Guantánamo detainees still waiting for judicial review

A detainee in Camp 4 at Guantánamo, October 2007

A detainee in Camp 4 at Guantánamo, October 2007

© Brennan Linsley/AP/PA Photos


9 April 2009

Only a handful of Guantánamo detainees have had court hearings to determine the lawfulness of their detention, Amnesty International points out in a new report. This is despite the US Supreme Court’s ruling (Boumediene v. Bush), 10 months ago, that the detainees were entitled to a “prompt” habeas corpus hearing.

President Barack Obama has ordered the closure of the Guantánamo detention facility by January 2010. However, the future remains uncertain for the approximately 240 detainees still held there as the executive review of their cases and of US detention policy ordered by the new President gets underway.

This review has so far led to the release of only one detainee. No Guantánamo detainee has been criminally charged by the new administration.

The Bush administration responded to the Boumediene ruling with litigation tactics that ensured delays in habeas corpus proceedings. The change in administration has led to further delays.

In the case of a number of detainees previously charged for trial by military commission, the new administration has been seeking to have their habeas corpus petitions dismissed on the grounds that the charges against them are still pending. This is despite the military commissions having been suspended at the request of President Obama. The detainees affected include Mohammed Jawad, an Afghan national who has been in US military custody for over six years since he was 16 or 17 years old.

Amnesty International has called on the administration to abandon the commissions permanently and not to block speedy habeas corpus review for any detainee seeking it.

In the seven months between the Boumediene ruling and the presidential inauguration, only nine of the 200 detainees challenging their indefinite detention as “enemy combatants” received decisions on the merits of their cases. During the first two and a half months of the new presidency, decisions were handed down in only three more cases, one of which was heard under the previous administration.

"A dozen decisions in 10 months is not the prompt review ordered by the Supreme Court,” said Rob Freer, Amnesty International’s USA researcher. “Resolution of the Guantánamo cases is already years overdue. Each day that passes without the full and clear rule of law being applied to each case is a day that compounds the years of human rights violations.”

Indefinite detention has continued in some instances despite orders by federal judges for the immediate release of the detainee. Two men seized in Bosnia and Herzegovina and taken to Guantánamo in 2002 are still held four months after they were ordered freed.

A Chadian national transported to Guantánamo in 2002 at the reported age of 14 also remains in the naval base three months after his detention was ruled unlawful.

It is six months since a federal judge ordered the release into the USA of 17 Uighur detainees no longer considered by the Bush administration to be “enemy combatants”. The new administration failed to halt its predecessor’s appeal against the ruling and, in February, the Court of Appeals overturned the release order on the basis that the judge lacked authority to grant such a remedy for unlawful detention. Such a remedy is, however, expressly required by the International Covenant on Civil and Political Rights, to which the USA is a party. The new administration appears now to be looking to exploit that decision to bolster executive control over releases from the base.

"It is unacceptable that any Guantánamo detainee continues to be held without charge or trial," said Rob Freer. "The detainees should be either charged for trial under fair procedures in existing federal courts or released immediately, into the USA if necessary.”

In its new report, Amnesty International outlines the slow pace of judicial review, and the government’s continued attempts to keep the review as narrow as possible. Illustrated with case examples, the report also details instances where the new administration has litigated to block accountability and remedy for human rights violations committed against detainees, including the crimes under international law of torture and enforced disappearance.


USA: Detainees continue to bear costs of delay and lack of remedy

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Index Number: AMR 51/050/2009
Date Published: 9 April 2009
Categories: USA

The US administration is committed to closing the Guantánamo detention facility by 22 January 2010. However, the future remains uncertain for the detainees still held there as the executive review of their cases and of US detention policy ordered by the President gets underway. Amnesty International considers it unacceptable that any Guantánamo detainee continues to be held without charge or trial, and calls for each detainee to be either charged with a recognisable criminal offence for trial under fair procedures in existing federal courts or released immediately.


USA: Judicial review and remedy still more myth than reality for Guantánamo detainees

Download:
Index Number: AMR 51/051/2009
Date Published: 9 April 2009
Categories: USA

Ten months after the US Supreme Court ruled in Boumediene v. Bush that the detainees held in US military custody at Guantánamo Bay in Cuba were entitled to a "prompt" habeas corpus hearing in district court to determine the lawfulness of their detention, only a handful of them have received such a hearing. Amnesty International details its concerns in a new report.


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