Indefinite detention without trial

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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[edit]

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

Australia[edit]

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[edit]

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 Internal Security Act was repealed in 2012 amid public pressure for political reform.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 activities happened in Malaysia. POTA allows authorities to detain terrorism suspects without trial, but it states that no person shall be arrested for their political beliefs or activities. [3] [4] [5]

Singapore[edit]

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

Switzerland[edit]

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[edit]

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[clarification needed] of the Magna Carta which are still in effect, indefinite detention is forbidden. However, in 2006 the government passed a law[which?] allowing for indefinite detention, and many immigrants have been detained indefinitely for years as a result.[7]

United States[edit]

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;[8] one of the most highly publicized cases has been that of Jose Padilla,[9] 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.

[10][11][12][13]

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.[14][15] Congress and Senate approved the National Defense Authorization Act in December 2011 and President Barack Obama signed it December 31, 2011.[16] The new indefinite detention provision of the law was decried as a "historic assault on American liberty."[17] 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."[18] On May 16, 2012, in response to a lawsuit filed by journalist Chris Hedges, Noam Chomsky, Naomi Wolf and others,[19] 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.[20][21][22][23][24]

In 2013, the House of Representatives[25] and the Senate[26] 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.[27] The appellate court ruled: "...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.[28][29] The NDAA provision first signed into law in 2012, which permits indefinite detention without trial, remains in law as of 2015.

In addition to above, in the United States, indefinite detention is being used to hold anyone accused of committing a crime . According to 18 U.S. Code § 3142 - Release or detention of a defendant pending trial, permits indefinite detention of people who can't afford bail:[30] there have been no highly publicized cases where someone has been imprisoned for years for an accusation despite this happening quite often, but there have been highly publicized cases where people have gotten out of indefinite detention and into probation and equine therapy because of a mental illness called affluenza which happened to Ethan Couch, whose prosecution and conviction in the United States have been highly condemned.

See also[edit]

References[edit]

  1. ^ a b http://www.hrw.org/en/news/2004/12/15/uk-law-lords-rule-indefinite-detention-breaches-human-rights
  2. ^ a b http://www.lawlink.nsw.gov.au/lawlink/pdo/ll_pdo.nsf/pages/PDO_continuingdetentionorderssexoffenders
  3. ^ http://www.theguardian.com/world/2015/apr/07/malaysia-passes-tough-new-terrorism-law-raising-human-rights-fears
  4. ^ Pakiam, Ranjeetha (7 April 2015). "Malaysia Resumes Detention Without Trial With Anti-Terrorism Law". Bloomberg. 
  5. ^ http://www.thestar.com.my/News/Nation/2015/04/07/Anti-terrorism-Bill-passed-in-Parliament-after-long-debate
  6. ^ http://statutes.agc.gov.sg/non_version/cgi-bin/cgi_retrieve.pl?actno=REVED-143
  7. ^ http://www.theguardian.com/commentisfree/2012/dec/18/britain-detaining-immigrants-indefinitely
  8. ^ http://www.aclu.org/natsec/emergpowers/12483leg20011023.html
  9. ^ http://books.google.com/books?id=DzLOLY6SVQUC&pg=PA91&dq=%22indefinite+detention%22&ie=ISO-8859-1&output=html
  10. ^ Mendez, Juan (3 October 2013). "Statement of the United Nations Special Rapporteur on torture at the Expert Meeting on the situation of detainees held at the U.S. Naval Base at Guantanamo Bay". United Nations. United Nations. Retrieved 21 March 2015. 
  11. ^ "US: Prolonged Indefinite Detention Violates International Law Current Detention Practices at Guantanamo Unjustified and Arbitrary". Human Rights Watch. 24 January 2011. Retrieved 21 March 2015. 
  12. ^ Zayas, Alfred (2005). "Human Rights and Indefinite Detention" (PDF). International Review of the Red Cross 87 (857): 15–38. Retrieved 21 March 2015. 
  13. ^ "UN rights chief speaks out against US failure to close Guantanamo detention facility". 23 January 2012. Retrieved 21 March 2015. "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. 
  14. ^ Khaki, Ategah, "Senate Rejects Amendment Banning Indefinite Detention," ACLU Blog of Rights, 29 November 2011: [1].
  15. ^ Carter, Tom "US Senators back law authorizing indefinite military detention without trial or charge," World Socialist Web Site, 2 December 2011: [2].
  16. ^ Julie Pace, Obama signs defense bill despite 'serious reservations', Associated Press, January 1, 2012.
  17. ^ Jonathan Turley, The NDAA's historic assault on American liberty, The Guardian, January 2, 2012.
  18. ^ Press release, December 31, 2011 from American Civil Liberties Union.
  19. ^ Wolf, Naomi (28 March 2012). "The reason I'm helping Chris Hedges' lawsuit against the NDAA". The Guardian (London). 
  20. ^ http://nysd.uscourts.gov/cases/show.php?db=special&id=174
  21. ^ Van Voris, Bob (12 September 2012). "Military Detention Law Blocked by U.S. Judge in New York". Bloomberg. 
  22. ^ http://www.courthousenews.com/2012/05/16/46550.htm
  23. ^ "Indefinite Detention Provision Blocked". Huffington Post. 16 May 2012. 
  24. ^ http://www.salon.com/2012/05/16/federal_court_enjoins_ndaa/singleton/
  25. ^ "House Vote Preserves Indefinite Detention Of Citizens". Huffington Post. 13 June 2013. 
  26. ^ "Why Rand Paul Calls This Bill An 'Abomination'". Huffington Post. 21 December 2012. 
  27. ^ http://www.thenewamerican.com/usnews/constitution/item/16026-ndaa-indefinite-detention-without-trial-approved-by-appeals-court
  28. ^ http://www.salon.com/2013/12/27/obama_signs_ndaa_2014_indefinite_detention_remains/
  29. ^ http://www.thenewamerican.com/usnews/congress/item/17248-ted-cruz-indefinite-detention-retained-in-ndaa-2014
  30. ^ https://www.law.cornell.edu/uscode/text/18/3142