In essence, he found, the Bush administration’s failure to bring Ahmed Ghailani to trial stemmed from its policy decision to prioritize intelligence gathering over due process, and its decision to treat him as a captive in a situation of armed conflict (i.e. a pervasive global war with al-Qa’idain which the USA has claimed human rights obligations are simply inapplicable). Whatever the judge’s characterisations and conclusions regarding domestic US law, however, the fact that the USA has for a number of years now chosen to disregard its clear obligations under international human rights law and to rely on distortions of the international law of armed conflict, provides no justification under international law for the violations the USA has committed against Ahmed Ghailani, including enforced disappearance and violations of the prohibition of torture and other cruel, inhuman or degrading treatment.
Over a year after he was brought to New York, Ahmed Ghailani remains the only Guantánamo detainee to be charged for trial in federal court, despite the authorities eight months ago indicating that they may prosecute around three dozen of the detainees.4
On 13 November 2009, Attorney General Eric Holder announced that five Guantánamo detainees accused of involvement in the attacks of 11 September 2001, who like Ahmed Ghailani had previously been charged by the Bush administration for trial by military commission, would be transferred for prosecution in federal court in New York. An accompanying Justice Department press release stated that “Justice has been delayed far too long.” More than 11 months later, however, the delay continues and the five detainees – Khalid Sheikh Mohammed, Walid bin Attash, Ramzi bin al-Shibh, ‘Ali ‘Abd al-‘Aziz and Mustafa al Hawsawi – remain in Guantánamo, where they have now been held for over four years without trial.5Prior to that, they had been detained incommunicado by the USA for up to four years at undisclosed locations in the CIA secret detention program and subjected to torture and other ill-treatment.
The Obama administration has been in office for more than 20 months. Regardless of the failings of the previous administration, the USA’s failure to ensure within a reasonable time fair trials or release of the Guantánamo detainees is unacceptable, and violates the right to trial without undue delay.6 A fully functioning civilian judicial system, with the experience, capacity and procedures to deal with complex terrorism prosecutions, was available from day one.