National Defense Authorization Act Prevents Closing Guantanamo, Could Protect Right to Discriminate

Obama Jeopardizes Ability to Close Guantanamo While Raising Discrimination Concerns in the Military

WASHINGTON–(ENEWSPF)–January 3, 2013. President Obama has signed the National Defense Authorization Act, which jeopardizes his ability to meet his promise to close the military prison at Guantanamo Bay during his presidency. Another provision of concern requires the military to accommodate service members’ religious beliefs, which could potentially protect discriminatory speech and conduct.

The NDAA restricts Obama’s ability to transfer detainees for repatriation or resettlement in foreign countries or to prosecute them in federal criminal court. Originally set to expire on March 27, the transfer restrictions have been extended through Sept. 30. As recently as October, Obama reiterated his commitment to close Guantanamo. Currently, 166 prisoners remain at the prison camp.

“President Obama has utterly failed the first test of his second term, even before inauguration day. His signature means indefinite detention without charge or trial, as well as the illegal military commissions, will be extended,” said Anthony Romero, executive director of the American Civil Liberties Union. “He also has jeopardized his ability to close Guantanamo during his presidency. Scores of men who have already been held for nearly 11 years without being charged with a crime–including more than 80 who have been cleared for transfer–may very well be imprisoned unfairly for yet another year. The president should use whatever discretion he has in the law to order many of the detainees transferred home, and finally step up next year to close Guantanamo and bring a definite end to indefinite detention.”

Another provision of the NDAA requires the military to accommodate the conscience, moral principles, or religious beliefs of service members. That language is too broad, said Laura Murphy, director of the ACLU Washington Legislative Office, who cautioned that it could result in discriminatory conduct.

“The hastily drafted provision has the potential to give rise to dangerous claims of a right to discriminate, Murphy said. “We strongly support accommodating beliefs, so long as doing so does not result in discrimination or harm to others. It also appears to allow the military to take adverse personnel actions based solely on the beliefs held by service members, even when an individual’s beliefs have never been expressed or never acted on.”

Murphy gave as an example a company commander who learns that someone in his unit has moral objections to a mission, or harbors views critical of the government. There is a good argument that the provision could permit disciplinary action by the commander or the denial of a promotion.