“As a young, unemployed, undereducated Yemeni, Petitioner was particularly vulnerable to the demagoguery of religious fanatics. The record reflects that Petitioner was, at best, a low-level al-Qaida figure. It does not appear that he even finished his weapons training. There is no evidence that he fired a weapon in battle or was on the front lines. There is also no evidence that he planned, participated in, or even knew of any terrorist plots. Classified documents in the record confirm the Court’s assessment. As does the fact that he appears to have been a model prisoner during his seven years of detention. The Court fails to see how, based on the record, Petitioner poses any greater threat than the dozens of detainees who recently have been transferred or cleared for transfer.”
Amnesty International calls on the US government to immediately release Musa’ab Al Madhwani unless it promptly charges him with recognizably criminal offences and brings him to fair trial, in accordance with international human rights standards. He must have access to effective remedy for the human rights violations committed against him.
failure to close guantánamo reflects failure to address it as a human rights issue
In court in the Al Madhwani case on 14 December 2009, Judge Hogan expressed his concern at the post-Boumedienelegal landscape. The District Court judges, he said, had worked “very hard and in good faith” to fill in the gaps left by the Supreme Court’s ruling, but the slowness of the process was inevitable, unfair for the detainees, and legal inconsistencies had emerged that would need to be resolved. It was “unfortunate”, Judge Hogan said, that the legislative and executive branches of government “have not moved more strongly to provide uniform, clear rules and laws for handling these cases”. He recommended a “national legislative solution” and perhaps a “new court” to handle the detainees’ cases.
While Amnesty International does not question the good faith efforts of the District Court to craft habeas corpus procedures for the detainees, it believes that the solution to the Guantánamo “problem” lies in all branches of the US government – executive, legislature and judiciary – treating it as a human rights issue. Instead the issue of Guantánamo, and “counter-terror detentions” more generally, has been treated principally as a domestic national security policy issue under a global “war” paradigm, a framework that has distorted basic notions of due process and opened the door to public fear-mongering by current and former politicians. The perspective urgently needs to change if the Guantánamo detentions are to be ended in a way that does not merely relocate the human rights violations elsewhere.
Regrettably, even some federal judges have adopted positions that can only undermine public confidence in the capacity of the ordinary criminal justice system to play its full role in the counter-terrorism context.13In the al-Bihanidecision, Circuit Judge Janice Rogers Brown, who authored the opinion, separately questioned whether “during a time of war”, a “court-driven process is best suited to protecting both the rights of [detainees] and the safety of our nation”. She continued: