Indefinite detention without trial

Indefinite detention is the incarceration of an arrested person by a national government or law enforcement agency without a trial, and violates many national and international laws, including human rights laws.^[1] In recent years, governments have indefinitely held those they say are suspected of terrorism, sometimes declaring them enemy combatants.

Views

Most of the nations of the world and human rights groups hold unfavorable views of indefinite detention.

Australia

In 1994, indefinite detention was introduced to Australia. The new legislation removed the previous 273 day limit imposed on Vietnamese, Chinese, and Cambodian refugees; previous laws had also allowed for the indefinite detention of specified people.^[2] In 2004, Australia's high court ruled in the case Al-Kateb v Godwin that the indefinite detention of a stateless person is lawful.

All states and territories (except New South Wales) allow for indefinite detention of violent or sexual offenders who are considered unacceptably likely to reoffend.^[2]

Malaysia

The Internal Security Act an act enforced since 1960 is a preventive detention law enforced in Malaysia which allows indefinite detention without trial for 2 years and further extension as needed. Internal Security Act was repealed in 2012 amid public pressure for political reform. The new law The Prevention of Terrorism Act (POTA) was introduced in Mar 2015 after a series of terrorism activity happened in Malaysia. POTA allows authorities to detain terrorism suspects without trail, but it states that no person shall be arrested for their political beliefs or activities. ^{[3] [4] [5]}

Singapore

In Singapore, the Internal Security Act allows the government to arrest and indefintely detain individuals who pose a threat to national security.^[6]

Switzerland

In Switzerland, local laws related to 'dangerousness' can be evoked to incarcerate persons without charge. This was controversially effected in the case of Egyptian refugee Mohamed El Ghanem.

United Kingdom

In 2004, the House of Lords ruled that indefinite detention of foreign terrorism suspects under section 23 of the Anti-Terrorism Crime and Security Act 2001 violated the Human Rights Act and the European Convention on Human Rights.^[1] In fact, within the three provisions of the Magna Carta which are still in effect, indefinite detention is forbidden. However, in 2006 the government passed a law allowing for indefinite detention, and many immigrants have been detained indefinitely for years as a result.^[7]

United States

In the United States, indefinite detention has been used to hold terror suspects during the War on Terror. According to the American Civil Liberties Union, section 412 of the USA PATRIOT act permits indefinite detention of immigrants;^[9] one of the most highly publicized cases has been that of Jose Padilla,^[10] whose ultimate prosecution and conviction in the United States have also been highly controversial. The indefinite detention of prisoners at Guantanamo Bay has been called a violation of international law by the United Nations, the International Committee of the Red Cross, and Human Rights Watch.^{[11][12][13][14][15]}

On November 29, 2011, the United States Senate rejected a proposed amendment to the National Defense Authorization Act for Fiscal Year 2012 ("NDAA") that would have banned indefinite detention by the United States government of its own citizens,^[8] leading to criticism that Habeas corpus in the United States has been undermined.^[16][17] Congress and Senate approved the National Defense Authorization Act in December 2011 and President Barack Obama signed it December 31, 2011.^[18] The new indefinite detention provision of the law was decried as a "historic assault on American liberty."^[19] The American Civil Liberties Union stated that “President Obama's action today is a blight on his legacy because he will forever be known as the president who signed indefinite detention without charge or trial into law.”^[20] On May 16, 2012, in response to a lawsuit filed by journalist Chris Hedges, Noam Chomsky, Naomi Wolf and others,^[21] United States District Judge Katherine B. Forrest ruled the indefinite detention section of the law (1021) likely violates the First and Fifth Amendments of the U.S. Constitution and issued a preliminary injunction preventing the U.S. government from enforcing it.^{[22][23][24][25][26]}

In 2013, the House of Representatives^[27] and the Senate^[28] reauthorized National Defense Authorization Act. The amendments to effectively ban indefinite detention of US Citizens were defeated in both chambers. Moreover, on July 17, 2013, the U.S. Court of Appeals for the Second District struck down an injunction against indefinite detention of U.S. citizens by the president under the National Defense Authorization Act of 2012.^[29] The appellate court ruled: "...Plaintiffs lack standing to seek preenforcement review of Section 1021 and vacate the permanent injunction. The American citizen plaintiffs lack standing because Section 1021 says nothing at all about the President’s authority to detain American citizens".

On December 26, 2013, President Obama signed into law the National Defense Authorization Act of 2014.^[30][31] The NDAA provision first signed into law in 2012, which permits indefinite detention without trial, remains law as of 2014.

See also

• Administrative detention
• Habeas corpus
• Indefinite imprisonment
• Incapacitation (penology)

References