NDAA Prevents Closing Guantanamo, Could Lead to Claims of a Right to Discriminate

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. The law also contains a troubling provision compelling the military to accommodate the conscience, moral principles, or religious beliefs of all members of the armed forces without accounting for the effect an accommodation would have.

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."

In a signing statement that accompanied the NDAA, the president acknowledged that the accommodation provision, Section 533, is unnecessary and ill-advised, noting that the military already appropriately protects the freedom of conscience of chaplains and service members.

"The language is too broad," said Laura Murphy, director of the ACLU Washington Legislative Office, who cautioned that it could lead to claims of a right to discriminate.

"We strongly support accommodating beliefs, so long as doing so does not result in discrimination or harm to others," Murphy said. "The hastily drafted provision, though, has the potential to give rise to dangerous claims of a right to discriminate against not just lesbian, gay, and bisexual service members, but also women, religious minorities, and in the provision of health care."

In the signing statement, President Obama also said his administration "remains fully committed to continuing the successful implementation of the repeal of Don't Ask, Don't Tell, and to protecting the rights of gay and lesbian service members" and that the Department of Defense, in implementing Section 533, will "not permit or condone discriminatory actions that compromise good order and discipline or otherwise violate military codes of conduct."

Murphy said, "It is encouraging that the president recognizes why this provision is so problematic. Going forward, it is essential for the Department of Defense to ensure that no accommodation of religious belief or conscience can result in discrimination or harm to others."