Indefinite Detention of U.S. Citizens Without Charge or Trial is a Violation of Constitutional Guarantees

December 2, 2011

Last night, the Senate passed the 2012 Defense Authorization Bill, which includes a provision that would allow for the indefinite detention of U.S. citizens and green card holders without trial (or even having charges being brought against them) and further gives power to the military, rather than civilian courts, to conduct tribunals against accused terrorists.

This, despite the fact that the Justice Department, the Pentagon and intelligence agencies’ collectively have voiced opposition to the military-detention provision, on the basis that it would interfere with the work of terrorism investigators and interrupt intelligence collection. Meanwhile, the Obama administration has threatened to veto the legislation if the provision is not removed, arguing the executive branch should decide how to try terror detainees.

The provision reeks of a post-9/11 McCarthy-like stench. Without so much as a shred of evidence or a charge, the provision would allow the administration to hold citizens indefinitely upon the mere hint or whisper of “terrorist.”

Fortunately, the House version of the bill does not include this provision, which means that a joint committee will have to negotiate the final version of the bill before it is delivered to the President to be signed into law. This means that we can act to preserve American values before they are undermined and threaten the freedom of all Americans. (Scroll down to see what you can do now.)

It would also give the military additional duties to prosecute individuals under this added amendment. Senator Mark Udall (D-CO) cautions that, “these proposed changes would require the military to take on a new responsibility as police, jailors and judges — jobs for which it is not equipped and which it does not want. These changes to our laws would also authorize the military to exercise unprecedented power on U.S. soil.”

Military tribunals are notoriously ineffective at prosecuting terrorists. Civilian courts, which have effectively brought terrorists of all stripes to justice for more than 200 years, have more than proven their efficacy. Whereas hastily set up military tribunals in Guantanamo Bay have only led to one prosecution, our long-established civilian court system has convicted more than 400 terrorism suspects.

Sen. Al Franken (D-MN), made scathing remarks about the very troubling nature of it:

“What we are talking about is that Americans could be subjected to life imprisonment. Think about that for just a moment — life imprisonment without ever being charged, tried, or convicted of a crime, without ever having an opportunity to prove your innocence to a judge and a jury of your peers, and without the government ever having to prove your guilt beyond a reasonable doubt. I believe that denigrates the very foundation of this country. It denigrates the Bill of Rights and what our Founders intended when they created a civilian, nonmilitary justice system for trying and punishing people for crimes committed on U.S. soil.”

Not only is the provision concerning to the civil liberties of all U.S. citizens, it is also counterproductive to our national security interests. With this provision, the President determines who is and is not a terrorist based on nothing but mere accusations. 

Even former Bush administration officials warn these provisions “could actually weaken our counterterrorism efforts.” According to FBI Director Robert Mueller, “the proposed legislation applies to certain persons detained in the United States. The legislation may adversely impact our ability to continue ongoing international terrorism investigations before or after arrest, derive intelligence from those investigations, and may raise extraneous issues in any future prosecution of a person.”


  • Visit and enter your zip code to get all the necessary contact information for your elected representatives. In just five minutes, you can make a phone call and send an email.
  •  You can also contact the Capitol Hill switchboard to directly ask for your elected representative or senator: 202-224-3121

Talking Points:

  • These added provisions to the 2012 National Defense Authorization Bill would represent a historic setback to our national security goals, civil liberties and, above all, are a blatant offense to the foundation of the design of our country by the Founding Fathers. Urge your elected representatives or senators that the provision is a total erosion of our Constitutional values and civil liberties.
  • As a country that prides itself based on a foundation of justice, we should be ever vigilant in promoting just provisions, bills and legislations.
  •  Senior Department of Justice, Department of Defense, and former administration officials warn these provisions will be a severe ineffective blow to our national security efforts and counterproductive to counterterrorism measures.

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