A day earlier, in a precedent-setting decision, the DC Circuit Court of Appeals upheld broad authority for the government to detain individuals the Bush administration had called “enemy combatants” in the “war on terror”. The Obama administration has dropped both these labels, but has retained the position that the USA is engaged in a global war with no foreseeable end, and on this basis has continued to invoke a “law of war” framework that has distorted notions of due process and undermined human rights. Disturbingly, the judge who authored the Court of Appeals ruling made clear her view that the war paradigm “demands that new rules be written” because the “old wineskins” of international law and domestic criminal procedures are inadequate and can provide “only illusory comfort”.
This paper looks at the two decisions and places them in the context of the USA’s failure to end the Guantánamo detentions. It argues that the missed deadline is a symptom of the failure of the US government – all three branches of it – to properly confront the detentions as an international human rights issue.
Detention power upheld – flawed ‘war’ paradigm still undermining human rights
On 5 January 2010, a three-judge panel of the US Court of Appeals for the DC Circuit issued its decision in the case of Ghaleb Nassar Al-Bihani, a Yemeni man who has been held without charge in Guantánamo since 2002. This is the first time that the Court of Appeals has interpreted the Supreme Court’s 2008 Boumedieneruling in such a case. Its ruling thereby goes beyond the specific case in question and unless overturned by a majority of the full Court of Appeals or the US Supreme Court, it will set a controlling precedent over the Guantánamo habeas corpus cases in the DC District Court.2
Soon after the June 2008 Boumedieneruling, it was decided that a single judge, Senior District Judge Thomas Hogan, would develop and coordinate procedures and issues common to the cases before transferring them to the District Court’s various judges to hear the merits of each individual’s challenge to his detention. Only two judges declined to allow the cases over which they had been presiding to be included in that process of coordination. One was Judge Richard Leon, before whom the case of Ghaleb Al-Bihani was pending.