Under the Lens of the Constitution: The NDAA's Detainee Provisions and the Fifth Amendment's Guarantee of Equal Protection
Consuegra, Stephen, St. Thomas Law Review
Just as the heart beats in the darkness of the body, / So I, despite this cage, continue to beat with life. / Those who have no courage or honor / Consider themselves free, / I am flying on the wings of thought, / And so, even in this cage, / I know a greater freedom.
--Abdul Rahim (1)
There is an age-old principle "that the authority of war must be tempered by limitations that mitigate the suffering inevitably caused by war." (2) In the wake of more than ten years in the armed conflict in Afghanistan, much debate exists surrounding the inception and passage of the National Defense Authorization Act For Fiscal Year 2012 ("NDAA") (3) and its detainee provisions. (4) This article focuses specifically on the NDAA's detainee provisions and its implications regarding the equal protection guarantees under the Fifth Amendment to the United States Constitution. To better understand the breadth of the NDAA's detainee provisions, consider the following dramatis personae. (5)
It is the year 2013, and political unrest in Afghanistan and the Middle East has reached a critical tipping point. The United States is greatly accelerating its 2014 timetables for ending the armed conflict in Afghanistan, and it is drawing down its combat forces at an accelerated pace and fast-forwarding the transition of its military and government advisors into a supervisory role for the Afghan government. (6) The political winds shifted in a tumultuous direction after American soldiers at Bagram air base burned copies of the Koran--desecrating the Muslim Holy Book sparked a snowball effect of instability and violence in the region. (7) American troops faced increased opposition from the Taliban in previously liberated provincial outposts in Afghanistan; there were civilian uprisings castigating the Koran burnings; some Afghan soldiers undergoing military training retaliated against their U.S. Army instructors; and there were killings of innocent Afghan civilians at the hands of American forces.
Violence and unrest in the region touched Omaid Parsa's life in remarkable and horrifying ways. Omaid is a twenty-nine-year-old Afghan journalist; he works for the al-Jazeera news network and lives in his native Kandahar province with his wife and three children. Omaid was on assignment in Kabul to cover the recent Koran burnings at the U.S. controlled Bagram air base. The Koran burnings sparked intense violence against American service members in the region. Local news outlets reported a recent incident in which an American soldier killed sixteen Afghan civilians in Omaid's native Kandahar. (8) Tragically, Omaid learned that his family was among the dead and mourned their loss. The United States apologized to the victims' families and the Afghan people and assured them that the U.S. military would prosecute the soldier for his crimes. (9)
The people of Afghanistan demanded that the United States Government hand over the soldier for prosecution in an Afghan tribunal. (10) In the end, the Afghan central government relented to the American promise of justice. Omaid openly criticized his government's actions as placating U.S. interests while ignoring the Afghan people's call for justice. He wrote critical pieces that lambasted Hamid Karzai's government for failing to prosecute the U.S. soldier's killing of sixteen innocent Afghan civilians in an Afghan tribunal. The Afghan government's decision excited further unrest and tension in the region.
Soon after, unknown government operatives broke into Omaid's home, captured him in the night, and tortured him for writing critical news pieces against the Afghan government. Omaid's captors transferred him to U.S. controlled Bagram air base where they falsely claimed that he was part of al-Qaeda, that he substantially supported the Taliban regime and its associated forces with monetary aid, and that he gained access to terrorist training-manuals for distribution to the people in Kandahar province. …