Thus it seems that the administration wants to keep all its options open. In the case of detainees whom it decides it cannot release or transfer to the custody of other governments, “when feasible” they will be tried in federal court. Where this is deemed by the executive as not feasible, it will turn to military commissions for prosecutions. Even in a case of acquittal by military commission, the outcome may be continued detention. And where no trial is deemed possible, indefinite detention without any criminal trial may yet be individual’s fate.7
Today’s resuscitation of the military commissions – originally conceived in late 2001 as part of an unlawful interrogation and detention regime – thus appears still to be part of an approach that seeks to keep the thumb firmly placed on the government’s side of the scales, with decisions on the fate of detainees taken according to which avenue is deemed most likely to achieve government “success” rather than according to adherence to principles of equality before the law, due process and human rights. The backstop to an “unsuccessful” trial is continued indefinite detention.
So, under the USA’s “global war” framework, those brought before military commissions may continue to face the possibility that whether they are convicted or acquitted makes no real difference to their situation of indefinite imprisonment. Indeed, it appears the administration and Congress are currently looking to enact new legislation to further entrench the existing system of indefinite detention without criminal trial that has grown on an ad-hoc basis through a mixture of executive, judicial, and congressional decisions taken (or not taken, as the case may be) over the past years without a full consideration by any of those bodies of the implications or long-term consequences of the cumulative effect of their decisions.
As has been shown by the current habeas corpus cases relating to Guantánamo detainees, even if a federal judge rules such a detainee unlawfully held, judicially ordered release is no guarantor of liberty. The judges only order, for example, “all necessary and appropriate steps to facilitate” the detainee’s release. Because the USA refuses to release any Guantánamo detainee in the US mainland, this judicial deference effectively allows the executive to continue to hold the detainee so long as it says it is seeking a solution to the case, a solution that may be months or years in coming to pass.
Amnesty International remains convinced that both military commissions and the use of indefinite detention without criminal trial undermine the ordinary systems of criminal justice and principles of human rights. Both policies should be abandoned, and any plan to close the Guantánamo detention facility must ensure that closure does not come at the expense of full respect for human rights.