The Authorization for Use of Military Force (AUMF) is a broadly-worded resolution passed by Congress on 14 September 2001, authorizing the President to “use all necessary force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001”. The Bush administration did not believe the AUMF placed “any limits” on presidential authority to determine the “method, timing, and nature of the response” to the attacks,4but cited it anyway in seeking to justify a range of policies, including secret detention, indefinite detention without criminal trial, trials by military commissions, and secret wiretapping. The AUMF was passed with little substantive debate, legislator confusion about what specifically it was they were voting for, and no reference to, or express provision for, the issues it has subsequently been used to justify. Regrettably, the Obama administration has cited the AUMF as providing it the authority to continue detentions at Guantánamo.5
For the Guantánamo detainees, many of whom have been held for more than eight years, the question of trials within a reasonable time has long been ignored in their plight, not least by the policy decision of the Bush administration to make trials secondary to detention and interrogations, and by the delays and indecision under the Obama administration relating to the forums in which to bring trials.6In any event, the Military Commissions Act (MCA) of 2009, signed into law by President Obama in October last year, makes no provision guaranteeing the right to trial within a reasonable time. Indeed, as under the 2006 version of the MCA, the new Act states that “any rule of courts-martial relating to speedy trial” under the Uniform Code of Military Justice “shall not apply to trial by military commission”.
The military commission system’s lack of institutional independence as compared to the ordinary federal judiciaryleaves it vulnerable to political interference and prevarication on the timing of trials. An independent civilian court would not be so exposed to such machinations. And evenif military commission authorities were to dismiss charges against a defendant with prejudice to the government (that is, without leaving it the option of re-filing military commission charges), the remedy that would be available to someone charged with a criminal offence in the USA – judicially ordered and guaranteedrelease from custody – may be unavailable to the Guantánamo detainee.