The Obama administration had argued to the Court that the “conflict in which al-Bihani was captured has not ended”, and that “al-Bihani did not simply participate in a war between the United States and the country of Afghanistan”, but in a conflict against “the joint forces of al-Qaida, the Taliban, and associated forces”, a conflict in which it said hostilities continue.7This is what the Bush administration had called the “war on terror”, a concept dropped by the Obama administration in name but not in substance.
The issue of war remained central to the Court’s analysis of the second of the two questions before it, namely what procedures should apply to the habeas corpus proceedings in the Guantánamo cases. The Court dismissed Al-Bihani’s arguments that, in a number of aspects, the habeas corpus procedures developed in the wake of the Boumedieneruling were inadequate. It stated that:
“Habeas review for Guantánamo detainees need not match the procedures developed by Congress and the courts specifically for habeas challenges to criminal convictions…[W]e recognize that the Great Writ is not a static institution and it did not begin its life looking like it does today. Rather, like a tree extending its branches, habeas has grown over a long history to develop various procedures applicable to various circumstances of detention…
Detention of aliens outside the sovereign territory of the United States during wartime is a different and peculiar circumstance, and the appropriate habeas procedures cannot be conceived of as mere extension of an existing doctrine. Rather, those procedures are a whole new branch of the tree.”
Amnesty International emphasises that the essence of habeas corpus proceedings has for centuries been that government authorities are required to bring an individual physically before the court and demonstrate that a clear basis in fact and law exists for their detention. If the government is unable to do so promptly (i.e. within a matter of days), the Court is to order the individual released. This is the bedrock guarantee against arbitrary detention; if it is not fully respected by the government and courts in a national legal system, the right to liberty is gravely undermined. Eighteen months after the Boumedieneruling, which itself came more than six years after detentions began at Guantánamo, a majority of those detainees who have challenged their detention in habeas corpus petitions have not yet had a hearing on the merits of their challenge. Rather than recognising that the grounds invoked by the executive find no explicit basis in Congressional legislation or international law, the judiciary has allowed itself to become mired in a lengthy process of improvisation or divination, which the Obama administration has thus far seemed content to perpetuate by asserting that the vague terms of the AUMF as “informed” by analogy to the international law of armed conflict give it broad powers to detain individuals worldwide. This illustrates how far the global war paradigm has eroded US respect for human rights. Under the International Covenant on Civil and Political Rights (ICCPR), for example,