Over the past year, US detentions in the context of counter-terrorism – particularly the question of what to do with the Guantánamo detainees – have taken on a renewed domestic political dimension that has proceeded without any regard for the USA’s international human rights obligations. Congress has blocked progress on the detainee cases in a variety of ways, and further legislation is pending. On 2 February 2010, for example, a number of US Senators introduced proposals aimed at cutting off funding for the trials of the five detainees whose prosecution in federal court Attorney General Holder announced in November 2009. On 4 March 2010, Senators John McCain and Joe Lieberman introduced another bill – the Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010 – into the Senate. Senator McCain, emphasizing his claim that the USA was engaged in a global “war”, said that the bill would authorize detention without charge “for the duration of hostilities” of anyone labelled as an “unprivileged enemy belligerent”. It would prohibit any such individual from being provided a lawyer after arrest – “we should not be providing suspected terrorists” with defence lawyers, Senator McCain said. If it eventually was decided to hold a criminal trial in such a case, he added, his bill would require exclusive use of military commissions.
On 14 April 2010, Attorney General Holder told the US Senate Judiciary Committee that the administration was reviewing the question of where to prosecute the five detainees and that “no final decision has been made about the forum” in which they would be tried. He said “we expect that we will be in a position to make that determination, I think, in a number of weeks”. He said that the question of where the men should be tried was “a very close call” and that there were many legal, national security and practical factors” that had to be taken into account. He said that “New York is not off the table”, but that concerns expressed by local officials and the community about locating the trial in New York City had to be considered.
In a speech the following day, Attorney General Holder reiterated his confidence in the federal courts: “Our civilian courts have well-established rules, significant experience and more than 200 years of precedents”, he said. “In short, they have a reliability that establishes credibility. Although I’m confident we’ve done a good job of reforming and improving military commissions, they do not, yet, have the same time-tested track record of civilian courts.”9
Why then, would the US authorities risk prosecuting anyone, let alone in one of the highest profile cases in decades, in an essentially untested tribunal the international reputation of which is so tainted, which lacks the institutional independence of the ordinary federal judiciary, and which by any measure fails to include the full range of fair trial procedural guarantees recognized as necessary in trials before the ordinary courts?