Indefinite detention without trial
Indefinite detention is the incarceration of an arrested person by a national government or law enforcement agency without a trial; the practice violates many national and international laws, including human rights laws. In recent years, governments have indefinitely incarcerated individuals suspected of terrorism, often in black sites, sometimes declaring them enemy combatants.
In 1994, indefinite detention was introduced for Vietnamese, Chinese, and Cambodian refugees; previous laws had imposed a 273-day limit. In 2004, the High Court of Australia ruled in the case Al-Kateb v Godwin that the indefinite detention of a stateless person is lawful.
The Internal Security Act, enacted in 1960, allowed indefinite detention without trial for two years, with further extensions as needed. It was repealed in 2012 amid public pressure for political reform. The Prevention of Terrorism Act (POTA) was introduced in March 2015 after a series of terrorist acts was committed in Malaysia. POTA allows authorities to detain terrorism suspects without trial but stipulates that no person was be arrested for their political beliefs or activities.
In Switzerland, local laws related to 'dangerousness' can be invoked to incarcerate persons without charge. This was controversially effected in the case of Egyptian refugee Mohamed El Ghanem.
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. Under Schedule 8 of the Terrorism Act 2000, the detention of terrorism suspect may be prolonged upon application of a warrant for further detention by a Crown prosecutor (in England and Wales), the Director of Public Prosecutions (in Northern Ireland), the Lord Advocate or procurator fiscal (in Scotland), or a police superintendent (in any part of the United Kingdom).
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 (ACLU), Section 412 of the Patriot Act permits indefinite detention of immigrants; one of the most highly publicized cases has been that of Jose Padilla, whose ultimate prosecution and conviction in the United States have 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.
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, leading to criticism that the right of habeas corpus had been undermined. The House of Representatives and Senate approved the National Defense Authorization Act in December 2011, and President Barack Obama signed it December 31, 2011. The new indefinite detention provision of the law was decried as a "historic assault on American liberty." The ACLU 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."
On May 16, 2012, in response to a lawsuit filed by journalist Chris Hedges, Noam Chomsky, Naomi Wolf and others, United States District Judge Katherine B. Forrest ruled that 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.
In 2013, the House of Representatives and the Senate reauthorized the 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 Circuit struck down an injunction against indefinite detention of U.S. citizens by the president under the National Defense Authorization Act of 2012. The appellate court ruled that "plaintiffs lack standing to seek pre-enforcement 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.
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"It is 10 years since the US Government opened the prison at Guantanamo, and now three years since 22 January 2009, when the President ordered its closure within 12 months," High Commissioner for Human Rights Navi Pillay stated in a news release. "Yet the facility continues to exist and individuals remain arbitrarily detained – indefinitely – in clear breach of international law," she added. "Nobody should ever be held for years on end without being tried and convicted, or released." Ms. Pillay voiced disappointment that instead of closing the facility, the US Government has "entrenched" a system of arbitrary detention, with the new National Defense Authorization Act. Signed into law last month, the Act now effectively codifies such indefinite military detention without charge or trial.
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