Indefinite Detention

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The incarceration by a national government or law enforcement agency without a trial that is increasingly being used as a way of handling dissent. Indefinite detention (termed as “controversial” by Wikipedia) breaches a multitude of national and international laws, including human rights laws. Article 9 of the International Covenant on Civil and Political Rights affirms “the right to liberty and security of person,” adding “(n)o one shall be subjected to arbitrary arrest or detention.” Anyone arrested “shall be informed at the time of arrest of the reasons” for this action “promptly…”. America’s Fourth Amendment prohibits “unreasonable searches and seizures…”. The Fifth Amendment affirms the right of due process of law” in any proceeding that denies a citizen “life, liberty or property.” America’s Eighth Amendment prohibits “cruel and unusual punishments”. In recent years, national governments have begun removing legal obstacles to indefinite detention, often beginning first with low status minorities such as immigrants or alleged terrorists.

The nation’s 14th Amendment states “(a)ll persons born or naturalized in the United States and subject to the jurisdiction thereof…”. “No state shall make or enforce any law which shall abridge the privileges or immunities of (US) citizens..nor shall any state deprive any person of life, liberty, or property, without due process of law…”

Supreme Court rulings affirmed Bill of Rights protections. Retired Justice Anthony Kennedy sided with a majority 2008 ruling, saying:

“Until such time as it can be definitively proven that citizens no longer require the protections provided by the Bill of Rights, it shall remain the principal legal guidance for the United States of America.”

High Court constitutional protections are supposed to be inviolable. Yet the rule of law in America is being systematically eroded. In 2012, America’s National Defense Authorization Act (NDAA) legitimized indefinite detentions prohibited by international law. It permits America’s military to arrest and indefinitely detain anyone uncharged and untried at home and abroad, including US citizens – holding them on suspicions, hearsay, secret evidence, or none at all. It denies due process, equal protection under law, habeas rights, and virtually all others. US authorities may order anyone arrested and imprisoned indefinitely without charge or trial. Abuse of power replaced rule of law protections, a giant step toward full-blown tyranny in America.

The Feinstein-Lee Amendment, which temporarily protected Americans from indefinite detention (passed by the Senate 67-29), was stripped in 2013 by the group drafting the compromise version of the bill that would be presented to both houses for their approval led by the inveterate warmonger Senator John McCain (R-Ariz.).1

In a statement released on December 19, 2013, Senator Paul did what few lawmakers ever do: named names. He declared:

The decision by the NDAA conference committee, led by Sen. John McCain (R-Ariz.) to strip the National Defense Authorization Act of the amendment that protects American citizens against indefinite detention now renders the entire NDAA unconstitutional.

I voted against NDAA in 2011 because it did not contain the proper constitutional protections. When my Senate colleagues voted to include those protections in the 2012 NDAA through the Feinstein-Lee Amendment last month, I supported this act.

But removing those protections now takes us back to square one and does as much violence to the Constitution as last year’s NDAA. When the government can arrest suspects without a warrant, hold them without trial, deny them access to counsel or admission of bail, we have shorn the Bill of Rights of its sanctity.

Saying that new language somehow ensures the right to habeas corpus — the right to be presented before a judge — is both questionable and not enough. Citizens must not only be formally charged but also receive jury trials and the other protections our Constitution guarantees. Habeas corpus is simply the beginning of due process. It is by no means the whole.

Our Bill of Rights is not something that can be cherry-picked at legislators’ convenience. When I entered the United States Senate, I took an oath to uphold and defend the Constitution. It is for this reason that I will strongly oppose passage of the McCain conference report that strips the guarantee to a trial by jury.

Inviolable rights no longer apply. Opposition to imperial lawlessness, social injustice, corporate crime, government corruption, or authorities serving privileged interests exclusively can be criminalized. So can speech, media, and academic freedoms, assembly, religion, or anything challenging America’s right to kill, destroy, pillage, and do virtually anything else it wishes with impunity. Indefinite detention uncharged and untried is the hallmark of police state rule. The NDAA authorized military tribunals over civil courts at the discretion of authorities.

By a vote of 238-182, members of Congress rejected an amendment offered by Representatives Adam Smith (D-Wash.) and Justin Amash (R-Mich.) that would have repealed the indefinite detention provision passed overwhelmingly in 2012 as part of the National Defense Authorization Act of 2012.

Supreme Court rulings are mixed on this issue. In Jennings v. Rodriguez (February 2018), it reversed an appellate court decision, stating that US immigration statutes do not authorize indefinitely detaining undocumented aliens. The case was sent back to the lower court to consider statutory limits of detention. Center for Gender and Refugee Studies director Karen Musalo responded to the ruling, saying “the Court failed to recognize the statutory rights of immigrants in detention, including the many thousands of asylum seekers fleeing persecution and torture.”

The ruling potentially affects everyone arrested and detained in America. Holding anyone for any reasons uncharged and untried is a crime against humanity, violating statutes explained above.

Indefinite detention in America is longstanding. During WW II, loyal Japanese Americans were lawlessly detained without just cause. Today, social justice protesters and others wanting responsible change can be arrested and detained, charged or uncharged, tried or untried. America’s framers sought to prohibit what’s going on with Bill of Rights protections – what US ruling authorities ignore at their discretion.

The Supreme Court ruled that tribunals other than civil ones are illegal (Rasul v. Bush, June 2004). It granted Guantanamo detainees habeas rights – the ruling reversed by the 2005 Detainee Treatment Act. In Hamdan v. Rumsfeld (June 2006), the Supreme Court held that federal courts retain jurisdiction over habeas cases, affirming constitutionally guaranteed rights. In Boumediene v. Bush, the High Court again ruled that Guantanamo detainees (and everyone else held by US authorities) retain habeas rights.

Actions denying what’s affirmed under constitutional and international laws are flagrantly illegal, no allowed exceptions. US citizens and numerous others have been detained, denied due process, habeas, and equal protection under law without just cause – dehumanized, tortured, and otherwise mistreated. Post-9/11, legal protections in America greatly eroded on the phony pretext of national security concerns and global war on terrorism US authorities use to advance the nation’s imperium.

Middle East commentator Rannie Amiri cited “the muted response” of high-profile human rights groups “whose primary purpose is to stand for” fundamental rights, denouncing abuses when they occur. The ACLU, Amnesty International, Human Rights Watch, Reporters Without Borders, and other high-profile groups ignored most unlawful arrests and detentions.

Former Supreme Court Justice Antonin Scalia once said

freedom from indefinite imprisonment at the will of the Executive” represents the “very core of liberty.”

The ACLU stressed that

“(i)ndefinite detention without charge or trial violates the essence of American due process and the rule of law.”

US statutes and actions violating international and constitutional law are flagrantly illegal. America’s self-styled exceptionalism conceals its dark side, threatening everyone everywhere. That’s the deplorable state of things in the so-called “land of the free and home of the brave.”

COUNTRY’S TREATMENT OF INDEFINITE DETAINMENT

Australia

In 1994, indefinite detention was introduced to Australia, removing an earlier 273 day limit 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. All states and territories (except New South Wales) allow for indefinite detention of violent or sexual offenders who are considered unacceptably likely to reoffend.

Canada

In 1978, Canada legalized indefinite detention without trial for immigrants, unless they agreed to be deported to a nation state where they

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.

Singapore

In Singapore, the Internal Security Act allows the government to arrest and indefinitely detain individuals whom the government deems pose a threat to “national security”.

Switzerland

In Switzerland, local laws related to ‘dangerousness’ can be evoked to incarcerate persons without charge. The highest profile case was Egyptian refugee Mohamed El Ghanem, who was indefinitely detained after refusing to work as an informant for Swiss police.

United Kingdom

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 immigrants have been are being detained indefinitely for years as a result. In 2013 Harry Ferguson protested MI6’s support for detention without trial.

United States

Regarding U.S. Citizens accused of supporting “terrorism”, senator Lindsey Graham has stated before the senate,

“When they say, ‘I want my lawyer,’ you tell them: ‘Shut up. You don’t get a lawyer. You are an enemy combatant, and we are going to talk to you about why you joined Al Qaeda.’”U.S. Senator Lindsey Graham, 2011

In the United States, indefinite detention has been publicly admitted as regards so-called “terror suspects”. 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 claimed that it would rule on the legality of 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. 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. However, in 2014, the US Supreme Court effectively allowed indefinite detention by declaring that the 2012 NDAA act was not unconsitutional.

Sources:

Chronological History of Events Related to Indefinite Detainment

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Obama signs NDAA 2012 Legalizing Use of Propaganda and Indefinite Detainment of US Citizens

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British Court of Human Rights Rules Indefinite Detention Without Charge Wrong

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