“some countries won’t provide us with evidence we may need to hold suspected terrorists in law of war detention or prosecute them in military commissions. In some cases, they have agreed to extradite terrorist suspects to us only on the condition that they not be tried in military commissions. In such cases, use of federal courts may mean the difference between holding a terrorist and having him go free.”4
International cooperation is a theme that runs through the May 2010 National Security Strategy.
It is a basic principle of international human rights law that anyone deprived of his or her liberty by arrest or detention be entitled to challenge the lawfulness of their detention in a court. The purpose of this provision, including as articulated in article 9.4 of the International Covenant on Civil and Political Rights (ICCPR), is so that an independent and impartial court can rule “without delay” on the lawfulness of the individual’s detention and order his or her release if the detention is unlawful. Promptness of action is an essential ingredient. Allowing governments to take timeliness or judicial enforceability out of the equation would make a mockery of this protection against arbitrary detention.
The USA criticizes other governments for their failure to stick to the “rules of the road” on judicial review of detentions. For example, in its most recent assessment of the human rights records of other countries, an annual assessment compiled by the US Department of State which uses the Universal Declaration of Human Rights as its benchmark, the USA takes issue with Egypt’s Emergency Law. Under this law, the USA reports, an individual may be detained without charge or trial “for as long as 30 days, after which a detainee may demand a court hearing to challenge the legality of the detention order.”5In similar vein, the USA criticizes Malaysia’s Internal Security Act (ISA):
“The ISA empowers police to arrest without a warrant and hold for up to 60 days any person who acts ‘in a manner prejudicial to the national security or economic life of Malaysia.’ During the initial 60 day detention period in special detention centers, the ISA allows for the denial of legal representation and does not require that the case be brought before a court. The home minister may authorize further detention for up to two years, with an unlimited number of two-year extensions to follow. In practice the government infrequently authorized ISA detention beyond two two-year terms. However, in one case the government detained an ISA detainee for approximately seven years.”6