Talking Points: 2012 National Defense Authorization Act (NDAA)

Document Date: February 22, 2012

On December 31, 2011, President Obama signed the National Defense Authorization Act (NDAA), codifying indefinite military detention without charge or trial into law for the first time in American history. (To learn more about the NDAA, visit

  • The law is an historic threat because it codifies indefinite military detention without charge or trial into law for the first time in American history. It could permit the president – and all future presidents – to order the military to imprison indefinitely civilians captured far from any battlefield without charge or trial.
  • This kind of sweeping detention power is completely at odds with our American values, violates the Constitution, and corrodes our Nation’s commitment to the rule of law, which generations have fought to preserve.
  • The breadth of the NDAA’s worldwide detention authority violates the Constitution and international law because it is not limited to people captured in an actual armed conflict, as required by the laws of war.
  • Under the Bush administration, claims of worldwide detention authority were used to hold even a U.S. citizen captured on U.S. soil in military custody, and many in Congress assert that the NDAA should be used in the same way. The ACLU does not believe that the NDAA authorizes military detention of American citizens or anyone else in the United States. Any president’s claim of domestic military detention authority under the NDAA would be unconstitutional and illegal.
  • Nevertheless, there is substantial public debate and uncertainty around whether Sections 1021 and 1022 of the NDAA could be read even to repeal the Posse Comitatus Act and authorize indefinite military detention without charge or trial within the United States.
  • The law does not require even an allegation that a detained person caused any harm or threat of harm to the United States or to any U.S. interest. Mere allegation of membership in, or support of, an alleged terrorist group could be the basis for indefinite detention. Under the American justice system, we don’t just lock people up indefinitely based on suspicion.
  • Congress and the president should clean up the mess they created. Congress should repeal the NDAA’s detention provisions.
  • More than ten years after the 9/11 attacks, with the United States withdrawing from Iraq and Afghanistan, the United States should not be asserting new worldwide authority for the military to imprison persons seized in any country.
  • We have seen how disregard for the rule of law has disastrous results for America’s standing in the world. It is time for a return to the rule of law. It is time to turn that page.

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