Under the ICCPR, anyone charged for trial has the right to be tried “without undue delay” (article 14.3(c)) in an independent and impartial court (article 14.1). The UN Human Rights Committee, the expert body established under the ICCPR to monitor its implementation, has emphasised that this right is “not only designed to avoid keeping persons too long in a state of uncertainty about their fate… but also to serve the interests of justice.”19 Uncertainty remains the norm for Guantánamo detainees, however, the interests of justice undermined by domestic politics.
Khalid Sheikh Mohammed was indicted in 1996 in US federal court for his alleged role in the Manila air (or “Bojinka”) plot to blow up a dozen US airliners over the Pacific, and was the subject of a reported US plan at the time of the indictment for the FBI to arrest him in Qatar and transfer him to the USA for trial.20He was eventually taken into custody in March 2003 in Pakistan. Rather than being extradited and brought to trial in the USA, however, he was summarily handed over to US agents and held in secret CIA custody for the next three and a half years and subject to enforced disappearance, torture and other cruel, inhuman or degrading treatment authorized at high levels of the US government.
On 6 September 2006, President George W. Bush announced that Khalid Sheikh Mohammed had days earlier been transferred to military detention in Guantánamo where he would face trial. He was eventually charged in February 2008 under the Military Commissions Act of 2008 with involvement in the attacks of 11 September 2001. These charges were pending against him and four other detainees at the time the Bush administration left office in January 2009. The cases sat in stasis for another 10 months until, on 13 November 2009, Attorney General Eric Holder announced that the five men “accused of conspiring to commit the 9/11 attacks” would be transferred for prosecution in federal court in New York, adding that their trials had been “too long delayed”.21However, hopes have been dashed that the administration which ordered that the CIA’s long-term secret detention facilities be closed would also act with urgency to release or bring to trial the individuals who had been held in them. Today, over seven months after the Attorney General’s announcement – and over seven years after Khalid Sheikh Mohammed was taken into custody – the five men remain in Guantánamo along with more than 170 others.