens." She claims, however, that this compromise is the best one on which she could get bipartisan consensus.

That's not good enough.

If due process is a principle worth defending for citizens and green-card holders, then it's a principle worth defending for everyone. Failure to do that has already led the U.S. government to jail potentially innocent men for a decade or more offshore. Now many are stuck there simply because the U.S. government can't figure out where they should go.

The case of Adnan Latif, found dead in his cell at Guantanamo Bay in September, illustrates the problem. Seized in December 2001 at the Afghanistan-Pakistan border, he was one of the first detainees sent to Guantanamo. Not considered particularly dangerous, the military recommended his release in December 2006 and again January 2008. A detainee task force created by President Obama confirmed once more that he should be transferred out of Guantanamo. But due to U.S. fears about poor security in Yemen, he remained in prison.

The government now says Latif committed suicide in September by overdosing on his own psychiatric medication. There remain serious questions about how he managed to get enough of his medication at once to kill himself. But suspicious or not, Latif's death highlights the humanitarian crisis the U.S. government has created by institutionalizing indefinite detention.

Senator Feinstein's amendment would ensure that Latif's treatment is not repeated with a U.S. citizen or lawful resident on U.S. soil. But that doesn't solve the problem. The color of one's passport does not determine the value of his humanity.