USA: Still failing human rights in the name of global

Report
January 20, 2010

USA: Still failing human rights in the name of global

3 Judge Leon, nominated to the District Court by President George W. Bush in 2002, was also the first judge to interpret the US Supreme Court’s 2004 Rasul v. Bush ruling that the US District Courts had jurisdiction to consider habeas corpus petitions filed by Guantánamo detainees. In January 2005 Judge Leon ruled in favour of the Bush administration’s view that the Rasul judgment provided no more than a meaningless procedural entitlement to the Guantánamo detainees. See page 51 of USA: Guantánamo and beyond: the continuing pursuit of unchecked executive power, May 2005, http://www.amnesty.org/en/library/info/AMR51/063/2005/en.

4 One of the three judges distanced himself from this part of the panel’s decision, pointing out that “curiously”, the majority was here going “well beyond what even the government has argued in this case”, that is, that “the AUMF is informed by the [international] laws of war”.

5 In a memorandum filed in District Court in March 2009, the Justice Department revealed the new administration’s view of its authority to detain those still held at Guantánamo: “The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harboured those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces”. In an accompanying press release, the Justice Department emphasized that it was dropping the “enemy combatant” label. The administration’s underlying claim to authority to hold the detainees seemed to be substantially the same as its predecessor’s, however, and did not jettison the overarching law of war framework or expressly recognize the applicability of international human rights law to these detentions. In April 2009, a federal judge noted that the Obama administration’s definition is “broad” and one “under which mere ‘support’ of forces engaged in hostilities can justify an ‘enemy combatant’ designation.” The administration said “a broad definition is necessary to provide the Executive with the kind of operational flexibility needed in the ongoing armed conflict.” Al Bakri v. Bush, US District Court for DC, 2 April 2009 (Judge John Bates). See also USA: Different label, same policy? Administration drops ‘enemy combatant’ label in Guantánamo litigation, but retains law of war framework for detentions, 16 March 2009, http://www.amnesty.org/en/library/info/AMR51/038/2009/en.