News Release

Indefinite Military Detention Undermines the Rule of Law

Washington, DC (December 15, 2011) – With passage last night in the House of Representatives, the National Defense Authorization Act appears poised to pass the Senate and go to the President’s desk. This is despite ten years of experience in fighting terrorism at home and abroad having proven the president already has the power and the tools to neutralize threats to domestic and national security, and to punish terror crimes, without destroying American values and nullifying the Bill of Rights. President Obama’s retraction of his veto threat is a profound disappointment to those, like the National Association of Criminal Defense Lawyers and other civil liberties groups, who remain committed to the Constitution and the rule of law. Sadly, and despite his past statements concerning the importance of the rule of law, President Obama’s current willingness to sign into law a regime of indefinite detention without charge simply is not consistent with such a commitment. 

NACDL will continue to oppose this legislation on policy grounds. In fact, no one actively involved in intelligence or law enforcement wanted or needed this legislation – not the Department of Defense, not the intelligence community, and certainly not their civilian anti-terror counterparts in the Department of Justice and Federal Bureau of Investigation.

“Our fight to prevent indefinite detention without charge or trial and to preserve the use of the criminal courts to try terrorism suspects is now more critical than ever,” said NACDL President Lisa Wayne. “This setback will only cause us to redouble our efforts to see that our struggle against terrorism is not transmuted into a permanent war on fundamental liberties and due process.”

In placing primary responsibility on the military to assume custody over certain terror suspects, even those captured in the United States, the NDAA will interfere with law enforcement agencies’ abilities to arrest and gather intelligence from terror suspects. Additionally, the bill will prohibit the use of defense funds to transfer Guantanamo detainees to the United States, even for prosecution, even though the federal courts have successfully prosecuted over 400 terrorism cases since 9/11 compared to only 6 in military commission system at Guantanamo.

Sec. 1021 of the bill eviscerates more than 224 years of American legal history respecting fairness and due process of law. It wrongly codifies indefinite detention without charge or trial of terrorism suspects, including those suspects captured on U.S. soil.

Moreover, the bill still makes it virtually impossible to transfer prisoners who no longer pose a threat to their homes or other countries – including those at Guantanamo already cleared by the Bush and Obama Administrations. It currently costs almost $1 million per year to hold each Guantanamo detainee, compared to less than $30,000 per year for a federal prisoner in maximum security. 

Implementation of this legislation undermines the rule of law and harms U.S. interests abroad.

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Jack King, Director of Public Affairs & Communications, (202) 465-7628 or

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.