More than five months later, however, the delay continues and the five detainees – Khalid Sheikh Mohammed, Walid bin Attash, Ramzi bin al-Shibh, ‘Ali ‘Abd al-‘Aziz and Mustafa al Hawsawi – remain in Guantánamo, where they have now been held for three and a half years without trial. Prior to that, they had been detained incommunicado by the USA for up to four years at undisclosed locations, subjected to the crime under international law of enforced disappearance and other human rights violations.
This US administration has been in office for more than 15 months. It has charged only one Guantánamo detainee for trial in federal court.7Regardless of the failings of the previous administration, the USA’s failure to ensure within a reasonable time fair trials or release of other detainees is unacceptable, and violates the right to trial without undue delay.8 A fully functioning civilian judicial system, with the experience, capacity and procedures to deal with complex terrorism prosecutions, was available from day one.
This federal judicial capacity has been recognized by, among others, the USA’s chief law enforcement official himself. In his November 2009 announcement, Attorney General Holder said “I am confident in the ability of our courts to provide these defendants a fair trial, just as they have for over 200 years. The alleged 9/11 conspirators will stand trial in our justice system before an impartial jury under long-established rules and procedures.” Although such cases, he said, “can often be complex and challenging, federal prosecutors have successfully met these challenges and have convicted a number of terrorists who are now serving lengthy sentences in our prisons.” Trained and experienced personnel would be able to deal with “the security challenges posed by this case”, he added.
Since then nothing has changed with the US federal courts. They remain open for business and with the capacity and experience to conduct such trials. What has changed is the domestic political temperature. Attorney General Holder’s announcement was met with something of a political backlash which in turn, it seems, is causing a degree of backtracking by the executive. To the extent that it is not the Attorney General steering this issue raises further concern that political considerations rather than matters of law will now determine the degree of judicial independence and fairness of procedures for the trials of these individuals.
The task force established under President Obama’s 22 January 2009 executive order to close the Guantánamo detention facility is reported to have recommended that about 35 of the detainees be prosecuted by the USA, either in federal courts or military commissions, while a further 48 should be held without charge or trial. The administration has proposed purchasing Thompson Correctional Center in Illinois, including for the indefinite detention in military custody of such detainees, but is still seeking congressional support for this plan. Meanwhile releases of other Guantánamo detainees have been few and slow coming, including because of the USA’s refusal to allow detainees who cannot be returned to their home countries for fear of the human rights violations they would face there to be released in the US mainland.