§ Constitutional Amendment
Habeas Corpus and Due Process Amendment
Current Status
Existing Law
- Article I, Section 9 protects habeas corpus but permits suspension during rebellion or invasion
- Fifth and Fourteenth Amendments guarantee due process but interpretations vary
- Immigration detention operates under separate framework with limited due process
Current Authority
- Executive branch can designate individuals as "enemy combatants" to circumvent constitutional protections
- Post-9/11 detention practices at Guantanamo Bay and black sites operate outside traditional constitutional framework
- Habeas corpus suspension authority exists during rebellion or invasion
Existing Limitations
- Constitutional protections depend on citizenship and geographic location rather than applying universally
- No explicit prohibition on secret detention or torture
- "Enemy combatant" designation used to circumvent constitutional protections
Problem
Specific Harm
- Indefinite detention without charge or trial continues at Guantanamo Bay (20+ years for some detainees)
- Secret detention facilities (black sites) operate outside judicial oversight
- Torture and cruel treatment occur without explicit constitutional prohibition
Who is Affected
- Individuals designated as "enemy combatants" held without charge
- Immigration detainees lacking individualized hearings
- Non-citizens and persons outside U.S. geographic borders denied constitutional protections
- All persons potentially subject to government detention during future crises
Gaps in Current Law
- No absolute prohibition on imprisonment without charge, trial, and conviction
- No requirement for prompt judicial review of all detention
- No explicit prohibition on secret detention facilities
- Constitutional protections not universally applied regardless of citizenship or location
Accountability Failures
- Executive branch can designate individuals outside constitutional protections without judicial oversight
- Immigration detention lacks consistent due process standards
- No criminal penalties for operating secret detention facilities
- Habeas corpus can be circumvented through executive designation
Proposed Reform
Primary Policy Change
Establishes absolute prohibition on imprisonment without charge, trial, and conviction, with universal application of constitutional protections regardless of citizenship, location, or government designation.
New Requirements
- All persons deprived of liberty must be brought before a court promptly (48-72 hours) for determination of detention legality
- Before any deprivation of life, liberty, or property, due process must be afforded including:
- Notice of charges
- Opportunity to be heard before a neutral decision-maker
- Right to counsel
- Right to present and challenge evidence
- Government burden of proof
- All detention facilities must be publicly acknowledged
- Access to courts, counsel, and family notification required for all detainees
- Habeas corpus suspension limited to actual rebellion or invasion with congressional authorization for limited, specified duration
- Immigration detention limited to specific flight risk or danger findings with 6-12 month case resolution
New Prohibitions
- No imprisonment without charge, trial, and conviction
- No secret detention facilities or holding persons in secret locations
- Torture and cruel, inhuman, or degrading treatment prohibited absolutely
- No circumvention of constitutional rights through "enemy combatant" or similar designations
- No denial of protections based on citizenship, location, or government designation
Enforcement
- Congress authorized to enforce by appropriate legislation
- Civil remedies for violations
- Criminal penalties for violations
- Oversight and monitoring systems for all detention facilities
What Changes
| Before | After |
|---|---|
| Indefinite detention without charge permitted through "enemy combatant" designation | Absolute prohibition on imprisonment without charge, trial, and conviction |
| Secret detention facilities operate outside judicial oversight | All detention facilities must be publicly acknowledged |
| Constitutional protections vary by citizenship and geographic location | Constitutional protections apply universally regardless of citizenship or location |
| Immigration detention lacks consistent due process standards | Prompt judicial review required for all detention (48-72 hours) |
| Habeas corpus can be circumvented through executive designation | Explicit prohibition on torture and cruel treatment |
| No explicit prohibition on torture or secret prisons | "Enemy combatant" and similar designations cannot circumvent constitutional rights |
ROI
Federal Budget Impact (10-Year, Estimated)
Note: Constitutional amendments are not CBO-scoreable. Estimates based on comparable programs, research, and implementing legislation projections.
Costs:
| Item | 10-Year | Source |
|---|---|---|
| Expanded Federal Defender Services (habeas/due process cases) | $3.0B | ¹ |
| Federal Judiciary (additional caseload capacity) | $2.5B | ² |
| Detention Oversight & Monitoring Systems | $1.5B | ³ |
| Immigration Court System Expansion (expedited hearings) | $1.2B | ⁴ |
| Implementing Legislation & Enforcement | $0.8B | Estimated |
| Contingency (15%) | $1.4B | |
| Total | $10.4B |
Savings:
| Item | Gross | Capture | Net | Source |
|---|---|---|---|---|
| Guantanamo Closure (eliminate $540M+/year) | $6.6B | 80% | $5.3B | ⁵ |
| Immigration Detention Reduction (shift to ATD) | $25.0B | 30% | $7.5B | ⁶ |
| Reduced Wrongful Imprisonment Compensation | $0.5B | 50% | $0.25B | ⁷ |
| Transfer Guantanamo Detainees to Domestic Facilities | $1.3B | 90% | $1.2B | ⁸ |
| Total | $33.4B | $14.25B |
Result: Net +$3.85B (Estimated - Not CBO-Scoreable)
Societal Benefits
| Benefit | Annual | NPV (3%) | NPV (7%) | Source |
|---|---|---|---|---|
| Rule of Law / International Standing Enhancement | $5.0B | $42.6B | $35.1B | ⁹ |
| Reduced Litigation (torture/detention claims) | $0.5B | $4.3B | $3.5B | ¹⁰ |
| Wrongful Detention Prevention | $0.3B | $2.6B | $2.1B | ¹¹ |
| Immigration System Efficiency (ATD compliance) | $0.8B | $6.8B | $5.6B | ¹² |
| Total | $6.6B | $56.3B | $46.3B |
Summary
| Category | 10-Year | Notes |
|---|---|---|
| Federal Budget | +$3.85B | Estimated - Not CBO-scoreable |
| Societal | $46.3B - $56.3B | NPV at 3-7% |
Confidence: MEDIUM
Estimation Basis: The U.S. spends more than $540 million per year to detain fewer than 40 prisoners at Guantanamo. Adjusted for inflation, the figure in 2025 exceeds $663 million ($44 million each per the 15 remaining detainees). By comparison, ADX Florence in Colorado—the only remaining supermax prison in the US prison system—has an inflation-adjusted estimated annual cost of approximately $103,000 per inmate. The federal government currently pays around $150 per day for each adult immigrant detainee, and $315 per person in family detention. The detention budget for fiscal year 2024 was $3.4 billion. The daily cost per ATD-ISAP participant is less than $4.20 per day — a stark contrast from the cost of detention. The fiscal 2024 funding package includes $1.45 billion for defender services. Savings projections assume partial implementation of alternatives to detention, Guantanamo closure, and shift toward domestic prosecution of terrorism suspects. Cost estimates incorporate required expansion of federal defender services and judicial capacity.
Key Assumptions & Research Findings:
Guantanamo Costs: The total cost of Guantánamo's court and prison has exceeded $6 billion since 2002. It certainly was more expensive to detain hundreds of men than a few dozen, although costs of goods and services were lower in early years, so the $540m annually is a reasonable but probably conservative estimate. This leaves a cost to date to the American taxpayer in the range of $13bn.
Cost Comparison - Guantanamo vs. Domestic: Even if Guantanamo detainees slated for trial were transferred to the United States to face capital charges and they were imprisoned in Supermax prisons in the United States during their trials, the cost would be still be only $1.78 million per year per detainee. Even in the costliest possible circumstances in the United States, therefore, the costs of Guantanamo still far exceed those of the U.S. federal system.
Immigration Detention: Detention spending had remained nearly at or above three billion dollars from FY 2019 through FY 2024. The One Big Beautiful Bill Act (OBBBA), enacted in July 2025, includes $45 billion for expanding detention capacity over the next four years. The reconciliation package ensures an additional $11.25 billion for ICE detention per year.
Alternatives to Detention Effectiveness: ATDs have proved to be effective, with immigrants appearing for their final hearings more than 95 percent of the time when participating in "full service" ATD programs that feature case management. ATDs can cost as little as 70 cents to $17 per person per day with an average ATD contract costing between $5 and $6 per person per day.
Federal Defender Services: Nearly 90 percent of federal criminal cases are handled by either a federal defender or a panel attorney hired under the Criminal Justice Act. $1.5 billion for the Defender Services Account, an 8.9 percent ($123 million) increase over FY 2023.
Wrongful Conviction Compensation: Between 1989 and the end of 2018, there were 2,372 exonerations of wrongfully imprisoned people, representing more than twenty thousand years of freedom lost. Although states and local governments had paid more than two billion dollars by then, fewer than half of those exonerees were compensated at all. The federal statute awards $50,000 per year of wrongful incarceration.
Torture Compensation Liability: In holding the firm liable, the jury awarded plaintiffs Suhail Al Shimari, Salah Al-Ejaili and Asa'ad Al-Zubae $3m each in compensatory damages and $11m each in punitive damages. To date, the US government has not compensated any victims of torture and abuse from Abu Ghraib, according to Human Rights Watch.
References
Needs references - to be added in future update
Change Log
- 2025-12-13 - ROI Research: Added researched ROI estimates via Opus 4.5 batch process
Date Change Source 2025-12-08 Amendment standardization: ROI set to TBD pending CBO scoring; removed unsubstantiated figures Batch processor 2025-12-08 Standardized to legislation template format Batch standardization