Let’s End Indefinite Detention of Americans Without Charge or Trial

You hear a knock at the door. When you answer it, you’re confronted by a man in dark clothes with the bold, yellow letters “F B I” emblazoned across the front.

“I’m looking for your husband,” he says. With the flash of a badge, he marches past you, into the dining room, where your husband is eating dinner with the kids.

“You’re under arrest,” barks another agent to your husband.

What’s happening?” you scream.

“We believe your husband is associated with terrorists,” answers the first agent. “We’re putting him in military custody.” They whisk him away before you can take stock of what just happened.

Frantically, you scan your address book, looking for someone who can help. You wake up your cousin on the East Coast who works at a big law firm. She tries comforting you, but her words are horrifying.

“Congress gave the President the power to detain Americans he suspects support groups associated with terrorists,” she explains.

“My husband isn’t a terrorist!” you shout into the receiver.

“He just has to be accused of substantially sup·port·ing forces as·so·ci·at·ed with terrorists,” she says, drawing out the words to clarify their meaning.

This is America, you think to yourself. Our rights are protected here. “When can we see the charges against him?”

“No charges are required.”

Excuse me?

“The President doesn’t have to charge him with a crime or give him a trial. He can be detained indefinitely.”

“Indefinitely? As in, for the rest of his life?

“Yes, that’s possible. I am so, so sorry.”


Could this happen in the United States? Yes. And under the 2012 National Defense Authorization Act (NDAA), it’s perfectly legal.

The 2012 NDAA authorizes the President to order the indefinite detention of American citizens arrested on U.S.soil without charge or trial. I wrote about the NDAA on RedState last year. Many of you expressed your concerns about the bill to your Members of Congress. In response, House leadership told us that hearings would be held after the bill was enacted. Still, 43 Republicans voted against the final version of the NDAA.

In the last year, no hearings were held. And the “solution” that’s included in this year’s NDAA does nothing to address the constitutional problem of Americans being permanently detained without charge or trial.

This year’s NDAA states that the Afghanistan Authorization for Use of Military Force (AUMF) and the 2012 NDAA do not “deny the availability of the writ of habeas corpus . . . for any person who is detained in the United States.” (The language is in this year’s NDAA, sec. 1033, on p. 366 of this document.)

That sounds like an effective solution until you realize that no one believes habeas has been suspended. The Bush and Obama administrations haven’t claimed that habeas has been suspended. The Supreme Court stated unambiguously in 2004, “All agree suspension of the writ has not occurred here.” As Justice Scalia recognized, the Afghanistan AUMF “is not remotely a congressional suspension of the writ [of habeas corpus], and no one claims that it is.”

Habeas corpus is available to persons detained on U.S. soil, but it offers very limited protection. It doesn’t prevent the government from snatching Americans from their homes based on accusations that they’ve “substantially supported” forces “associated” with terrorists. It doesn’t guarantee Americans that the government will charge them with a crime and try them in a court of law. And it does nothing to stop the government from locking them up for the rest of their lives.

Habeas simply allows Americans arrested under the Afghanistan AUMF to have a hearing on their status as enemy combatant suspects. The government needs to submit only minimal evidence to continue lifetime imprisonment. It can use hearsay. Courts are required to assume that the government’s records are accurate. The government doesn’t even need to prove beyond a reasonable doubt that the accused supported groups associated with terrorists. Americans are given no meaningful opportunity to defend their innocence.

In short, habeas is no substitute for Americans’ full constitutionally protected rights.

The amendment I’m introducing with Rep. Adam Smith limits the NDAA’s overbroad and dangerous detention provisions. It guarantees that persons arrested on U.S. soil under the Afghanistan AUMF or the NDAA will be charged for their alleged wrongdoing and will receive a fair trial. The government will be required to tell people detained on U.S. soil the allegations against them. And the government will have to make its case before a judge, just as the Constitution requires.


Some say that we shouldn’t worry about the indefinite detention of persons arrested in the U.S. because it won’t happen very often. There have been two reported cases of persons who were caught in the U.S.and detained under the Afghanistan AUMF. In both instances, the government charged the detainees with crimes in federal court shortly before the Supreme Court was likely to decide whether the indefinite detention was illegal. In a signing statement accompanying the 2012 NDAA, President Obama pledged that he “will not authorize the indefinite military detention without trial of American citizens,” saying to do so “would break with our most important traditions and values.”

President Obama’s promise is not binding on himself or any future president. Both the Obama and Bush administrations detained persons caught within the U.S. under the Afghanistan AUMF—at least until the Supreme Court appeared ready to rule the practice unconstitutional.

Others claim that we should protect only citizens and not other persons living in the U.S. Our amendment defends the rights of both citizens and noncitizens because the Constitution requires it. The Fifth Amendment applies to “person[s]” and the Sixth Amendment applies to “the accused” without respect to citizenship. Even the 2013 NDAA recognizes this fact when it states that habeas is available “for any person who is detained in the United States.” [emphasis added]

How else do we know that the Constitution protects all persons? We can look to the words of James Madison, the Father of the Constitution, from his Report on the Virginia Resolutions: “[I]t does not follow, because aliens are not parties to the Constitution, as citizens are parties to it, that whilst they actually conform to it, they have no right to its protection.”

Of course, it’s important to remember that without the Smith-Amash Amendment, even American citizens are denied their right to full due process. A vote in favor of the 2013 NDAA is a vote to permit the government to lock up Americans forever without charge or trial.


Our constitutionally protected rights should not depend on presidential promises or who’s in charge. A free country is defined by the rule of law, not the government’s whim. Americans demand that we protect their rights to a charge and trial.

The House likely will vote on our amendment on Thursday. We can win this fight. But we can win it only if Americans are actively engaged in the political process. Please contact your Representative and tell them you’re opposed to the indefinite detention of Americans arrested on U.S. soil.

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