USA: Still failing human rights in the name of global ‘war’
Source: Amnesty International

As detentions in the US Naval Base in Guantánamo Bay enter their ninth year, and the 22 January 2010 deadline for the detention facility’s closure ordered by President Barack Obama approaches only to be missed, the administration has registered “wins” in two recent court decisions on the detentions. They are Pyrrhic victories for the authorities, however, coming at a high cost to human rights principles and ensuring that Guantánamo will remain synonymous with injustice well into the second year of the Obama administration.

Both decisions – one from the Court of Appeals for the District of Columbia (DC) Circuit on 5 January and the other from the DC District Court on 6 January – relate to the US Supreme Court’s ruling in Boumediene v. Bushin June 2008 that the detainees held at Guantánamo had the right to a “prompt” habeas corpus hearing to challenge the lawfulness of their detention. Developing the precise contours of the habeas corpus proceedings was left to the District Court to formulate, leading to the protracted delays that have been the hallmark of the post-Boumedienehabeas corpus litigation.1As Senior District Court Judge Thomas Hogan noted on 14 December 2009 during a hearing in the case of Musa’ab Omar Al Madhwani, a Yemeni man who has been held without charge in Guantánamo since late 2002, it is “an unfair process for the detainees in the sense that the law moves at a glacier pace”.

It was Judge Hogan who took on the role of coordinating the scores of habeas corpus petitions pending in the DC District Court on behalf of Guantánamo detainees after the Boumedieneruling. Eighteen months later, on 6 January 2010, in the case of Musa’ab Al Madhwani, he ruled that the government could lawfully continue to hold the detainee without charge. Judge Hogan nevertheless made known his disquiet about Musa’ab Al Madhwani’s ill-treatment in custody and said that he could not see why the detainee should not be released.

A day earlier, in a precedent-setting decision, the DC Circuit Court of Appeals upheld broad authority for the government to detain individuals the Bush administration had called “enemy combatants” in the “war on terror”. The Obama administration has dropped both these labels, but has retained the position that the USA is engaged in a global war with no foreseeable end, and on this basis has continued to invoke a “law of war” framework that has distorted notions of due process and undermined human rights. Disturbingly, the judge who authored the Court of Appeals ruling made clear her view that the war paradigm “demands that new rules be written” because the “old wineskins” of international law and domestic criminal procedures are inadequate and can provide “only illusory comfort”.

This paper looks at the two decisions and places them in the context of the USA’s failure to end the Guantánamo detentions. It argues that the missed deadline is a symptom of the failure of the US government – all three branches of it – to properly confront the detentions as an international human rights issue.