The case was appealed to the US Court of Appeals for the DC Circuit. In January 2010, the Obama administration told the Court that the Guantánamo Review Task Force had completed its review and that the Attorney General had determined that prosecution in a military commission was “appropriate” for Obaydullah. The government’s brief said that this meant that the “prior cause of delay in the decision as to whether to refer the charges in this case has been lifted”.16Five months later, however, the charges against Obaydullah have still not been referred on for trial.
In an opinion released on 18 June 2010 – with Obaydullah soon to enter his ninth year in US military custody – the Court of Appeals revisited the question of the “prompt” habeas corpus hearing to which the US Supreme Court had said two years earlier that the Guantánamo detainees were entitled. While not entirely decoupling the habeas corpus question from the trial question, the Court of Appeals noted that the government had given no indication as to whether the charges against Obaydullah would in fact be referred on for trial or, equally important, if so, when. It further noted that under the revised MCA of 2009 there was no deadline upon the convening authority to make a decision as to whether to refer charges on for trial or not. It also noted that under revised rules for military commissions issued by the Pentagon in April 2010 the requirement articulated in the 2007 version of the rules for such a decision to be made “in a prompt manner” had been dropped.17The Court of Appeals added:
“of course, the charges may be referred to a military commission tomorrow – which could raise anew the question of possible abstention [of the District Court from habeas review] – but they may also be dropped tomorrow, or remain pending for months or years to come.
Seeing no reason sufficient to justify denying Obaydullah the ‘prompt habeas corpus hearing’ to which he is entitled, we reverse the order of the district court denying his motion and vacate the stay of his habeas corpus petition”.18
The Court of Appeals sent the case back to the District Court to pursue the habeas corpus proceedings. In the absence of an appeal from the administration, or moves to refer the charges on for trial and a court again suspending consideration the habeas corpus petition, Obaydullah’s challenge on the lawfulness of his detention might eventually be heard. It has already been delayed for years too long.
The National Security Strategy of May 2010 promises “swift and sure justice” in the case of those suspected of terrorist offences. Domestic political considerations are taking the upper hand in ensuring that delays continue, however.