Executive orders signed by President Barack Obama within days of his taking office in 2009 held out the promise of a break with the unlawful detention and interrogation policies introduced by the Bush administration following the attacks on the US mainland on 11 September 2001 (9/11). In one of the orders, President Obama ordered his administration to resolve the Guantánamo detentions and close the detention facility there within a year, and to obtain a suspension in military commission proceedings against detainees held at Guantánamo.
Not only has the year deadline for closure been missed and no new deadline set, but military commission proceedings have resumed, and the administration appears set to continue the use of indefinite detention without criminal trial, whether or not it closes the Guantánamo detention facility. It is currently seeking congressional support for its plans.
The next few weeks may be the last chance to influence whether the administration adheres to its decision to try five Guantánamo detainees accused of involvement in the 9/11 attacks in US civilian courts, or returns them for trial by military commission. Amnesty International has long called for those responsible for the 9/11 attacks to be brought to justice in fair trials before independent and impartial civilian courts. A decision by the USA to opt for trial by military commission would be a serious setback for human rights, as would the adoption of legislation providing for indefinite detention without charge or trial.
Abandon military commissions
In November 2009, Attorney General Eric Holder announced that five detainees accused of involvement in the 9/11 attacks and charged by the Bush administration for trial by military commission – Khalid Sheikh Mohammed, Walid bin Attash, Ramzi bin al-Shibh, ‘Ali ‘Abd al-‘Aziz and Mustafa al Hawsawi – would be transferred for prosecution in a civilian federal court in New York. However, five months later, the five remain in Guantánamo and the administration is revisiting its earlier decision. Attorney General Holder told the Senate Judiciary Committee on 14 April 2010 that the administration was reviewing the case, and that a decision was expected in a “number of weeks”. On the question of which forum the men should be tried in, he described this decision as “a very close call”.
In his November 2009 announcement, Attorney General Holder also announced that military commission proceedings would be resumed against five other Guantánamo detainees. Proceedings against Omar Khadr, who has been in US military custody since he was 15 years old (he is now 23), resumed in late April 2010.
Even under the revised MCA passed in 2009, the military commissions will not meet international standards. International law requires that trials be conducted in independent courts; military commissions are not independent. The use of military tribunals to try persons who are not members of a state’s armed forces when civilian courts are readily available is inconsistent with international law. Applying inferior trial protections on the basis of nationality – US nationals cannot be tried by the military commissions – also violates the right to equality before the law. The administration has indicated that it intends to seek the death penalty for the five 9/11 defendants. Amnesty International absolutely opposes the death penalty, but even human rights bodies that have not held the death penalty to be inherently unlawful have stressed that imposition of a death sentence after a trial that has not met the strictest standards of fair trial is a violation of the right to life.
The interagency taskforce established under President Obama’s executive order on closing Guantánamo is reported to have recommended that around 35 of the detainees be prosecuted by the USA, either in federal or military commissions. The USA should abandon the military commissions in favour of trials by its ordinary federal courts.
End indefinite detention without criminal trial
Despite missing President Obama’s deadline for closing Guantánamo, the US administration maintains that it is committed to its closure. However, at the same time it appears set to continue the policy of indefinite detention without criminal trial for scores of detainees (and indeed potentially for detainees who are ultimately acquitted in a military commission trial.
The Guantánamo detainee taskforce has determined that 48 of the Guantánamo detainees can neither be prosecuted nor released by the USA, and should therefore continue to be detained indefinitely without criminal trial. The administration has proposed purchasing the Thompson Correctional Center in Illinois to hold these detainees, and those facing prosecution or continued detention prior to transfer. The administration is seeking congressional support for this proposal.
Amnesty International has long called for any Guantánamo detainee whom the USA intends to prosecute to be promptly charged and brought to criminal trial before an independent and impartial court under procedures that meet international fair trial standards. Any detainee the USA does not intend to prosecute should be immediately released.
A decision to use military commissions rather than the readily-available civilian courts, and a failure to end use of indefinite detention without criminal trial – or even to cement it into legislation – will symbolize continuity with the assault on international human rights standards that began under the administration of President George W. Bush, whether or not the Guantánamo detention facilities is closed; turning to the time-tested ordinary courts and criminal justice system would be a positive step towards the USA living up to its international legal obligations.
Any plan to close the Guantánamo detention facility must ensure that closure does not come at the expense of full respect for human rights. The decision as to which forum will be chosen for trials could be just a few weeks away, and the administration is already seeking congressional support for the continuing use of indefinite detention without criminal trial.
Take action now to stop these backward steps. Click here to email President Obama and paste the letter below into the White House Organization Contact Form.
Read more: USA: More of the same: New Manual for Military Commissions confirms acquittal may not mean release (29 April 2010)