An overarching theme of the USA’s failure to meet its stated commitment to adhere to human rights principles while countering terrorism is its continuing and sweeping resort to a global “war” framework in a wide range of contexts, including far from any battlefield, to the exclusion of ordinary criminal justice and law enforcement frameworks. Indeed, this is yet another issue that has marked the Ahmed Ghailani case. In its arguments before Judge Kaplan in New York in late 2009, the US Department of Justice argued that, unlike four of Ahmed Ghailani’s co-defendants, who had been brought “expeditiously” to trial after their arrest and convicted in the District Court in New York in May 2001,13 Ahmed Ghailani had been “captured during a war”, and the US government had “justifiably opted to initially treat the defendant as an intelligence asset”. After it had held him for two years in secret detention, the Obama administration argued, the government had “made the entirely reasonable decision to continue holding him as an alien enemy combatant pursuant to the laws of war and to prosecute him in a military commission”.14Amnesty International considers that neither the secret detention program nor the Guantánamo detentions, nor the military commissions, were consistent with international law.
In a reflection of how pervasive the normalization of this corrosive global “war” paradigm, widely rejected elsewhere, has become within US institutions, contaminating not only the executive and congressional branches of government, but also the judiciary, Judge Kaplan himself effectively endorsed it in his pre-trial rulings.15In his ruling that Ahmed Ghailani’s right to a speedy trial had not been violated, Judge Kaplan decided that none of the five-year period that Ahmed Ghailani had spent in CIA and military detention “subjected Ghailani to a single day of incarceration that he would not otherwise have suffered” because “he would have been detained for that entire period as an enemy combatant regardless of the pendency of this indictment”. He found that under US Supreme Court precedent, the executive, with congressional authorization, could detain “enemy combatants” for the duration of hostilities in what the previous administration had called the “war on terror”. Indeed, he wrote that Ahmed Ghailani “presumably will remain in US custody as long as hostilities with Al Qaeda continue, regardless of the outcome of this case”. The extent of the creeping normalization of “emergency” thinking and reasoning, and of the “global war” paradigm itself, is starkly represented by Ghailani’s case: he was arrested in Pakistan by Pakistani authorities, not on any battlefield in any armed conflict as that term is understood in international law.16And, as noted above, a criminal indictment had been outstanding against him in the USA since October 1998.