American Civil Liberties Union

What is wrong with indefinite detention?

When we imprison people indefinitely without charging them with a crime or granting them their day in court, we violate the most basic tenets of the American justice system – the provision of due process and the presumption of innocence until guilt is proven. While the government has the right, under the laws of war, to detain prisoners captured on the battlefield until the end of hostilities, the Bush and Obama administrations have defined their powers to do so far too broadly. They have used such authority to pick up and detain civilians far from any battlefield who they deem engaged in the "war on terror," defining the entire world as a war zone. And because the "war on terror" will never come to a public, decisive end, the duration of the war could essentially be forever, opening up the possibility that individuals could be imprisoned for the rest of their lives without being given their due process rights. This is not American justice.

What should we do with detainees who are currently being held indefinitely?

Every detainee’s case should be reviewed thoroughly. If there is evidence of criminal activity, detainees should be prosecuted in federal courts, which are well equipped to accommodate the government's legitimate national security interests without compromising the fundamental rights of defendants. Where there is not, detainees should be repatriated to their home countries or, if there is a risk of torture or abuse, transferred to other countries that will accept them.

What about reports of detainees returning to the battlefield?

The Pentagon's own reports on detainees who have supposedly returned to the battlefield are unreliable and false according to its own data and prior reports – sometimes including duplicate names, names of people who were never detained and people who have never left their homelands. “Returning to the battlefield” also assumes that all Guantánamo detainees were engaged in militant activities before being detainees at Guantánamo, which we know is not true. And some of the "militant" activities in which former detainees are alleged to have engaged after leaving Guantánamo include nothing more than speaking to the press about their experiences.

Is the U.S. justice system equipped to handle these cases?

Our criminal justice system is well-equipped to gather intelligence, and our time-tested U.S. federal criminal courts are equipped to handle complex national security cases, protecting both sensitive evidence and fundamental rights. The United States has successfully prosecuted hundreds of terrorism suspects, both before and after September 11, including "Blind Sheik" Omar Abdel-Rahman for his role in the 1993 bombing of the World Trade Center, Zacarias Moussoui for conspiring in the 9/11 attacks, and "shoe-bomber" Richard Reid. These cases belong in courts that uphold due process and in which judges and attorneys are held to constitutional obligations and accountable to the rule of law. They should not occur in military commissions, which represent a second-class system of justice that falls short of providing the due process required by the Constitution. Even with recent legislative improvements, the military commissions remain incapable of delivering outcomes we can trust.

What about closing Guantánamo and moving detainees held there to a prison on U.S. soil?

While Guantánamo must be closed as soon as possible, creating “Gitmo North” is not the answer. The prison’s closure will be an empty gesture is we continue the illegal policies it embodies – including indefinite detention without due process – elsewhere. Guantánamo was set up in Cuba as a way to bypass the Constitution, and by instituting indefinite detention as Thomson Correctional Center in Illinois, as has been proposed, or anywhere else in the U.S., the Obama administration would be signaling that it believes it has the power to subvert the Constitution right here at home. Detainees who will be prosecuted in federal courts should be held in U.S. facilities before and, if convicted, after trial, but should not be indefinitely detained on U.S. soil or anywhere else without charge or trial.