USA: Normalizing delay, perpetuating injustice, undermining the 'rules of the road'

June 24, 2010

USA: Normalizing delay, perpetuating injustice, undermining the 'rules of the road'

The latest National Security Strategy released by the White House on 27 May 2010 also makes promises on human rights and human dignity, some general, some specific. Generally, the strategy asserts, one of four “enduring national interests” for the USA is ensuring “respect for universal values at home and around the world”. In addition, it asserts that the “rules of the road must be followed and there must be consequences for those nations that break the rules”, such as on their “human rights commitments”. More specifically, it reiterates among other things that torture is prohibited “without exception or equivocation”. While this is welcome, some other parts of the security strategy, such as its restatement of the Obama administration’s decision to retain military commission trials and indefinite detention without charge or criminal trial for use against selected terrorism suspects, are not:


“When we are able, we will prosecute terrorists in Federal courts or in reformed military commissions that are fair, legitimate, and effective. For detainees who cannot be prosecuted – but pose a danger to the American people – we must have clear, defensible, and lawful standards. We must have fair procedures and a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.”2

As the legal authority for such detentions, the US authorities continue to rely upon the Authorization for Use of Military Force (AUMF), a broad resolution passed after little genuine debate by Congress in the immediate wake of the attacks of 11 September 2001. Because of the human rights violations that have been committed in the name of the AUMF over the years, Amnesty International has called since 2006 for its revocation. When the Obama administration took office, the organization called on it to clarify that it would not interpret the AUMF as representing any intent on the part of Congress to authorize violations of international human rights or humanitarian law, or as otherwise providing authority for such violations.3

Closure of the detention facilities at the US Naval Base in Guantánamo Bay, Cuba, is a goal repeated in the National Security Strategy, with the stated purpose not necessarily to respect and ensure human rights per se, but rather “to deny violent extremists one of their most potent recruitment tools.” A human rights approach to ending the Guantánamo detentions would include the principle that any detainee not charged with a recognizable criminal offence for trial under fair procedures in an independent and impartial court – not a military commission with impoverished due process guarantees reserved for foreign nationals alone – should be immediately released, while ensuring that no-one is forcibly returned to a country where he would face human rights violations. The US authorities should drop any intention to construct a system for indefinite “national security” detention without criminal trial of anyone who is not recognised as a prisoner of war in connection with an international armed conflict. To simply move the detention practices put in place at Guantánamo to some other location would be as hollow a gesture as would be pronouncing the terms of universal human rights while depriving them of any real meaning or effect.

A human rights approach is the one most likely to encourage constructive international cooperation with those partners who themselves profess to adhere to the principles of human rights and rule of law. A senior US Justice Department official stated recently: