* Articles Editor, Boston College Third World Law Journal (2004–2005).
1 See His Excellency Kamlesh Sharma, Permanent Representative of India to the United Nations on Measures to Eliminate Terrorism (Agenda Item 166) Statement at the Plenary of the Fifty-sixth Session of the General Assembly � 3 (Oct. 3, 2001), at http://meaindia.
nic.in/disarmament/dm03oct01.htm [hereinafter Measures to Eliminate Terrorism]. See generally H.E. Atal Behari Vajpayee, Prime Minister of India, Address to the Nation on Terrorist Attacks on the United States (Sept. 14, 2001), at http://www.indianembassy.org/special/
cabinet/primeminister/pm_september_14_2001.htm [hereinafter Prime Minister’s Address].
2 See Measures to Eliminate Terrorism, supra note 1, � 3. See generally Prime Minister’s Address, supra note 1.
3 See Robert Payne, The Life and Death of Mahatma Gandhi 624, 634 (1969) (discussing assassination of Mahatma Gandhi); M.C. Jain, Introduction: Interim Report on the Jain Commission of Inquiry on the Assassination of Shri Rajiv Gandhi, Former Prime Minister of India on 21st May, 1991 at Sriperumbudur, � 1 (Aug. 1997), available at http://www.india-today.com/jain/vol5/chap14.html (discussing former Prime Minister Rajiv Gandhi’s assassination by a Tamil suicide bomber); Manoj Joshi, Combating Terrorism in Punjab: Indian Democracy in Crisis, 261 Conflict Stud. 1 (May 1993) (discussing the assassination of a former Army chief and Prime Minister Indira Gandhi).
4 See The Current Crisis in South Asia: Hearing Before the Subcomm. on the Middle East and S. Asia of the Comm. on Int’l Relations H.R., 107th Cong. at 10 (2002) (statement of Michael Krepon, Founding President, The Henry L. Stimson Center) [hereinafter The Current Crisis in South Asia]; Embassy of India, 2001–2002 India & the World 8–10, available at http://www.indianembassy.org/policy/Foreign_Policy/2002/2002.pdf (last visited Oct. 20, 2004) (presenting official Indian data on the Jammu and Kashmir conflict). Violence in the Indian state of Jammu and Kashmir has raged for years, gaining particular momentum in 1989, and no end is in sight. See The Current Crisis in South Asia, supra, at 10–12. Muslim separatists in the region, allegedly supported by Pakistan, catalyzed three wars between India and Pakistan, including a brief but intense border conflict in 1999, raising fears in Washington of a nuclear crisis. Id. at 17 (statement of Amit A. Pandya, Senior Fellow for S. Asia, Inst. for Global Democracy); India and Pakistan: The Elephant and the Pekinese, Economist, Mar. 18, 2000, at 25. The violence in Kashmir, combined with the nuclear capabilities of India and Pakistan prompted President Bill Clinton to declare South Asia “the most dangerous place in the world.” India and Pakistan: The Elephant and the Pekinese, supra, at 25.
5 See 2003 J&K Militancy Data (Jammu and Kashmir Dep’t of Info. and Pub. Rel.), available at http://jammukashmir.nic.in/normalcy/welcome.html (last visited Oct. 20, 2004) (showing thousands killed in Kashmir); Measures to Eliminate Terrorism, supra note 1, �� 2, 3; K. Santhanam et al., Jihadis in Jammu and Kashmir: A Portrait Gallery 32 (2003) (showing timeline of terrorist activities following September 11, 2001); Navnita Chadha Behera, Kashmir: Redefining the U.S. Role, 110 Brookings Inst. Foreign Pol’y Stud. Pol’y Brief 2, 2–4 (2002), available at http://www.brookings.edu/comm/policy
briefs/pb110.htm (discussing terrorist activity post-September 11); John F. Burns, Gunmen Kill 25 Hindus in Kashmir Attacks, N.Y. Times, June 20, 1998, at A3 (discussing thousands killed in Kashmir); Tavleen Singh, Striking Terror Whether in the US or Kashmir, It’s Time To Stop Compromising on Terrorism, India Today, Sept. 24, 2001, at 21, available at 2001 WL 2176651 (discussing terrorist threat in Kashmir on September 11, 2001).
6 See, e.g., Law Commission of India, 173rd Report on Prevention of Terrorism Bill, 2000 � II 1.5–.9 (2000), reprinted in L.K Thakur, Essentials of POTA and Other Human Rights Laws 58–60 (2002) (citing over 2000 militant-related deaths in the northeast region of India during the late 1990s); 2001 Patterns of Global Terrorism 10–11, (U.S. Dept. of State), available at http://www.state.gov/documents/organization/10319.
pdf (citing various terrorist threats in India); Jain, supra note 3, � 1 (discussing the Tamil Tigers); Thakur, supra, at 1–3 (discussing the rising threat of organized crime and arms trafficking). The Tamil Tigers (also known as the Liberation Tigers of Tamil Elam (LTTE)) is a notoriously violent Sri Lankan separatist group that was responsible for the assassination of former Prime Minister Rajiv Gandhi. See Jain, supra note 3, � 1.
7 Thakur, supra note 6, at xii.
8 South Asia Human Rights Documentation Centre, Prevention of Terrorism Ordinance 2001: Government Decides to Play Judge and Jury 13 (2001) (quoting Union Home Ministry).
9 See South Asia Human Rights Documentation Centre, supra note 8, at 5–9.
10 Prevention of Terrorism Ordinance, 2001, � 3(1)–(8), reprinted in South Asia Human Rights Documentation Centre, supra note 8, at 40–41 (2001).
11 See South Asia Human Rights Documentation Centre, supra note 8, at 15; Thakur, supra note 6, at 4; TADA in New Garb, Tribune (India), Oct. 18, 2001, � 1, available at http://www.tribuneindia.com/2001/20011018/edit.htm#1.
12 See South Asia Human Rights Documentation Centre, supra note 8, at 2–3; 11 Killed in Attack on Parliament, Tribune (India), Dec. 13, 2001, available at http://www.tribuneindia.com/2001/20011213/main8.htm (reporting terrorist attack on India’s Parliament on December 13, 2001); Jyotsna Singh, India Launches Anti-Terror Law, BBC News, � 2 (Oct. 25, 2001), at http://news.bbc.co.uk/1/hi/world/south_asia/
1619870.stm (reporting criticism of POTO); TADA in New Garb, supra note 11, � 1 (criticizing POTO). In response to a terrorist attack on India’s Parliament on December 13, 2001, the Union Cabinet declared, “[w]e will liquidate the terrorists and their sponsors wherever they are, whoever they are. . . . The assault is yet another reminder that each of us must measure the issue we take up against the challenge that confronts the country.” Union Cabinet of India, Resolution on the Terrorist Attack on Parliament House, � 1 (Dec. 13, 2001), at http://www.indianembassy.org/new/parliament_dec_13_01.htm [hereinafter Union Cabinet of India].
13 See H.E. Lal Krishna Advani, Indian Home Minister, Statement on the Terrorist Attack on Parliament House, �� 1, 2 (Dec. 18, 2001), at http://www.indianembassy.org/
new/parliament_dec_13_01.htm; Parliament Suicide Attack Stuns India, BBC News (Dec. 13, 2001), at http://news.bbc.co.uk/1/hi/world/south_asia/1708853.stm.
14 Union Cabinet of India, supra note 12, � 1.
15 Two Pak-Backed Outfits Banned Under POTA, Tribune (India), Apr. 1, 2002, available at http://www.tribuneindia.com/2002/20020402/nation.htm#1. See generally Prevention of Terrorism Act, 2002, No. 15 (India), reprinted in Thakur, supra note 6, at 7–52. This Note refers to provisions and criticism of POTO interchangeably with those of POTA, because they are nearly identical.
16 See, e.g., Amnesty Int’l, Abuse of the Law in Gujarat: Muslims Detained Illegally in Ahmedabad 1–2 (Nov. 6, 2003), available at http://web.amnesty.org/aidoc/ai
doc_pdf.nsf/Index/ASA200292003ENGLISH/$File/ASA2002903.pdf (discussing illegal detention of Muslim minority and disregard for POTA safeguards) [hereinafter Abuse of the Law in Gujarat]; Human Rights Watch, In the Name of Counter-Terrorism: Human Rights Abuses Worldwide, Briefing Paper for the 59th Session of the United Nations Commission on Human Rights 15 (Mar. 25, 2003), available at http://www.hrw.org/un/chr59/counter-terrorism-bck.pdf (discussing detention of political figures, children, and the elderly) [hereinafter In the Name of Counter-Terrorism]; George Iype, Terrorising the Politicians, Rediff.com (India), �� 2, 10 (Aug. 14, 2002), at http://www.rediff.com/news/2002/aug/14spec.htm (citing 257 POTA arrests across India as of August 2002, including the arrest of a Tamil Nadu politician).
17 See Ajay Uprety, Playing a Crafty Game: Mayawati Kicks Both Friend and Foe on the Shin, Week (India), �� 10–14 (Feb. 9, 2003), at http://www.the-week.com/23feb09/events9.htm (discussing political detainees in the state of Uttar Pradesh); Purnima S. Tripathi, Coalition Troubles, Frontline (India), Mar. 1–14, 2003, �� 3–5, available at http://www.front
lineonnet.com/fl2005/stories/20030314004204000.htm (discussing political detentions in Uttar Pradesh); Selective Use of POTA, Hindu (India), Apr. 1, 2003, �� 1, 2, available at http://www.hinduonet.com/thehindu/2003/04/01/stories/2003040100391000.htm (discussing political detentions in the states of Tamil Nadu and Uttar Pradesh).
18 See Abuse of the Law in Gujarat, supra note 16, at 1–2; In the Name of Counter-Terrorism, supra note 16, at 15–16; Manoj Prasad, A 14-Year-Old Tells You What POTA Means to the Poor, Indian Express, Mar. 29, 2003, �� 1, 6, 7, 8, 11, available at http://www.indianex-
press.com/full_story.php?content_id=21041.
19 See Abuse of the Law in Gujarat, supra note 16, at 1–2; In the Name of Counter-Terrorism, supra note 16, at 15–16; Prasad, supra note 18, �� 1, 6, 7, 8, 11.
20 See Prevention of Terrorism Act, 2002, No. 15 (India), �� 23, 29, 49, reprinted in Thakur, supra note 15, at 23–27, 43–45.
21 See Prevention of Terrorism Act, �� 24 (2)–(3), 34, 40, 60 reprinted in Thakur, supra note 6, at 25–26, 31–32, 36, 48–49 (establishing review procedures); Abuse of the Law in Gujarat, supra note 16, at 1–2 (discussing prolonged detention, torture, and disregard of POTA safeguards). See generally V. Venkatesan, POTA Prospects, Frontline (India), Mar. 30-Apr. 12, 2002, available at http://www.frontlineonnet.com/fl1907/19070220.htm (discussing POTA’s safeguards) [hereinafter POTA Prospects].
22 See Prevention of Terrorism Act, �� 3–5, 49, reprinted in Thakur, supra note 6, at 43–44 (broadly defining terrorist offenses and permitting prolonged detention without charge); Abuse of the Law in Gujarat, supra note 16, at 1–2 (discussing prolonged detention, torture, and disregard of POTA safeguards); In the Name of Counter-Terrorism, supra note 16, at 15 (discussing ineffectiveness of POTA safeguards as applied).
23 See J. Venkatesan, President’s Nod for Ordinance to Repeal POTA, Sept. 21, 2004, Hindu (India), �1, available at http://www.hindu.com/2004/09/22/stories/2004092207420100.
htm. In addition to repealing POTA, the Indian government passed an ordinance to amend an existing law to replace POTA. See V. Venkatesan, POTA Reinvented, Frontline (India), Oct. 23–Nov. 5, 2004, �5, available at http://www.frontlineonnet.com/fl2122/stories/
20041105004811000.htm. The amended law immediately drew criticism for not doing enough to solve POTA’s problems. See id.
24 See Payne, supra note 3, at 618, 633–34.
25 Law Commission of India, � II 1.5–.9, reprinted in Thakur, supra note 6, at 56–60 (discussing terrorism in Jammu and Kashmir, Punjab, and northeastern India); Jain, supra note 3, �1 (discussing the Tamil Tigers).
26 See U.S. Central Intelligence Agency, The World Factbook 2004, 249 (2003) [hereinafter World Factbook]; Peter Heehs, Nationalism, Terrorism, Communalism: Essays in Modern India 135 (1998); Paul Wilkinson, Terrorism Versus Democracy: The Liberal State Response 24 (2002). Although liberal democracies are intrinsically vulnerable to terrorism, developing countries are most at risk of terrorist violence erupting into civil wars. Wilkinson, supra, at 25. International relations scholar Paul Wilkinson warns that “[i]t is absurdly parochial and dangerously misleading to pretend that terrorism is solely of concern to rich Western democracies. It is a far graver threat to human rights and well-being in the emerging democracies of the ‘Third’ and ‘Second’ worlds.” Id. at 24.
27 See India Const., pt. III, art. 22(7), pt. XXI, art. 373; Derek P. Jinks, The Anatomy of an Institutionalized Emergency: Preventative Detention and Personal Liberty in India, 22 Mich. J. Int’l L. 311, 324–25 (2001).
28 See India Const., pt. III, art. 22(7), pt. XXI, art. 373; Jinks, supra note 27, at 324–25.
29 See National Security Act, 1980, � 3(2), reprinted in D.S. Shukla, The Prevention of Terrorism Act, 2002 (POTA) 383 (2002); Terrorist and Disruptive Activities (Prevention) Act, 1987, No. 28, � 7(1), reprinted in Thakur, supra note 6, at 217; Kshitij Prabha, Terrorism: An Instrument of Foreign Policy 78–79, 90 (2001) (discussing terrorist violence in Punjab and remedial legislation); Joshi, supra note 3, at 1 (discussing separatist violence in Punjab). The government passed many other anti-terrorism laws in Punjab in addition to the NSA and TADA. Prabha, supra, at 90. TADA permits the central government to confer upon police within any state the power to arrest people “for the prevention of, and for coping with, any offence” listed in the sweeping statute, including many that merely involve speech. Terrorist and Disruptive Activities (Prevention) Act, �� 4, 7(1), reprinted in Thakur, supra note 6, at 214–17. The NSA permits police to detain a person virtually indefinitely in order to “prevent[] him from acting in any manner prejudicial to the security of the state government or . . . the maintenance of public order or . . . the maintenance of supplies and services essential to the community.” National Security Act, �� 2(2)–(3), reprinted in Shukla, supra, at 383. Though harsh, the provisions for preventative detention are somewhat understandable given the extent of violence in Punjab at the time of their passage. See Joshi, supra note 3, at 1. Terrorist atrocities in Punjab included the mass murder of minority Hindus, train shootings, bombings, kidnappings, and beheadings. See id. at 8, 11; Prabha, supra, at 79. Disturbingly, the Indian Army and police forces were themselves responsible for excessive and indiscriminate violence and custodial killings. See Joshi, supra note 3, at 6, 12, 14–15; Cynthia Keppley Mahmood, Fighting for Faith and Nation: Dialogues with Sikh Militants 10 (1996); Joyce J.M. Pettigrew, Sikhs of the Punjab: Unheard Voices of State and Guerrilla Violence 104 (1995).
30 See Jammu and Kashmir Public Safety Act (PSA) (1978), � 8, Human Rights Centre, Queen’s University Belfast, available at http://www.law.qub.ac.uk/humanrts/emergency/
india/ind5.htm (as of Oct. 20, 2004). Under the PSA, police need no court order to detain individuals as punishment or to prevent them from “acting in any manner prejudicial to the security of the state or the maintenance of public order.” Id.; see also Human Rights Watch, Behind the Kashmir Conflict: Abuses by Indian Security Forces and Militant Groups Continue, �� 10, 16 (July 1999), at http://www.hrw.org/reports/1999/kashmir/judiciary.htm (citing several instances where the law was abused) [hereinafter Behind the Kashmir Conflict].
31 Jinks, supra note 27, at 327. See J&K Panel Reviews Cases of Public Safety Act Detainees, Hindu (India), Jan. 30, 2004, � 1, available at http://www.hindu.com/2004/ 01/30/sto
ries/2004013003731200.htm.
32 Armed Forces (Assam & Manipur) Special Powers Act (1958), No. 28 (India), �� 3, 4, available at http://www.satp.org/satporgtp/countries/india/document/actandordinances/ armed_forces_special_power_act_1958.htm (as of Apr. 17, 2004).
33 The Armed Forces (Jammu and Kashmir) Special Powers Act (1990), No. 21 of 1990, available at http://www.satp.org/satporgtp/countries/india/states/jandk/documents/acts
andordinances/J&K_Specialpoweract.htm (as of Apr. 17, 2004); Prabha, supra note 29, at 90.
34 See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107–56, 115 Stat. 272 (2001) [hereinafter USA PATRIOT Act]; Prevention of Terrorism Act, 2002, No. 15 (India), �� 29, 49, 53, reprinted in Thakur, supra note 6, at 27–28, 43–44, 46–47; South Asia Human Rights Documentation Centre, supra note 8, at 5–9 (citing broad terrorist offenses based on speech and association, presumptions of guilt based on certain evidence, special anti-terror courts, trials in absentia, detention without charge for up to 180 days, and severe bail restrictions).
35 See Prevention of Terrorism Act, �� 29, 49, reprinted in Thakur, supra note 6, at 27–28, 43–44 (stipulating arrest and detention procedures that do not include preventative detention); Terrorist and Disruptive Activities (Prevention) Act, 1987, No. 28 (India), �� 4, 7(1), reprinted in Thakur, supra note 6, at 214–17 (stipulating criminal offenses and permitting preventative detention); National Security Act, 1980, � 3(2)–(3), reprinted in Shukla, supra note 29, at 383 (providing for preventative detention); Armed Forces (Assam & Manipur) Special Powers Act, 1958, No. 28 (India), �� 3, 4, supra note 32 (providing for military intervention).
36 See Prevention of Terrorism Act, �� 3(1), (3)–(5), 16(1)–(2), reprinted in Thakur, supra note 6, at 10–12 (identifying various terrorist offenses and penalties similar to TADA); Terrorist Disruptive Activities (Prevention) Act, �� 3(1), (3), (5), 8(1)–(2), reprinted in Thakur, supra note 6, at 214–18 (identifying various terrorist offenses and penalties including preventative detention similar to POTA).
37 See Prevention of Terrorism Act, � 49(2), reprinted in Thakur, supra note 6, at 43–44; South Asia Human Rights Documentation Centre, supra note 8, at 4 (arguing that POTA’s detention provisions are illegitimate and “subvert the cardinal rule of the criminal justice system by placing the burden on the accused”); Human Rights Watch, 14 “We Have No Orders to Save You” State Participation and Complicity in Communal Violence in Gujarat 14�15 (Apr. 2002), available at http://www.hrw.org/reports/2002/india/gujarat.pdf [hereinafter “We Have No Orders to Save You”]; Mukhtar Ahmad, Yasin Malik Rearrested After Getting Bail in Pota Case, Rediff.com (India), �� 1, 2, 4 (July 20, 2002), at http://www.rediff.com/
news/2002/jul/20jk1.htm (reporting that after being granted bail under POTA, police rearrested Kashmiri political activist Yasin Malik under a preventative detention law for “anti-national activities,” which suggests that the laws are used interchangeably).
38 See Prevention of Terrorism Act, �� 3, 21, 49(2), reprinted in Thakur, supra note 6, at 10–12, 21, 43–44 (providing broad definitions of terrorist offenses and prolonged detention); Abuse of the Law in Gujarat, supra note 16, at 1–2.
39 See Michael Freeman, Freedom or Security: The Consequences for Democracies Using Emergency Powers to Fight Terror 1–3 (2003).
40 See 18 U.S.C. � 2331(5) (2003); Prevention of Terrorism Act, �� 3, 21 reprinted in Thakur, supra note 6, at 10–12; South Asia Human Rights Documentation Centre, supra note 8, at 43 (discussing the broad definition of terrorism in POTO, which is identical to the definition in POTA); Jules Lobel, The War on Terrorism and Civil Liberties, 63 U. Pitt. L. Rev. 767, 789 (2002) (discussing the broad definition of terrorism in the USA PATRIOT Act). The PATRIOT Act’s definition of terrorism includes already criminalized “violent acts or acts dangerous to human life” that “appear to be intended” to “intimidate or coerce a civilian population” or “to influence the policy of a government by intimidation or coercion. 18 U.S.C. � 2331(5). Under this legal framework even protests—occasionally violent, sometimes illegal, but always intended to “intimidate or coerce a civilian population” and/or to “influence the policy of a government”—might become subject to governmental surveillance or arrest under this definition. See Lobel, supra, at 789; Patricia Mell, Big Brother at the Door: Balancing National Security with Privacy Under the USA PATRIOT Act, 80 Denv. U. L. Rev. 375, 410 (2002).
41 Prevention of Terrorism Act, � 3(1), reprinted in Thakur, supra note 6, at 10.
42 Id. � 3(3), reprinted in Thakur, supra note 6, at 11.
43 See id.; South Asia Human Rights Documentation Centre, supra note 8, at 5 (observing that the terms “advocates” and “incites” criminalize mere association or communication with terrorists); Supreme Court Upholds POTA, Vaiko May Get Some Relief, Hindu (India), Dec. 17, 2003, available at http://www.hindu.com/2003/12/17/stories/
2003121704620100.htm (Supreme Court’s statement that POTA should not be interpreted as criminalizing mere speech).
44 See Prevention of Terrorism Act, � 21(1), (3), reprinted in Thakur, supra note 6, at 21–22.
45 See id. � 3(1), (3), reprinted in Thakur, supra note 6, at 10–11.
46 See id. �� 3, 4, reprinted in Thakur, supra note 6; In re Sealed Case No. 02-001, (U.S.F-I-S-Ct. of R - 2002) (discussing enhanced surveillance of criminal investigations under USA PATRIOT Act); Heath H. Galloway, Note, Don’t Forget What We’re Fighting For: Will the Fourth Amendment Be a Casualty of the War on Terror?, 59 Wash. & Lee L. Rev. 921, 967–70 (2002) (arguing that the government could circumvent constitutional protections for ordinary criminal investigations under the USA Patriot Act).
47 See Prevention of Terrorism Act, �� 3, 4, reprinted in Thakur, supra note 6, at 10–13; South Asia Human Rights Documentation Centre, supra note 8, at 5.
48 See Prevention of Terrorism Act, �� 23, 49(2), reprinted in Thakur, supra note 6, at 23–24, 43–44.
49 See id. � 49(2), reprinted in Thakur, supra note 6, at 43–44; South Asia Human Rights Documentation Centre, supra note 8, at 87.
50 See India Const., pt. III, art. 22(2), (5); South Asia Human Rights Documentation Centre, supra note 8, at 87.
51 Hussainara Khatoon v. Home Secretary, State of Bihar, (1980) 1 S.C.C. 81, at 89, quoted in South Asia Human Rights Documentation Centre, supra note 8, at 87.
52 See Prevention of Terrorism Act, � 49(2), reprinted in Thakur, supra note 6, 43–44; South Asia Human Rights Documentation Centre, supra note 8, at 87. In some cases, however, a trial might have been speedier than a defendant would have liked. See Prevention of Terrorism Act, � 29(2), reprinted in Thakur, supra note 6, at 45. Once a case finally reached the court, the magistrate could choose to try any offense summarily and without argument from the accused if it was punishable by no more than three years in prison. Id. Neither the accused nor a representative thereof needed even be present. Id. The provision, however, limited sentencing from summary trials to a year in prison. Id.
53 See Prevention of Terrorism Act, � 49 (6)–(7), reprinted in Thakur, supra note 6, at 45; South Asia Human Rights Documentation Centre, supra note 8, at 89.
54 See Prevention of Terrorism Act, � 49 (6)–(7), reprinted in Thakur, supra note 6, at 45.
55 See id. � (7), reprinted in Thakur, supra note 6, at 45.
56 See id.; South Asia Human Rights Documentation Centre, supra note 8, at 89.
57 See Prevention of Terrorism Act, � 53(1), reprinted in Thakur, supra note 6, at 46–47; South Asia Human Rights Documentation Centre, supra note 8, at 92.
58 Prevention of Terrorism Act, � 34, reprinted in Thakur, supra note 6, at 31.
59 Id.
60 See id.
61 See id; South Asia Human Rights Documentation Centre, supra note 8, at 83.
62 POTA Prospects, supra note 21, �� 12, 13.
63 See V. Venkatesan, Reform Without Rationale, Frontline (India), Nov. 8–12, 2002, �� 1, 8, 10, available at http://www.frontlineonnet.com/fl2023/stories/20031121005902200.htm [hereinafter Reform Without Rationale].
64 See Prevention of Terrorism Act, �� 19(4)–(7), 46, 60, reprinted in Thakur, supra note 6, at 20–21, 40–41, 48–49; Reform Without Rationale, supra note 63, �� 2, 3, 4 (discussing POTA’s central review committee).
65 See Prevention of Terrorism Act, �� 19(4)–(7), 46, 60, reprinted in Thakur, supra note 6, at 20–21, 40–41, 48–49; Reform Without Rationale, supra note 63, � 3.
66 See Reform Without Rationale, supra note 63, � 4, 5.
67 See Amending POTA: Welcome Decision, Belated Though, Tribune (India), Oct. 23, 2003, � 2, available at http://www.tribuneindia.com/2003/20031023/edit.htm#1; Reform Without Rationale, supra note 63, � 6. Reported abuses included the detention of politicians, women, children, and the elderly. See N.C. Bipindra, A Handy Weapon to Settle Political Scores in Jaya’s State, Indian Express, Mar. 31, 2003, �� 1, 2, 6, available at http://www.indianex
press.com/full_story.php?content_id=21149 (reporting that the Tamil Nadu government arrested a fourteen-year-old boy and politicians); Prasad, supra note 18, �� 1, 10 (reporting that Jharkhand police arrested a fourteen-year-old boy, a fifteen-year-old boy, and five women); Rising Abuse of POTA, Tribune (India), Mar. 7, 2003, � 1, available at http://
www.tribuneindia.com/2003/20030307/edit.htm#2 (reporting that Jharkhand police arrested twelve juveniles and an eighty-one-year-old.). After the Tamil Nadu state government arrested a political opponent with ties to the central government, the center established a review commission to investigate the charges. See A. Subramani, POTA Panel Order Challenged, Hindu (India), Jan. 28, 2004, � 1, available at http://www.hindu.com/2004/
01/28/stories/2004012812650400.htm. In October, Indian President Abdul Kalam passed an ordinance making the review commission’s decisions binding on the states. J. Venkatesan, Ordinance to Amend POTA Promulgated, Hindu (India), Oct. 28, 2003, � 1, available at http://www.hindu.com/2003/10/28/stories/ 2003102808990100.htm. At the very least, the review committee has the authority to review whether or not a state government has made a prima facie case under POTA. See Reform Without Rationale, supra note 63, � 8.
68 Lok Sabha Passes Bill to Amend Terror Law, 1 Indian Dig. 2, �� 1, 2 (Dec. 2003), at http://www.indianembassy.org/i_digest/2003/dec_02/terror_bill.htm.
69 See Rajeev Dhavan, Opinion, Sugarcoating POTA, Hindu (India), Oct. 31, 2003, �� 10, 11, available at http://www.hindu.com/2003/10/31/stories/2003103100841000. htm; Reform Without Rationale, supra note 63, �� 8, 11.
70 See Iype, supra note 16, �� 1, 2, 16.
71 See id. �� 1–4.
72 Id. �� 1, 2.
73 Rakesh Sinha & Kavita Chowdhury, POTA Fact: Jharkhand Has a Lot More Terror Than J-K, Indian Express, Mar. 28, 2003, � 8 graphic, available at http://www.indianexpress.
com/full_story.php?content_id=20985.
74 See id.
75 See id; Akshaya Mukul, Jharkhand, J&K Send POTA Lists, Times of India, Jan. 17, 2004, �� 2, 4, available at http://timesofindia.indiatimes.com/articleshow/428500.cms; Iype, supra note 16, �� 1, 2, 16. By March 2003, Jharkhand had accused over 700 people under POTA. Sinha & Chowdhury, supra note 73, � 8 graphic. The total number of those accused under POTA in Jammu and Kashmir is unclear because many were unidentified. Id. However, Jharkhand had arrested 207 people while Jammu and Kashmir had arrested 168. Id. As of January 17, 2004, the Indian Home Ministry estimated that Jharkhand had 130 in jail under POTA while Jammu and Kashmir had more than it had reported, but still less than Jharkhand. Mukul, supra, �� 2, 4.
76 See Bipindra, supra note 67, �� 1, 2; (reporting that the Madras High Court set aside a POTA charge against a fifteen-year-old boy); Inder Malhotra, The Use and Misuse of POTA, Hindu (India), Oct. 10, 2003, � 9, available at http:// www.hindu.com/2003/
10/10/stories/2003101005721200.htm (reporting that Jharkhand police arrested school girls); Prasad, supra note 18, �� 1, 10 (reporting that Jharkhand police arrested a fourteen-year-old boy, a fifteen-year-old boy, and five women); Rising Abuse of POTA, supra note 67, � 1 (reporting that Jharkhand police arrested twelve juveniles and an eighty-one-year-old).
77 See Sinha & Chowdhury, supra note 73, �� 1, 2.
78 See Iype, supra note 16, at �� 5, 6, 10, 11, 13 (discussing politicians harassed under POTA); Malhotra, supra note 76, �� 2–5, 7 (discussing use of POTA to detain politicians); Uprety, supra note 17, �� 10–12 (discussing detention of political figures in Uttar Pradesh).
79 See Smita Narula, Overlooked Danger: The Security and Rights Implications of Hindu Nationalism in India, 16 Harv. Hum. Rts. J. 41, 67–68 (2003); Joshi, supra note 3, at 2; Venkitesh Ramakrishnan, The Bengal Battle, Frontline (India), Sep. 30�Oct. 13, 2000, � 13, available at http://www.flonnet.com/fl1720/17200300.htm (discussing political gamesmanship involving anti-terror legislation in West Bengal). As early as 1939, the Rashtriya Swayamsevak Sangh (RSS), a right-wing Hindu nationalist group still active in India, adopted Nazi propaganda to promote Hindu fascism. See Narula, supra, at 43–44. When POTA was passed in 2002, the head of India’s central coalition government, and champion for the Act, was the Bharatiya Janata Party (BJP), the political wing of a family of Hindu nationalist organizations, which includes the RSS. See id. at 42, 44; POTA Prospects, supra note 21, � 1. Hindu nationalist groups like the RSS have long exploited communal tensions in India for their own political ends. See Narula, supra, at 42.
80 See Iype, supra note 16, �� 15–18; POTA Prospects, supra note 21, � 26. Members of India’s opposition Congress Party decried that the law can be misused to settle political scores and engage in “political witch-hunting.” Iype, supra note 16, � 18.
81 See Iype, supra note 16, �� 5, 7, 9 (reporting on politicians targeted by POTA); Malhotra, supra note 76, �� 8–10 (discussing POTA’s use against politicians, indigent schoolgirls, and Muslim minorities); Uprety, supra note 17, �� 10–14 (discussing harassment of political opposition in Uttar Pradesh).
82 See Abuse of the Law in Gujarat, supra note 16, at 1–2; Stavan Desai, In Gujarat, Only Godhra Case Is Fit Enough for POTA, Indian Express, Apr. 3, 2003, � 1, available at http://www.indianexpress.com/full_story.php?content_id=21360; Narula, supra note 79, at 48–49. In March 2002, the government accused sixty-four people allegedly involved in the train massacre, but withdrew the POTA charges—-amidst heavy criticism of biased application—-claiming that the required formalities had not been completed. See Desai, supra, � 3. Eleven months later, after criticism died down, police arrested 123 people under POTA for the same incident claiming that they had new evidence based on a confession by one of the accused. Id. � 4.
83 See Desai, supra note 82, �� 1, 2.
84 Modi Denies Planning Snap Poll in Gujarat, Hindu (India), Mar. 31, 2002, � 7, available at http://www.hinduonnet.com/2002/03/31/stories/2002033102520800.htm.
85 See The Current Crisis in South Asia, supra note 4, at 14 (statement by Anatol Lieven, Senior Associate, Carnegie Endowment for International Peace); “We Have No Orders to Save You,” supra note 37, at 4. On the day of the train attack, a major Hindu nationalist party ordered a state wide shut down for the following day, which its cadre interpreted as a call to action. “We Have No Orders to Save You,” supra note 37, at 21. Numerous eyewitnesses reported nearly identical attacks during the riot throughout the state capital. Id. at 22. Trucks delivered thousands of attackers wearing clothing identified with the Hindu nationalist movement and armed with swords, spears, explosives, and gas canisters. Id. The attackers were equipped with printouts of the addresses of Muslim families and their properties as well as voting lists, cell phones, and water bottles. Id. at 23.
86 See Abuse of Law in Gujarat, supra note 16, at 3–4.
87 See id. at 14; Prevention of Terrorism Act, 2002, No. 15 (India), � 3(1), (3), reprinted in Thakur, supra note 6, at 10–12.
88 See Abuse of Law in Gujarat, supra note 16, at 14–15.
89 See id. at 1; Harsh Mander, State Subversion, Gujarat’s Victims Completely Isolated, Times of India, Nov. 22, 2003, � 5, available at http://timesofindia.indiatimes.com/articleshow/
295528.cms.
90 See Abuse of Law in Gujarat, supra note 16, at 1–2, 5, 6.
91 Id. at 11–12.
92 See id. at 6, 14–15; Desai, supra note 82, � 7. Amnesty International received numerous reports of illegal detentions, torture, and irregular police work in Gujarat. See Abuse of the Law in Gujarat, supra note 16, at 1–2, 6, 11. Within a month of the murder of a former Gujarat Home Minister, police had arrested approximately 380 Muslims. Id. at 3, 6. Large-scale arrests allegedly connected to the incident continued as of September 2003. Id. at 6. Police detained many suspects informally for days or weeks of interrogation without access to counsel and kept no records. Id. Police allowed some detainees to see their families but forbade others. Id. Prosecutors and court officials in at least one case seriously mishandled a habeas corpus proceeding, while police allegedly terrorized relatives of the suspects into silence. See id. at 4–6. Gujarat police may have acted out of incompetence or animus toward Muslims. See id. at 6, 14–15; Desai, supra note 82, � 7. Statements attributed to Gujarat’s Joint Commissioner of Police suggest that police misinterpreted India’s Code of Criminal Procedure regarding arrest and detention. See Abuse of the Law in Gujarat, supra note 16, at 7–8. On the other hand, there are indications that police intentionally applied POTA arbitrarily and punitively against Muslims. See id. at 14–15.
93 See Kavita Chowdhury, POTA’s New Victims: Kashmiri Students, Ostracised, Watched, Indian Express, Mar. 15, 2003, � 1, available at http://www.indianexpress.com/
full_story.php?content_id=20223; Amit Sharma, In UP, You Need to Be a Kashmiri to Know, Indian Express, Apr. 2, 2003, � 1, available at http://www.indianexpress.com/full_story.
php?content_id=21269.
94 Chowdhury, supra note 93, � 3; Sharma, supra note 93, � 1.
95 See Chowdhury, supra note 93, � 5; Sharma, supra note 93, � 5.
96 See Chowdhury, supra note 93, �� 5, 6.
97 See Selective Use of POTA, supra note 17, �� 1–3; Tripathi, supra note 17, �� 3–5.
98 See Uprety, supra note 17, �� 10–13. Police claim to have recovered a huge cache of arms and a skeleton from the accused’s premises. Id. � 11.
99 See Tripathi, supra note 17, �� 3, 4.
100 Malhotra, supra note 76, � 8.
101 Id.
102 See Shujaat Bukhari, Yasin Malik Released, Hindu (India), Nov. 12, 2002, � 1, available at http://www.hinduonnet.com/thehindu/2002/11/12/stories/2002111205080100. htm.
103 See Arun Sharma, Releases in J&K: Court Records Rebut BJP Claim, Indian Express, Nov. 27, 2002, �� 6–7, available at http://www.indianexpress.com/full_story.php?content_id=13753 (discussing Malik’s prior arrests and detentions); Malik Back to Basics: Mission Azad Kashmir, Indian Express, Nov. 16, 2002, � 1, available at http://www.indianexpress.com/full_story.php?
content_id=13139 (discussing Malik’s mission to liberate Kashmir).
104 Bukhari, supra note 102, � 7; Ahmad, supra note 37, � 6.
105 Ahmad, supra note 37, �� 3–4.
106 Id. � 1.
107 See id.; Bukhari, supra note 104, �� 1–9.
108 Mufti Islah, Mufti’s Healing Touch: Yasin Malik Returns Home from Jail, Indian Express, Nov. 12, 2002, � 6, available at http://www.indianexpress.com/full_story.php?content_id=
12927.
109 See Ahmad, supra note 37, � 1; Bukhari, supra note 102, �� 1, 7–10; Islah, supra note 108, �� 4–7.
110 See N. Sathiya Moorthy, TN Police Arrests MDMK Leader Vaiko, Rediff.com (India), �� 1, 2 (July 11, 2002), at http://www.rediff.com/news/2002/jul/11vaiko7.htm.
111 See id. �� 1, 16–18.
112 Id. � 1.
113 Id.
114 See Charge Sheet Filed Against MDMK’s Vaiko, Rediff.com (India), �� 1, 2, 3, 5 (Dec. 30, 2002), at http://www.rediff.com/news/2002/dec/30vaiko.htm.
115 See id. �� 8–10; Supreme Court Upholds POTA, supra note 43, �� 1–6.
116 See Subramani, supra, note 67, �� 1–2.
117 See Dhavan, supra note 69, �� 3, 4, 6; Iype, supra note 16, �� 5, 6, 10, 13; Reform Without Rationale, supra note 63, �� 5–8.
118 POTA Panel’s Verdict on January 23, Hindu (India), Jan. 21, 2004, � 1, available at http://www.hindu.com/2004/01/21/stories/2004012104501100.htm.
119 POTA Panel Order Challenged, Hindu (India), Jan. 21, 2004, � 1, available at http://
www.hindu.com/2004/01/28/stories/2004012812650400.htm.
120 See Vaiko Released from Prison, Rediff.com (India), � 1 (Feb. 7, 2004), at http://www.
rediff.com/election/2004/feb/07mdmk.htm.
121 In the months immediately following September 11, the U.S. government interviewed or interrogated thousands of Arab and Muslim Americans for no apparent reason other than nationality or religion. See Christopher Edley, Jr., The New American Dilemma: Racial Profiling Post-9/11, in The War on Our Freedoms: Civil Liberties in an Age of Terrorism 173 (Richard C. Leone & Greg Anrig, Jr. eds., 2003). The U.S. government continues to investigate Muslim charities based on undisclosed or minimal evidence of terrorist links. See id. at 174. Moreover, the Department of Justice directed the fifty-six field offices of the FBI to do an inventory of local mosques to prepare for counter-terrorism investigations. See id. A top FBI official involved in the mosque inventory said, “This is not politically correct, no question about it. . . . But it would be stupid not to look at this given the number of criminal mosques that may be out there.” Michael Isikoff, The FBI Says, Count the Mosques, Newsweek, Feb. 3, 2003, at 6. The U.S. government also has a history of using special investigative powers against political figures and organizations. See Ann Beeson, On the Home Front: A Lawyer’s Struggle to Defend Rights After 9/11, in The War on Our Freedoms, supra, at 298–299. The FBI wiretapped the homes of Martin Luther King Jr. and other dissidents solely because of their political beliefs. Id. at 298. The CIA spied on thousands of Americans including anti-war protestors, student activists, and black nationalists. Id. Furthermore, the 1976 Church Committee’s Report disclosed that the FBI had compiled over 500,000 intelligence files on individual Americans and domestic organizations, including 65,000 new files in 1972 alone. Id. at 298–99; see also Nicholas C. Dranias, The Patriot Act of 2001 Versus the 1976 Church Committee Report: An Unavoidable Clash of Fundamental Policy Judgments, 17 Chi. B. Ass’n Rec. 28, 28–30 (2003).
122 See 18 U.S.C. � 2331(5) (2003) (defining domestic terrorism under USA PATRIOT Act); Prevention of Terrorism Act, 2002, No. 15 (India), � 3, reprinted in Thakur, supra note 6, at 10–12 (defining terrorist offenses); South Asia Human Rights Documentation Centre, supra note 8, at 43 (discussing the broad definition of terrorism in POTO, which is identical to the definition in POTA); Richard C. Leone, The Quiet Republic: The Missing Debate About Civil Liberties After 9/11, in The War on Our Freedoms, supra note 121, at 67 (2003) (discussing climate of fear and sweeping investigative powers); Lobel, supra note 40, at 789 (discussing the broad definition of terrorism and sweeping investigative powers in the USA PATRIOT Act); Dalia Sussman, Rights Intrusions All Right, ABCNEWS.com, � 1 (Sept. 10, 2003), at http://www.abcnews.go.com/sections/us/World/sept11_terrorwar_poll030910.
html (discussing U.S. poll indicating Americans were still willing to sacrifice personal liberty to protect against terrorism even two years after the September 11 attacks). As discussed, the abuses of POTA across India are themselves indicative of the climate of fear that persists in the country.
123 See Prevention of Terrorism Act, � 49(2), (6)–(7), reprinted in Thakur, supra note 6, at 43–45 (permitting up to 180 days detention without charge and denial of bail without evidence of innocence); World Factbook supra note 26, at 249 (presenting data on several Indian religious and ethnic minorities); Law Commission of India, �� II 1.3–.10, reprinted in Thakur, supra note 6, at 56–61 (discussing separatism and terrorist violence in India associated with ethnic and religious minorities); Abuse of the Law in Gujarat, supra note 16, at 1–2 (discussing arbitrary and abusive detention of Muslim minorities in Gujarat); South Asia Human Rights Documentation Centre, supra note 8, at 87, 89 (discussing POTO’s effect on length of detention and bail proceedings and the constitutional guarantee of a speedy trial); Sinha & Chowdhury, supra note 73, � 8 graphic (reporting widespread and inconsistent use of POTA across India).
124 South Asia Human Rights Documentation Centre, supra note 8, at 10 (opposing POTO); Dhavan, supra note 69, � 11 (arguing that the legislature should repeal POTA); Throw POTA Out, Hindu (India), Oct. 28, 2003, � 6, available at http://www.hindu.com/2003/10/28/stories/2003102800961000.htm (arguing that the government should repeal POTA).
125 See Anti-Terrorism Laws: India, the United States, the United Kingdom, and Israel 3–4 (K.R. Gupta ed., 2002) (discussing criticism that POTA is redundant and would likely lead to few convictions) [hereinafter Anti-Terrorism Laws]; South Asia Human Rights Documentation Centre, supra note 8, at 17–19, 23–25 (arguing that POTO is redundant and likely to be ineffective). Critics pointed out that India already had two dozen special security laws that should have been adequate to combat terrorism. Anti-Terrorism Laws, supra, at 3; South Asia Human Rights Documentation Centre, supra note 8, at 17–19. Furthermore, all the acts of violence mentioned in POTA were already illegal under the Indian Penal Code. Anti-Terrorism Laws, supra, at 3; South Asia Human Rights Documentation Centre, supra note 8, at 20–23. Criticism that POTA would nab few terrorists stemmed from the precedent set by TADA, POTA’s predecessor, which lapsed in 1995. See South Asia Human Rights Documentation Centre, supra note 8, at 31, 32. The conviction rate under TADA was less than one percent and officials misapplied the law in more than 50,000 cases. Id. at 31.
126 See Law Commission of India, � IV, reprinted in Thakur, supra note 6, at 79 (explaining that terrorists seek to instill silence among witnesses through fear); Anti-Terrorism Laws, supra note 125, at 9 (arguing that Indian police obtained vital links in at least one case through mobile phone intercepts that would have been unavailable prior to POTO); Steven A. Osher, Privacy, Computers and the PATRIOT Act: The Fourth Amendment Isn’t Dead, But No One Will Insure It, 54 Fla. L. Rev. 521, 521 (2002) (asserting that after September 11, “urgent measures were needed to restore domestic security” in the United States); Michael F. Dowley, Note, Government Surveillance Powers Under the USA PATRIOT Act: Is It Possible to Protect National Security and Privacy at the Same Time? A Constitutional Tug-of-War, 36 Suffolk U. L. Rev. 165, 179 (2002) (arguing that the USA PATRIOT Act “may ensure America’s continued existence by allowing government agents to keep pace with technological advancements and monitor elusive terror networks within this country’s borders”).
127 Law Commission of India, � IV, reprinted in Thakur, supra note 6, at 79 (explaining that “one of the prime objects of creating terror is to silence the people by instilling a psychosis of fear in them”); Dowley, supra note 126, at 179 (arguing that the USA PATRIOT Act will help to monitor secretive terrorist networks).
128 See Law Commission of India, � VI(b), reprinted in Thakur, supra note 6, at 116–17. The Law Commission of India explicitly observes that:
So far as special courts are concerned, their creation has become necessary because of the extraordinary heavy load upon our criminal courts and the delays endemic to our criminal judicial system. . . . The principle and perhaps sole object behind [sic] creation of special courts is the anxiety to have these cases disposed of expeditiously.
Id.
129 See Prevention of Terrorism Act, 2002, No. 15 (India), �� 3, 49(2), (6)–(7), reprinted in Thakur, supra note 6, at 10–12, 43–45 (defining terrorist offenses, permitting up to 180 days detention without charge, and denying bail without evidence of innocence); South Asia Human Rights Documentation Centre, supra note 8, at 87, 89 (discussingPOTO’s effect on length of detention and bail proceedings).
130 See Abuse of the Law in Gujarat, supra note 16, at 1–2 (discussing illegal detention and torture in Gujarat); Prasad, supra note 18, �� 1–10 (reporting that Jharkhand police arrested a fourteen-year-old boy, a fifteen-year-old boy, and five women); Charge Sheet Filed Against MDMK’s Vaiko, supra note 114, �� 1, 4 (reporting formal charges against a Tamil Nadu political opposition leader filed over five months after his detention).
131 See Prevention of Terrorism Act, � 3, reprinted in Thakur, supra note 6, at 21; South Asia Human Rights Documentation Centre, supra note 8, at 4; Lakshmi Iyer, Blunting the Edge, India Today, Nov. 10, 2003, at 30, available at 2003 WL 2170360.
132 Freeman, supra note 39, at 25; see also Law Commission of India, � IV, reprinted in Thakur, supra note 6, at 74–82 (discussing the legislative intent behind various definitions of terrorism-related offenses included in POTA).
133 See Freeman, supra note 39, at 25.
134 Id.
135 Bruce Hoffman, Inside Terrorism 43 (1998).
136 See Susan Tiefenbrun, A Semiotic Approach to a Legal Definition of Terrorism, 9 ILSA J. Int’l Comp. L. 357, 365 (2003) (arguing that States may abuse or misapply broad definitions of terrorism); Law Commission of India, � IV, reprinted in Thakur, supra note 6, at 74–82 (discussing the legislative intent behind various definitions of terrorism-related offenses included in POTA).
137 See Tiefenbrun, supra note 136, at 365. A disadvantage of listing specific acts is that the definition may not apply to new modalities of terror made possible by advances in technology. Id. India might be particularly attuned to such dangers as it is home to numerous information technology jobs and Internet access is widespread. John Lancaster, Village Kiosks Bridge India’s Digital Divide, Wash. Post, Oct. 12, 2003, at A1 (discussing Internet access in remote villages); Robert J. Samuelson, The Specter of Outsourcing, Wash. Post, Jan. 14, 2004, at A19 (discussing the movement of software and communication jobs to India). However, the drafters of POTA were apparently unconcerned about cyber-terrorism because the definition of terrorist acts includes only violent acts or acts relating to terrorist organizations. See Prevention of Terrorism Act, 2002, � 3, reprinted in Thakur, supra note 6, at 10–12 (defining terrorism without specific provision for cyber-terrorism); Law Commission of India, � IV, reprinted in Thakur, supra note 6, at 74–82 (discussing the legislative intent behind various definitions of terrorism-related offenses included in POTA, but not mentioning cyber-terrorism).
138 See 18 U.S.C. � 2331(5) (2003) (broadly defining domestic terrorism under the USA PATRIOT Act without delineating specific acts); Tiefenbrun, supra note 136, at 369 (discussing the United Kingdom’s definition of terrorism that is broad but specifically includes “acts that create a serious risk to the health or safety of the public . . . or disrupt an electronic system”); Jason Binimow & Amy Bunk, Annotation, Validity, Construction, and Operation of “Foreign Terrorist Organization” Provision of Anti-Terrorism and Effective Death Penalty Act (AEDPA), 8 U.S.C. � 1189, 178 A.L.R. Fed. 535, 545–46, 550 (2002) (discussing the United States’ vague definition of terror under 1996 anti-terror legislation). But see Tiefenbrun, supra note 136, at 371, 373–74 (discussing Canadian and French anti-terror laws which delineate specific acts of terrorism including hijacking, murder, and other acts of violence).
139 Prevention of Terrorism Act, � 3(1), reprinted in Thakur, supra note 6, at 10.
140 Id.; Tiefenbrun, supra note 136, at 365.
141 See 18 U.S.C. � 2331(5)(B) (2003) (requiring that an act “appear to be intended” to intimidate or coerce a civilian population or government); Prevention of Terrorism Act, � 3(1)(a), reprinted in Thakur, supra note 6, at 10, 18; Tiefenbrun, supra note 136, at 369 (discussing the United Kingdom’s definition of terrorism, which requires that an act be “designed to influence the government or intimidate the public,” or “made for the purpose of advancing a political, religious or ideological cause”). The French, on the other hand, explicitly include an element of intent. See Tiefenbrun, supra note 136, at 371 (translating French anti-terror laws to require an act be “intentionally committed . . . in order to seriously disturb law and order by intimidation or by terror”).
142 Prevention of Terrorism Act, � 3(1)(a), reprinted in Thakur, supra note 6, at 10.
143 See id., � 3(1)(b), reprinted in Thakur, supra note 6, at 11.
144 See id.
145 See Tiefenbrun, supra note 136, at 380. For example, a violent robbery that injures a group of people can incidentally cause widespread fear and weaken the local government. See id. Terrorist groups can benefit from such lawlessness and political insecurity, particularly if they seek to overthrow the local government. See id.
146 See Prevention of Terrorism Act, � 21(1), (3), reprinted in Thakur, supra note 6, at 21–22.
147 See id.
148 Supreme Court Upholds POTA, supra note 43, �� 1, 4.
149 Id. � 9.
150 See id. The Supreme Court’s ruling should have been unnecessary given the Law Commission’s guidance regarding the Prevention of Terrorism Bill in 2000, which precipitated POTA. See Law Commission of India, � IV, reprinted in Thakur, supra note 6, at 82. The Law Commission cautioned that “inclusion of mere offensive speech in this Bill is liable to be termed a case of over-reaction and a disproportionate response . . . . [S]uch speech or its punishment should not find place in an anti-terrorism law.” Id. at 82. No member of the parliament raised this issue during the debate over POTA in 2002, and the Tamil Nadu government preferred its own interpretation of the ambiguous statute. See Moorthy, supra note 110, � 2 (reporting that Tamil Nadu police arrested Vaiko under POTA for making speeches in support of the Tamil Tigers); Under POTA, Life & Liberty on Trial, Hindu (India), � 9 (May 13, 2003), at http://www.hindu.com/thehindu/op/2003/
05/13/stories/2003051300020200.htm (observing that the Indian parliament did not discuss the Law Commission’s position of free speech under POTA.).
151 See Tiefenbrun, supra note 136, at 365, 380; Iyer, supra note 131, � 10.
152 See Hoffman, supra note 135, at 154 (discussing a definition of terrorism); Tiefenbrun, supra note 136, at 378–79 (arguing that more multilateral conventions could reach a universally-accepted definition of terrorism).
153 See Tiefenbrun, supra note 136, at 388–89. Through semiotic analysis, Professor Susan Tiefenbrun argues that definitions of terrorism generally include five basic structural elements. Id. at 388. These include: (1) the perpetration of violence by any means; (2) the targeting of innocent civilians; (3) intent to cause violence or wanton disregard for consequences; (4) the purpose of causing fear, coercion, or intimidation, and (5) political, military, ethnic, ideological, or religious ends. Id. at 360–61. An awareness of these commonalities and persistent domestic and multilateral efforts could lead to less malleable definitions with universal acceptability and more uniform application. See id. at 388–89.
154 See POTA Prospects, supra note 21, �� 8, 19. In a debate over POTA in India’s Parliament, Home Minister L.K. Advani asserted, “[I]n the new Bill, all the shortcomings that we experienced in the case of TADA—perhaps the Executive at that time in the States or at the Centre sometimes was tempted to abuse it—have been sought to be eliminated.” Id. � 9. In response to Advani’s defenses, a rival parliamentarian argued, “[W]e have learnt from the TADA . . . but you have unlearnt from it.” Id. � 8.
155 See South Asia Human Rights Documentation Centre, supra note 8, at 4 (arguing that POTA’s detention provisions are illegitimate and “subvert the cardinal rule of the criminal justice system by placing the burden on the accused”); “We Have No Orders to Save You,” supra note 37, at 14 (equating abuses under POTA with those under TADA, which permitted preventative detentions); Ahmad, supra note 37, �� 1, 2, 4 (reporting that after being granted bail under POTA, police alternatively arrested Kashmiri political activist Yasin Malik under a preventative detention law for “anti-national activities,” thus suggesting that the laws might be used interchangeably).
156 See “We Have No Orders to Save You,” supra note 37, at 14 (equating abuses under POTA with those under TADA, which permitted preventative detentions).
157 See South Asia Human Rights Documentation Centre, supra note 8, at 4, 10.
158 See India Const., pt. III, art. 21 (stating that “no person shall be deprived of his life or personal liberty except according to procedure established by law”); Abuse of Law in Gujarat, supra note 16, at 1–2, 13–14 (describing alleged custodial abuses in Gujarat); Vijayashri Sripati, Toward Fifty Years of Constitutionalism and Fundamental Rights in India: Looking Back to See Ahead, 1950–2000, 14 Am. U. Int’l. L. Rev. 413, 443–44 (1998) (observing that the Indian Supreme Court interprets Article 21 of the Indian Constitution as requiring a speedy trial).
159 See South Asia Human Rights Documentation Centre, supra note 8, at 12 (arguing that national security laws in India are usually defended on the grounds of extreme threats to public order, but are consistently applied in an arbitrary and prejudicial manner). The Law Commission on the Prevention of Terrorism Bill, 2000, acknowledged the severity of the terrorist threat but proceeded to discuss specific justifications for new evidentiary procedures. See Law Commission of India, � III, reprinted in Thakur, supra note 6, at 70–71. The Commission offered no specific justifications for longer detention periods. See id. � V, at 102–03.
160 See South Asia Human Rights Documentation Centre, supra note 8, at 4, 10 (asserting that legislators defend national security laws by citing serious threats to the public, but law enforcement officers usually apply such laws in an arbitrary and prejudicial manner); Law Commission of India, � III, reprinted in Thakur, supra note 6, 102–03 (briefly mentioning longer detention periods for terror suspects without offering specific justification).
161 Law Commission of India, � V, reprinted in Thakur, supra note 6, at 103.
162 Id.
163 Anti-Terrorism Laws, supra note 125, at 10.
164 See id.; Law Commission of India, � V, reprinted in Thakur, supra note 6, at 103.
165 See Prevention of Terrorism Act, 2002, No. 15 (India), �� 27, 32, 36–48, reprinted in Thakur, supra note 6, at 26, 30–31, 32–43.
166 See Abuse of Law in Gujarat, supra note 16, at 1–2, 6, 11.
167 See Padilla v. Rumsfeld, 243 F. Supp. 2d 42, 49–50 (S.D.N.Y. 2003). The U.S. government offered intelligence gathering as a justification for detaining a U.S. citizen suspected of terrorism indefinitely, without access to family or counsel. See id.
168 See Padilla, 243 F. Supp. 2d at 49 (citing the U.S. government’s argument that a detained terror suspect could potentially provide information about terrorist training, planning, and recruitment methods); Law Commission of India, � III, reprinted in Thakur, supra note 6, at 71 (discussing the difficulties of investigating terrorism through conventional methods). Vice Admiral Lowell E. Jacoby, Director of the U.S. Defense Intelligence Agency, argued that “[d]eveloping the kind of relationship of trust and dependency necessary for effective interrogations” could take months or even years. See Padilla, 243 F. Supp. 2d at 49.
169 India Const., pt. III, arts. 20, 21 (stating that “no person accused of any offense shall be compelled to be a witness against himself” and “no person shall be deprived of his life or personal liberty except according to procedure established by law”); Sripati, supra note 143, at 431, 443–44 (observing that Article 21 of the Indian Constitution mandates a speedy trial).
170 See India Const., pt. III, arts. 20, 21 (stating that “no person accused of any offense shall be compelled to be a witness against himself” and “no person shall be deprived of his life or personal liberty except according to procedure established by law”); Sripati, supra note 158, at 431, 443–44 (observing that the Indian Constitution grants freedom from self-incrimination and mandates a speedy trial). The Indian Constitution permits the suspension of otherwise non-derogable fundamental rights during an emergency. India Const., pt. XVIII, arts. 352–60. Indira Gandhi declared an Emergency and suspended the Indian Constitution from June 1975 through March 1977. Sripati, supra note 158, at 420. The Emergency was unpopular and helped sweep Gandhi’s party out of power. See id. at 465. The new government amended the Constitution to prohibit the suspension of Articles 20 and 21, even during an Emergency. See India Const., pt. XVIII, art. 359; Sripati, supra note 158, at 465.
171 See Freeman, supra note 39, at 11–12.
172 See id. However, should police arrest large numbers of citizens they know are innocent in the hope of improving their chances of capturing a true terrorist, this would be clearly abusive and unjustified. See id. at 38–39.
173 See id. at 2, 11. Canada successfully applied this strategy against the Front de Liberation du Quebec (FLQ) in 1970. Id. at 117. Police conducted searches and arrests without warrants and held suspects for up to twenty-one days in jail without charges. Id. at 117. Kidnappings and bombings stopped and the FLQ ceased to exist within months. Id.
174 See id. at 7. These countries include Britain, Italy, Uruguay, Canada, and Israel. Id. Detention without trial was the principle method used to combat terrorism in Northern Ireland in order to isolate all terrorists from the population. Id. at 58.
175 See Freeman, supra note 39, at 8. In Northern Ireland, the strategy was ineffective because security forces were unable to detain terrorists faster than they could be replaced. Id. at 61. Uruguay invoked the strategy with some success, but the police and military abused their powers. Id. at 108. In Peru, the government was unable to detain terrorists faster than they could be replaced, and the government abused its powers. Id. at 159, 165.
176 See id. at 2, 11–12 (discussing the inevitable costs of emergency powers and their varying effectiveness against terrorist threats); Law Commission of India, � II 1.3–1.9, reprinted in Thakur, supra note 6, at 56–60 (discussing different terrorist threats in Tamil Nadu, Jammu and Kashmir, Punjab, and the northeast region); Sinha & Chowdhury, supra note 73, � 8 graphic (showing disparities in the application of POTA throughout India).
177 See Law Commission of India, � II 1.4, reprinted in Thakur, supra note 6, at 57–58 (estimating about 300 active militants present in Punjab as of 2000); Freeman, supra note 39, at 189 (arguing that emergency powers are likely to be effective where “the state can move quickly against a small and weakly supported terrorist group . . . .”); The Current Crisis in South Asia, supra note 4, at 10 (statement of Michael Krepon, Founding President, The Henry L. Stimson Center) (discussing Pakistani support for militancy in Kashmir).
178 The Current Crisis in South Asia, supra note 4, at 13 (statement of Anatol Lieven, Senior Associate, Carnegie Endowment for International Peace) (arguing that “ruthless repression by the Indian armed forces . . . fueled the growth of Kashmiri extremism and militancy and led to a cycle of violence both by Indian security forces and by the Kashmirian [sic] militants”); Freeman, supra note 39, at 189 (asserting that harsh U.K. detention laws bolstered support for the Irish Republican Army). But see generally Singh, supra note 5 (arguing for a tougher approach to terrorism in Kashmir).
179 See South Asia Human Rights Documentation Centre, supra note 8, at 10.
180 See id. at 31 (discussing the broad powers of arrests and detentions under TADA, which led to thousands of improper arrests and a conviction rate below one percent). One supporter of POTA argued that low conviction rates under TADA were comparable to the overall criminal conviction rate in India of six and one half percent. See Anti-Terrorism Laws, supra note 125, at 4. K.P.S. Gill, former Director General of Police in Punjab quipped, “[I]f the inefficiency and incompetence of India’s criminal justice system are to be accepted as an argument against the existence of specific laws, we would have to throw the entire book of criminal statutes into the dust bin.” Id. However, 6.5% is still more than six times that of TADA and likely to be significantly higher than POTA as well. See id.; South Asia Human Rights Documentation Centre, supra note 6, at 31; Sinha & Chowdhury, supra note 73, � 8 graphic (showing significant disparities between the number of people accused under POTA and the number of cases tried in court as of March 2003).
181 See Anti-Terrorism Laws, supra note 125, at 4; South Asia Human Rights Documentation Centre, supra note 8, at 10.
182 See Prevention of Terrorism Act, 2002, No. 15 (India), �� 3(1)–(3), 21, reprinted in Thakur, supra note 15, at 10–11, 21–22 (defining terrorist offenses); Freeman, supra note 39, at 40 (discussing the importance of monitoring the use and abuse of emergency powers); Tiefenbrun, supra note 136, at 365 (arguing that broad definitions of terror invite political bias).
183 Law Commission of India, � II 1.3–.10, reprinted in Thakur, supra note 6, at 56–61 (discussing religious fundamentalist militancy and various other terrorist threats in Jammu and Kashmir, Punjab, and the northeast); see Sinha & Chowdhury, supra note 73, � 8 graphic (discussing disparities in application of POTA throughout India).
184 See Prevention of Terrorism Act, � 34, reprinted in Thakur, supra note 6, at 31 (providing that a High Court within the jurisdiction of the Special (POTA) Court may try an appeal before a bench of two judges); Abuse of the Law in Gujarat, supra note 16, at 4–6 (describing court mishandling of habeas corpus petition of Muslims illegally detained in Gujarat); “We Have No Orders to Save You,” supra note 37, at 6 (alleging local and state governmental discrimination against Muslims in Gujarat); Mander, supra note 89, �� 1–5 (reporting abuse of POTA against Muslims in Gujarat).
185 See Prevention of Terrorism Act, � 60, reprinted in Thakur, supra note 6, 48–49. The statute provided that the central and state governments “shall, whenever necessary, constitute one or more Review Committees for the purposes of this Act.” Id. � 60(1). A Committee consisted of a Chairperson and up to three others. Id. � 60(2). The Chairperson was appointed by the center or state government and had to be or have been a member of a High Court. Id. � 60(3). Only two provisions of POTA, other than section 60, referred to a Review Committee. Id. �� 19(4)–(7), 40; Reform Without Rationale, supra note 63, �� 4, 5. Section 19 provided that a central government review committee could review a refusal to remove an organization from the list of illegal terrorist groups and that the Review Committee’s decision was binding. Prevention of Terrorism Act, �� 19(4)–(7), reprinted in Thakur, supra note 6, 20–21. Section 40 required that the government submit an approved application for electronic surveillance to a Review Committee within seven days, but did not specify whether this would have been a state or central committee. Id. � 40. The purpose of this procedure was “for consideration and approval of the order by the Review Committee.” Id.
186 See Dhavan, supra note 69, � 6; POTA: Govt. Assurance on Review Panel, Hindu (India), �� 1, 2 (Mar. 5, 2003), at http://www.hinduonnet.com/thehindu/2003/03/05/stories/
2003030504651100.htm.
187 See Dhavan, supra note 69, � 9; J. Venkatesan, supra note 67, � 5; Reform Without Rationale, supra note 63, � 4.
188 See Dhavan, supra note 69, �� 3, 6–7; Reform Without Rationale, supra note 63, � 9.
189 Lok Sabha Passes Bill to Amend Anti-Terror Law, 1 Indian Dig. 2, �� 1–2 (Dec. 2003), at http://www.indianembassy.org/i_digest/2003/dec_02/terror_bill.htm.
190 See Dhavan, supra note 69, � 9; Reform Without Rationale, supra note 63, � 6.
191 See Dhavan, supra note 69, �� 9–10; Reform Without Rationale, supra note 63, � 12.
192 Dhavan, supra note 69, �� 9–10; Reform Without Rationale, supra note 63, � 12.
193 See Dhavan, supra note 69, �� 9–10; Reform Without Rationale, supra note 63, � 12.
194 See Iyer, supra note 131, �� 3, 9; Reform Without Rationale, supra note 63, � 9.
195 See Iyer, supra note 131, �� 3, 9; Reform Without Rationale, supra note 63, � 9.
196 See Charge Sheet Filed Against MDMK’s Vaiko, supra note 114, �� 1, 4; Iyer, supra note 131, �� 4, 6, 9; Reform Without Rationale, supra note 63, � 9; Vaiko Released from Prison, supra note 120, � 1.
197 See Charge Sheet Filed Against MDMK’s Vaiko, supra note 114, �� 1,4; Iyer, supra note 131, �� 4, 6, 9 (discussing Vaiko’s arrest and detention in Tamil Nadu); Prasad, supra note 18, �� 5–8, 11 (describing the plight of juveniles and the indigent under POTA in Jharkhand); Reform Without Rationale, supra note 63, � 9 (describing political abuse of POTA); Vaiko Released from Prison, supra note 120, � 1.
198 See Iyer, supra note 131, �� 3, 9 (asserting that the review process is designed to address political abuse rather than abuses like those in Jharkhand); Prasad, supra note 18, �� 5–8, 11 (describing the predicament of the indigent under POTA in Jharkhand); Abuse of Law in Gujarat, supra note 16, at 1–3, 18 (discussing alleged abuses of Muslim minority in Gujarat).
199 See World Factbook supra note 26, at 249. The CIA’s 2003 edition of its World Factbook estimates India’s population at 1,049,700,118 as of 2003. Id. According to the CIA, “Overpopulation severely handicaps the economy and about a quarter of the population is too poor to be able to afford an adequate diet.” Id. at 250
200 See U.S. State Dep’t, Country Rep. on Hum. Rts. Practices 251–53 (2003) (reporting on activity of several human rights groups in India) [hereinafter Country Rep. on Hum. Rts. Practices]; Abuse of Law in Gujarat, supra note 16, at 1–3, 18 (reporting alleged POTA abuses in Gujarat and recommending independent review and cooperation with domestic and international human rights organizations); Dhavan, supra note 69, � 9 (arguing that “[w]ith no powers of investigation and no time frame such committees are a chimera—-good from far, but far from good”); Prasad, supra note 18, �� 5–8, 11 (reporting on POTA abuses in Jharkhand); Reform Without Rationale, supra note 63, � 12 (arguing that the Review Committee will be ineffective without state cooperation and timelines decision-making).
201 See Iyer, supra note 131, �� 3–6, 9; Reform Without Rationale, supra note 63, � 9.
202 See The Current Crisis in South Asia, supra note 4, at 14 (statement of Anatol Lieven, Senior Associate, Carnegie Endowment for International Peace) (discussing BJP government involvement in Gujarat Riots); Abuse of Law in Gujarat, supra note 16, at 14–15, 19 (discussing alleged abuses of Muslim minority in Gujarat and arguing for an independent review committee); Narula, supra note 79, at 44, 50 (citing BJP as head of both central coalition government and Gujarat government during 2002 riots); Mander, supra note 89, �� 1–2 (reporting that Indian Home Minister L.K. Advani dismissed claims of government impropriety in Gujarat); Tripathi, supra note 17, �� 1, 3–4 (reporting central government support for Mayawati’s arrest of political opponent).
203 See Freeman, supra note 39, at 41, 43 (describing the role of opposition parties in checking abuses of power); Iype, supra note 16, �� 5, 10, 13, 16–19 (discussing use of POTA against politicians); Moorthy, supra note 110, �� 1–2, 16–18 (describing Tamil Nadu Chief Minister J. Jayalalitha’s arrest of political opponent Vaiko under POTA).
204 See Freeman, supra note 39, at 41.
205 Id.
206 See Prevention of Terrorism Act, 2002, No. 15 (India), �� 3, 21, 49(2), reprinted in Thakur, supra note 6, at 10–12, 21, 43–44 (providing broad definitions of terrorist offenses and prolonged detention); Abuse of the Law in Gujarat, supra note 16, at 1–2.
207 See Tiefenbrun, supra note 136, at 365, 380; Iyer, supra note 131, � 10.
208 See Prevention of Terrorism Act, �� 3(1), (3), 21(1), (3), reprinted in Thakur, supra note 6, at 10–11, 21–22; see Moorthy, supra note 110, �� 1, 2 (reporting on a politician arrested in Tamil Nadu for allegedly giving a speech in support of a dissident group).
209 President George W. Bush, Address to a Joint Session of Congress and the American People (Sept. 20, 2001), available at http://www.whitehouse.gov/news/releases/2001/
09/20010920–8.htm; see 18 U.S.C. � 2331(5) (2003). The PATRIOT Act’s definition of terrorism includes already criminalized “violent acts or acts dangerous to human life” that “appear to be intended” to “intimidate or coerce a civilian population” or “to influence the policy of a government by intimidation or coercion. 18 U.S.C. � 2331(5) (2003).
210 See Prevention of Terrorism Act, � 49(2), (6)–(7), reprinted in Thakur, supra note 6, at 43–45 (permitting up to 180 days detention without charge and denial of bail without evidence of innocence); Abuse of the Law in Gujarat, supra note 16, at 1–2 (discussing arbitrary and abusive detention of Muslim minorities in Gujarat); South Asia Human Rights Documentation Centre, supra note 8, at 87, 89 (discussing POTO’s effect on length of detention and bail proceedings and the constitutional guarantee of a speedy trial); Sinha & Chowdhury, supra note 73, � 8 graphic (reporting widespread and inconsistent use of POTA across India).
211 See Freeman, supra note 39, at 11–12, 38–39.
212 See Abuse of the Law in Gujarat, supra note 16, at 1–2 (discussing arbitrary and abusive detention of Muslim minorities in Gujarat); Sinha & Chowdhury, supra note 73, � 8 graphic (showing widespread and inconsistent use of POTA across India).
213 See The Current Crisis in South Asia, supra note 4, at 13 (statement of Anatol Lieven, Senior Associate, Carnegie Endowment for International Peace) (arguing that “ruthless repression by the Indian armed forces . . . fueled the growth of Kashmiri extremism and militancy and led to a cycle of violence both by Indian security forces and by the Kashmirian [sic] militants”); Freeman, supra note 39, at 189 (asserting that harsh U.K. detention laws bolstered support for the Irish Republican Army); Abuse of Law in Gujarat, supra note 16, at 3–4 (criticizing POTA’s exclusive application to Muslims following the riots in Gujarat).
214 See Abuse of Law in Gujarat, supra note 16, at 3–4 (discussing POTA’s exclusive application to Muslims following the riots in Gujarat).
215 See The Current Crisis in South Asia, supra note 4, at 13 (statement of Anatol Lieven, Senior Associate, Carnegie Endowment for International Peace) (arguing that “ruthless repression by the Indian armed forces . . . fueled the growth of Kashmiri extremism and militancy and led to a cycle of violence both by Indian security forces and by the Kashmirian [sic] militants”); Law Commission of India, � II 1.5–.9, reprinted in Thakur, supra note 6, at 58–60 (citing terrorist violence in Jarkhand and surrounding areas); 2001 Patterns of Global Terrorism, supra note 6, at 10–11 (discussing terrorist threats in India); Jain, supra note 3, � 1 (discussing the Tamil Tigers).
216 See Alan Brinkley, A Familiar Story: Lessons from Past Assaults on Freedoms, in The War on Our Freedoms, supra note 121, at 30–31.
217 Id. Many remained in custody for weeks or months without formal charges and were denied access to attorneys or family members. Id. Most were not radicals or law-breakers and were eventually released. Id. The crackdown, intended to reveal and destroy an alleged national, revolutionary conspiracy only netted three pistols and a small amount of radical literature. Id.
218 See Hirabayashi v. United States, 627 F. Supp. 1445, 1449 (W.D. Wash. 1986); Brinkley, supra note 216, at 40. Lt. Gen. John L. DeWitt, Commanding General of the Western Defense Command, suspected some Japanese and Japanese Americans of being disloyal. See Hirabayashi, 627 F. Supp. at 1449; Brinkley, supra note 216, at 40. At the time, the Supreme Court deferred to the military’s justification of urgent necessity, which precluded individual loyalty hearings. See Hirabayashi, 627 F. Supp. at 1454, 1455–56. Subsequent evidence proved that urgency was merely a pretext for General DeWitt’s personal prejudice. See id. at 1456. In a telephone conversation between General DeWitt and another officer regarding loyalty hearings, General DeWitt asserted that “[t]here isn’t such a thing as a loyal Japanese and it is just impossible to determine their loyalty by investigation—it just can’t be done . . . .” Id. at 1452. Presidents Gerald Ford, Ronald Reagan, and Bill Clinton all denounced the internment and issued apologies to Japanese Americans. See Mary Buckley & Rick Fawn, The War on Terror: International Implications, in Global Responses to Terrorism: 9/11, Afghanistan and Beyond 311–12 (Mary Buckley & Rick Fawn eds., 2003).
219 See 8 U.S.C. � 1226(a)(1), (3), (6) (2003). If the Attorney General has “reasonable grounds to believe” that “an alien is engaged in any . . . activity that endangers the national security of the United States” or is deportable in any other way, the Attorney General may remove that person or detain him or her for consecutive six-month periods so long as the person is considered a threat to any person or the community. Id.
220 See Leone, supra note 122, at 9. While this approach might yield nuggets of intelligence and even frustrate some attacks, it is unlikely to isolate and neutralize Al Qaeda in the United States given the group’s expansive international network. See Padilla v. Rumsfeld, 243 F. Supp. 2d 42, 49 (S.D.N.Y. 2003) (arguing that prolonged detention can elicit information from detainees); Freeman, supra note 39, at 189 (arguing that emergency powers are likely to be effective where “the state can move quickly against a small and weakly supported terrorist group”); Andrew Tan, The New Terrorism: Implications and Strategies, in The New Terrorism: Anatomy, Trends and Counter-Strategies 234 (Andrew Tan & Kumar Ramakrishna eds., 2002) (discussing the emergence of an international terrorist network which could replenish itself indefinitely); Buckley & Fawn, supra note 218, at 312–13 (discussing the detention of over 1,200 noncitizens, the need for intelligence, the threat of ethnic harassment to democratic tradition, and the need for international cooperation).
221 Leone, supra note 122, at 9.
222 H.R. 2671, 108th Cong. (2003), available at http://thomas.loc.gov/cgi-bin/query (last visited Sept. 4, 2004).
223 H.R. 2671, 108th Cong. �� 101–02; House Subcommittee Debates Local Enforcement of Immigration Laws Under Proposed CLEAR Act, 80 Interpreter Releases 1407 (Oct. 13, 2003) [hereinafter House Subcommittee Debates Local Enforcement of Immigration Laws].
224 House Subcommittee Debates Local Enforcement of Immigration Laws, supra note 223, at 1408–10.
225 See House Subcommittee Debates Local Enforcement of Immigration Laws, supra note 223, at 1410; American Civil Liberties Union, Statement on H.R. 2671, the “Clear Law Enforcement for Criminal Alien Removal (CLEAR) Act of 2003” Before the House Subcommittee on Immigration, Border Security and Claims, � 5 (Oct. 1, 2003), at http://www.aclu.org/ImmigrantsRights/
ImmigrantsRights.cfm?ID=13881&c=22.
226 See House Subcommittee Debates Local Enforcement of Immigration Laws Under Proposed CLEAR Act, supra note 223, at 1410; American Civil Liberties Union, supra note 225, � 8.
227 See Law Commission of India, � II 1.1–.10, reprinted in Thakur, supra note 6, at 56–61 (discussing Indian central government proposal for law that precipitated POTA to address pan-Indian terror threat); Sinha & Chowdhury, supra note 73, � 8 graphic (depicting widespread and varied application of POTA throughout seven Indian states).
228 See House Subcommittee Debates Local Enforcement of Immigration Laws, supra note 223, at 1410; American Civil Liberties Union, supra note 225, � 5.
229 See Abuse of the Law in Gujarat, supra note 16, at 4–6 (describing court mishandling of habeas corpus petition of Muslims illegally detained in Gujarat). Amnesty International received numerous reports of illegal detentions, torture, and irregular police work in Gujarat. See id. at 1–2, 6, 11.
230 See Country Rep. on Hum. Rts. Practices, supra note 200, at 251–53 (reporting on activity of several human rights groups in India); Abuse of Law in Gujarat, supra note 16 at 1–3, 18 (reporting alleged POTA abuses in Gujarat and recommending independent review and cooperation with domestic and international human rights organizations); Dhavan, supra note 69, � 9 (arguing that “[w]ith no powers of investigation and no time frame such committees are a chimera—good from far, but far from good.”); Prasad, supra note 18, �� 5–8, 11 (reporting on POTA abuses in Jharkhand); Reform Without Rationale, supra note 63, � 12 (arguing that the Review Committee will be ineffective without state cooperation and timelines decision-making).
231 See, e.g., In re Sealed Case, No. 02-001, (U.S. Foreign Int. Surv. Ct. Rev. Nov. 18, 2002).
232 See Anthony Lewis, Security and Liberty: Preserving the Values of Freedom, in The War on Our Freedoms, supra note 121, at 52–54.
233 See Padilla v. Rumsfeld, 352 F.3d 695, 699–700 (2d Cir. 2003), rev’d on other grounds, 124 S. Ct. 2711, 2715–17 (2004); Lewis, supra note 232, at 52–54.
234 Padilla, 352 F.3d at 700.
235 See id.
236 See id. at 700, 710.
237 See generally USA PATRIOT Act, Pub. L. 107-56, 115 Stat. 272 (2001) (not altering criminal penalties or authorizing detention without charge); Prevention of Terrorism Act, 2002, Act No. 15 (India), �� 29, 49, 53, reprinted in Thakur, supra note 6, at 27–28, 43–44, 46–47; South Asia Human Rights Documentation Centre, supra note 8, at 5–9 (citing broad terrorist offenses based on speech and association, presumptions of guilt based on certain evidence, special anti-terror courts, trials in absentia, detention without