Today, Congressman Jerrold Nadler (D-NY), the Ranking Member of the House Judiciary Subcommittee on the Constitution, along with Congressman John Conyers (D-MI), the Ranking Member of the Judiciary Committee, and Congressman Bobby Scott (D-VA), the Ranking Member of the Judiciary Subcommittee on Crime, Terrorism and Homeland Security, will introduce legislation to prevent the indefinite detention of persons in U.S. custody without due process of the law, and to return the U.S. to compliance with its Constitution. The No Detention Without Charge Act would apply to all persons in U.S. custody -- both at home and overseas -- and would apply to all authorizations to use military force in the present and future.
"The notion that the United States ought to conduct itself according to the Constitution and the law of war should not be controversial," said Nadler. "The No Detention Without Charge Act takes a small but important step in affirming our values as we work to secure the nation from those who would do us harm. This legislation asserts that the Authorization for the Use of Military Force Act does not authorize detention beyond the context of an active battlefield, and it never has. Indefinite detention without charge is not lawful."
The legislation comes in response to the House's current consideration of the National Defense Authorization Act, which includes debate on the treatment of individuals who are captured, at home and abroad, under the Authorization for the Use of Military Force of 2001 (the AUMF).
In 2011, Congress passed the National Defense Authorization Act of 2011, providing that all terrorism suspects eligible for detention under the AUMF may be held "without trial until the end of hostilities," and that such detention is consistent with the law of war. There are no limits to this provision. If the executive branch claims that any person is a terrorist, even if that person is a U.S. citizen, then the military may hold that person without trial -- whether arrested on U.S. soil, captured on a battlefield, or detained anyplace in between.
The No Detention Without Charge Act seeks to bring U.S. law back into line with the Constitution, and has the support of groups as diverse as Human Rights Watch, the Open Society Policy Center, the Bill of Rights Defense Committee, the Center for National Security Studies, the Defending Dissent Foundation, and the National Association of Criminal Defense Lawyers.
The Act would:
Prohibit the detention of any person by the United States except to the extent that the Constitution and the law of war permit;
Prohibit the detention without charge of any person arrested or detained within the United States; and
Repeal Section 1022 of the National Defense Authorization Act of 2011, which requires that certain suspects be remanded to military custody -- whether or not they are U.S. citizens, and without regard for the counterterrorism efforts of the FBI and local law enforcement.