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'

For the past eight and a half years, the USA has been holding people in indefinite military custody at Guantánamo Bay. Scores remain held without charge or criminal trial there today. Moreover, two years after the US Supreme Court ruled in Boumediene v. Bushthat those held at the naval base had the right to a “prompt” habeas corpus hearing in US District Court to challenge the lawfulness of their detention, a majority remain without any ruling on the merits of their cases.7For example, none of the 14 men who were transferred to Guantánamo in early September 2006 from up to four and a half years held incommunicado in secret CIA custody have had rulings on the merits of their challenges.8


“Prompt”, it seems, has lost any reasonable meaning for the US authorities – part of the damage to respect for universal human rights principles wrought by the USA’s conduct in what it views as a global “war” against al-Qa’idaand associated groups. Prompt apparently no longer means “without delay” in this context, but something entirely opposite. And even a judicial order for the immediate release of a detainee does not necessarily lead to the individual’s liberty being promptly restored, notwithstanding the express agreement of the USA to article 2.3(c) of the ICCPR by which it, in the clearest possible terms, committed to “ensure that the competent authorities shall enforce such remedies when granted.”


A court’s power to obtain the immediaterelease of an unlawfully held individual must be “in its effects, real and not merely formal”.9However, the US District Court has effectively been reduced to issuing recommendations in the Guantánamo habeas corpus litigation. For even those Guantánamo detainees who have had judicial rulings in their favour are not guaranteed immediate release, and some have been held for months after such rulings as the USA has appealed the rulings (frequently, to engage in protracted and speculative arguments about the scope of possible grounds for detention – drawn out proceedings caused by the absence of any actual specific reference to detention in the AUMF and further demonstrating how woefully the US indefinite detention regime has failed to fulfil the requirement of article 9.1 of the ICCPR that “No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”).


The US authorities have also refused to release in the US mainland those who cannot be repatriated for fear of the human rights violations they would face in their home countries. In 36 of the 50 cases so far decided, the detention was found to be unlawful. Thirteen of these 36 men remain in Guantánamo.