President Obama described the failure to pre-empt the attempted bombing on 25 December as “a mix of human and systemic failures that contributed to this potential catastrophic breach of security”and has outlined some immediate remedial measures in relation to intelligence and security.32However, the episode has also led to the 90 or so Yemenis still held in Guantánamo being publicly re-branded as a collective threat to national security rather than individuals whose human rights under law should be recognized and respected. Once again a failure to recognize the detentions as a human rights issue has diverted the USA from resolving the Guantánamo detentions and undermined principles to which the USA says it is committed.
As the USA took its seat on the UN Human Rights Council in September 2009, the administration maintained that the principles of the Universal Declaration of Human Rights are “as resonant today” as they were six decades ago, and that these human rights and fundamental freedoms, including “due process” and “equal rights for all”, are, “in effect, a part of our national DNA”. Among other things, it said, the USA was fully committed to universality: “We cannot pick and choose which of these rights we embrace nor select who among us are entitled to them.”33The USA is, however, choosing to deny the Guantánamo detainees the rights to which they are entitled.
A human rights approach to ending the Guantánamo detentions demands that any detainee not charged with a recognizable criminal offence for trial under fair procedures in an independent and impartial court – not a military commission with impoverished due process guarantees reserved for foreign nationals alone – should be immediately released, while ensuring that no-one is forcibly returned to a country where he would face human rights violations.34The US authorities should drop any intention to construct a system for indefinite “national security” detention of individuals in Illinois or elsewhere. To do so, on the premise of a global “war” without foreseeable end, in the name of countering the general threat of terrorism, would only entrench more firmly the mistakes made during the years of the Bush administration, putting the USA essentially into a permanent state of emergency which can only corrode respect for human rights in and by the USA, as well as undermining the confidence of its officials and population in the capacity of its own criminal justice system (in cooperation with the criminal justice systems of other states) as the bulwark of protection of the public from threats of violence. Amnesty International urges the USA to move more firmly to restore its time-tested systems of ordinary criminal justice to prominence in countering risks of violent attack against the population by individuals and non-state groups. This does not mean that it has to give up on intelligence gathering and other measures.