The danger of indefinite detention

To understand the scope of Chairman Smith’s bill, take the example of someone who commits a crime and serves a five-year term. If he’s a U.S. citizen, after his prison sentence, he is released into society. If he’s an immigrant, lawfully in the country or not, the U.S. can move to deport him after his five years in prison.

However, if he is a legal immigrant but from a country such as Cuba, with which the U.S. does not have diplomatic relations, he probably cannot be deported. There are a handful of countries around the world with which the U.S. has such constrained diplomatic relations that deportation is very difficult.

What this bill would do is allow the government to lock that person up indefinitely. All it would take is a written certification every six months from the Homeland Security secretary that the detainee is a risk to the community.  

So a person who completes his sentence is suddenly subject to a lifetime in detention based purely on the unilateral and unappealable decision of an administration appointee. It gives that official full authority to subject someone to incarceration well beyond the criminal sentence imposed by the judge or jury.  

Many other countries have clear rules preventing the indefinite detention of immigrants. The European Court of Human Rights has held that detention of immigrants must end when realistic prospects of deportation do not exist. Argentina limits detention after a final deportation order to 45 days; Brazil says 60 days, after which the detainee must be released under supervision.

Freedom from arbitrary detention, including prolonged indefinite detention, is enshrined in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, which the U.S. ratified in 1992. Currently, the U.S. is in line with Europe and with countries that do not favor indefinite detention of immigrants after the decision to deport becomes final. Many immigrants in the U.S. spend years in detention before a final order of deportation is issued. Afterward, the detention limit is typically six months, unless deportation is reasonably foreseeable.  

Chairman Smith’s bill wants to do away with this six-month limit. He contends that obstinacy by countries like Iran in repatriating detainees requires this draconian change. But it violates the Constitution’s due process clause, which applies to immigrants as well as citizens. He also argues that community safety requires indefinite detention, but there are alternatives to keep our communities safe without wildly expanding the government’s power to lock people up.

What the Judiciary Committee will be debating on Thursday is nothing less than trading core constitutional protections for vague promises of security.  

Justice Antonin Scalia stated once that the “very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.”  

This bill gives the president imperial power over the judiciary and the legislature when it comes to locking up immigrants. Congress should reject this bill.

Antonio Ginatta is the U.S. advocacy director at Human Rights Watch.