Indefinite detention is the incarceration of an arrested person by a national government or law enforcement agency without a trial. It is a controversial practice on the part of any government or agency that is in violation of many national and international laws, including human rights laws. In recent years, governments have indefinitely held those suspected to be involved in terrorism, declaring them as enemy combatants.
Most of the civilized nations of the world and human rights groups hold unfavorable views of indefinite detention.
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. In 2004, Australia's high court ruled in the case Al-Kateb v Godwin that the indefinite detention of a stateless person is lawful.
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.
In 2004, the House of Lords ruled that indefinite detention violates the Human Rights Act and the European Convention on Human Rights. 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 are being detained indefinitely for years as a result.
In the United States, indefinite detention has been used to hold terror suspects. This process, which has been highly controversial, is currently under review. According to the American Civil Liberties Union, section 412 of the USA 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 also been highly controversial. The International Red Cross has criticized the indefinite detention of prisoners at Guantanamo Bay.
On December 5, 2008, the United States Supreme Court announced that it will rule on indefinite detention. 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 Habeas corpus in the United States has been undermined. Congress 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 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.” 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 the indefinite detention section of the law (1021) likely violates the 1st and 5th Amendments and issued a preliminary injunction preventing the US government from enforcing it.
In 2013 the House of Representatives and the Senate 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. 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. The troubling NDAA provision first signed into law in 2012, which permits the military to detain individuals indefinitely without trial, remains on the books for 2014. Efforts to quash or reform the provision (especially with regard to the indefinite detention of U.S. citizens) have failed and have been fiercely fought by the administration.
- Savage, Charlie, "Senate Declines to Clarify Rights of American Qaeda Suspects Arrested in U.S.," The New York Times, 1 December 2011:.
- Jose Padilla Convicted-The Expanding U.S. Machinery of Repression: ?Thought Crimes,? Preventive Detention, and Torture
- Khaki, Ategah, "Senate Rejects Amendment Banning Indefinite Detention," ACLU Blog of Rights, 29 November 2011: .
- Carter, Tom "US Senators back law authorizing indefinite military detention without trial or charge," World Socialist Web Site, 2 December 2011: .
- Julie Pace, Obama signs defense bill despite 'serious reservations', Associated Press, January 1, 2012.
- Jonathan Turley, The NDAA's historic assault on American liberty, The Guardian, January 2, 2012.
- Press release, December 31, 2011 from American Civil Liberties Union.