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'

Amnesty International continues to call for Mohamed Odaini to be immediately repatriated to Yemen. If there is some legitimate reason why this cannot happen immediately, and immediate release in an appropriate third country is also not possible, Mohamed Odaini should be released in the USA with all necessary assistance and protection to re-establish his life. Indeed, while reparation for the harms done to Mohamed Odaini may seem less pressing than respect and fulfilment of his human right to immediate release, it is worth noting that article 9.5 of the ICCPR expressly provides that “Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.”


Normalizing delay

The USA’s sense of timing and justice also appears to have generally been warped in the case of those Guantánamo detainees it says it intends to prosecute under its global war framework.


The Obama administration, like its predecessor, has sought to entirely block post-Boumedienejudicial review in the case of those detainees whom the government has moved to prosecute, even when trial proceedings are not brought within a reasonable time or are proposed under the highly contentious military commission system. A case in point is that of Obaydullah, an Afghan national held in Guantánamo since October 2002.12A post-Boumedienehabeas corpus petition challenging the lawfulness of his detention was filed in US District Court in July 2008. Two months later, charges were sworn against Obaydullah under the Military Commissions Act (MCA) of 2006. Two yearslater, he has neither been tried nor had his habeas corpus petition heard and ruled upon.


After Obaydullah was charged under the MCA, the Bush administration moved to have his habeas corpus petition dismissed or held in abeyance until completion of the military commission proceedings against him.13In December 2008, District Court Judge Richard Leon granted the government’s motion and stayed the habeas corpus proceedings. By the time the Obama administration took office in January 2009, the charges against Obaydullah had still not been referred on for trial, and the new administration obtained a suspension of all military commission proceedings while the Guantánamo Review Task Force established by President Obama set about reviewing the Guantánamo detentions. Given the suspension of trial proceedings, Obaydullah’s habeas corpus counsel moved to have the stay on his habeas corpus challenge lifted arguing that “it could be several months or years before he is subjected to such a [trial] proceeding, if at all”.14The Obama administration opposed the motion, arguing that the charges against Obaydullah “still remain pending”.15On 22 April 2009 Judge Leon refused to lift the stay. Another year has passed since then with the Obaydullah case in limbo.