“Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful”.8
Further, the discriminatory application of due process rights has been a hallmark of the USA’s counter-terrorism detention regime from the outset. Equal protection of the law without discrimination based on national origin is a human right.9Yet, in its Al Bihanidecision, the Court of Appeals noted that “the procedures to which Americans are entitled are likely greater than the procedures to which non-citizens seized abroad during the war on terror are entitled”. It emphasised the need for judicial deference to the executive in a time of war:
“Al-Bihani is a non-citizen who was seized in a foreign country. Requiring highly protective procedures at the tail end of the detention process for detainees like Al-Bihani would have systemic effects on the military’s entire approach to war. From the moment a shot is fired, to battlefield capture, up to a detainee’s day in court, military operations would be compromised as the government strove to satisfy evidentiary standards in anticipation of habeas litigation”.
This echoes arguments repeatedly made by the Bush administration – namely that the demands of due process would undermine the USA’s “war” effort. This argument was a smokescreen. For the Bush administration, courts, defence lawyers, human rights law and the Geneva Conventions were obstacles to the sort of interrogation methods and detention conditions it wished to employ, including at Guantánamo, far in distance and time from any actual battlefield in which the USA was involved.
Moreover, it bears repeating that those still held in Guantánamo on “war” grounds include those taken into custody far from any international battleground as traditionally understood, and not in the territory of a state at war with the USA. Saudi Arabian national Ahmed al-Darbi, for example, was arrested by civilian authorities in Baku, Azerbaijan, in 2002 and transported to Guantánamo via Bagram in Afghanistan. He remains in Guantánamo more than seven years later, as does Musa’ab Al Madhwani, arrested in a flat in Karachi in September 2002. Ahmed al-Darbi, facing trial by military commission, has still not had a habeas corpus hearing. Al Madhwani’s habeas corpus petition, on the other hand, was the subject of a decision released by the DC District Court on 6 January 2010.