It does not affect persons captured abroad, including at Guantanamo, the authors write. The case against 'indefinite detention'

The U.S. government cannot keep citizens in prison without accusing them of a specific crime and proving their guilt beyond a reasonable doubt. The right to a charge and a trial are in our Constitution. We boast that they separate us from lesser governments—lawless regimes that extinguish liberty on a whim.

Those rights, however, are not as secure as we may think. The federal government now has the power to detain indefinitely any person—including U.S. citizens—arrested on U.S. soil, indefinitely, without charging them with a crime or proving their guilt.


We have proposed an amendment to the National Defense Authorization Act, which the House is due to consider Thursday, that will protect the right to a charge and a trial for all people arrested in the U.S. It does not affect military detention of persons captured abroad, including those at Guantanamo. It simply states that anyone arrested on U.S. soil must receive his or her constitutional right to a charge and a trial.

Our proposal also repeals last year’s ill-conceived mandatory detention provision. The current law prevents the military from judging whether to detain suspected terrorists caught abroad. The mandatory detention provision was opposed by virtually every national security expert that looked at it — including the heads of the CIA, the Defense Department, the FBI and the director of National Intelligence, as well as several Bush administration national security officials.

Leaving these powers on the books is not only a dangerous threat to our civil liberties, but also undermines one of our strongest assets in trying suspected terrorists: Article III courts and domestic law enforcement. Since Sept. 11, the federal government has successfully prosecuted more than 400 defendants charged with crimes related to international terrorism. That is a proven track record of success that we should embrace.

This year’s Defense authorization purports to solve the constitutional problem of indefinite detention by stating that the Afghanistan Authorized Use of Military Force and last year’s Defense authorization do not “deny the availability of the writ of habeas corpus … for any person who is detained in the United States.”

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 it’s been suspended. The Supreme Court stated unambiguously in 2004, “All agree suspension of the writ [of habeas corpus] has not occurred here.” As Justice Antonin Scalia wrote, the Afghanistan AUMF “is not remotely a congressional suspension of the writ, and no one claims that it is.”

Habeas corpus offers limited protection. It doesn’t prevent the government from taking 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 and try them in court. And it does nothing to stop the government from locking them up indefinitely.

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 guilt beyond a reasonable doubt.

To his credit, President Barack Obama has 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.”

In addition, both the Bush administration and the Obama administration have prosecuted terrorists in the U.S. without using indefinite detention, and without ultimately utilizing military custody in the U.S. Not only is the power of indefinite detention an executive branch overreach, it also is unnecessary.

Obama’s promise is not binding on himself or any future president and this power represents a danger to civil liberties, due process and the Constitution.

Americans’ 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.

Rep. Adam Smith (D-Wash.) is ranking member on the House Armed Services Committee. Rep. Justin Amash (R-Mich.) is on the House Oversight and Government Reform Committee.