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USA Right The Wrong Decision Time On Guantananmo
USA Right The Wrong Decision Time On Guantananmo
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First published in January 2021
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CONTENTS
EXECUTIVE SUMMARY I
INTRODUCTION 1
GUANTÁNAMO, JANUARY 2021 – NUMBERS AT A GLANCE 3
6. CONCLUSION 46
RECOMMENDATIONS 48
CAT UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment
DC District of Columbia
This report returns to the detention facility at the US naval base in Guantánamo Bay as detentions there enter
their 20th year and as a new President prepares to enter the White House and become its fourth incumbent
during the lifetime of this prison. Each of his three predecessors stamped their policy preference on the issue.
But even as administration policy changed from ‘locate a detention facility and fill it’, to ‘review the detentions
and close the prison’, to ‘keep it open and prepare it to receive more detainees’, the ghost at the table has
been international human rights law – ignored under a ‘law of war’ framework defended by each administration
of the past 19 years.
Speaking at the Munich Security Conference in February 2009, then Vice President Joe Biden told the
audience that “We will uphold the rights of those who we bring to justice. And we will close the detention
facility at Guantánamo Bay”. He emphasized that the “treaties and international organizations we build must
be credible and they must be effective”. A dozen years later, as he prepares to enter the White House as
President, he has an opportunity to live up to those words. He should seize it.
A new urgency and energy are needed, accompanied by a genuine commitment to truth, accountability and
remedy, and a recognition that this issue must not be allowed to drift any longer. Although reducing the number
of detainees at Guantánamo, the Obama administration allowed the detentions to become mired in
bureaucracy and bogged down in partisan politics. And although things had shifted since President Bush
asserted that allegations of ill-treatment were made by people who “just don’t know what they’re talking
about”1, accountability for human rights violations was still put to one side under President Obama; effectively,
“we tortured some folks” but we must move on.2 Then that President, who ended his term in office saying
that Guantánamo was a facility that “never should have been opened in the first place” 3, handed it on to his
successor who doubled down on the notion that “terrorists are not merely criminals; they are unlawful enemy
combatants” and ordered it kept open.4 Even detainees already cleared for transfer out of the base before the
transfer of power in the White House were stuck there.
Section 2.1 and 2.2 provide a recap of how the Guantánamo detentions began, out of the decision to frame
the USA’s response to the 9/11 attacks as a “global war on terror”, bypassing human rights protections in the
pursuit of intelligence gathering. Crimes under international law such as torture and enforced disappearance
were committed against detainees deliberately held out of reach of judicial scrutiny at secret facilities operated
by the Central Intelligence Agency (CIA) in other countries or in the US naval base in Cuba. More than half of
the detainees at Guantánamo today were held in the CIA detention programme prior to being brought there,
including four who were held at Guantánamo when the CIA operated a ‘black site’ there.
Section 2.3 recalls the response of the Bush administration after the Supreme Court in 2006 reversed the
President’s decision not to apply Article 3 common to the four Geneva Conventions to the detentions, raising
fear within the administration that officials involved in detentions and interrogations could be prosecuted for
war crimes. The outcome – passage of the Military Commissions Act (MCA) of 2006 – was a legislative low
point; the President publicly exploited the cases of demonized detainees subjected to torture and enforced
1
The President’s News Conference with Chairman Hamid Karzai of the Afghan Interim Authority, White House, 28
January 2002.
2 See ‘We tortured some folks’, 2 September 2014, https://www.amnesty.org/en/documents/AMR51/046/2014/en/
3 Letter from the President to the Speaker of the House of Representatives and the President pro tempore of the Senate,
19 January 2017.
4 President Donald Trump, State of the Union Address and Executive Order 13823, Protecting America Through Lawful
While the 2006 MCA was an abdication of the duty of legislators to uphold human rights, Section 2.4 revisits
an earlier congressional action, passed three days after the 9/11 attacks. This was the Authorization for Use
of Military Force (AUMF), passed with minimal debate and used to justify a range of human rights violations
and to underpin the Guantánamo detentions to this day. It was not until a decade later that Congress returned
to the detention authority it had supposedly given the President on 14 September 2001, but in the National
Defense Authorization Act of 2012, it reinforced the ‘law of war’ detentions rather than questioning them. In
2013, President Obama promised to work with Congress to repeal the AUMF and end the USA’s “perpetual
wartime footing” it promotes, but seven and a half years later the situation remains unchanged.
It was not until 2008 that the US Supreme Court ruled in Boumediene v. Bush that the Guantánamo detainees
could challenge the lawfulness of their detentions in federal court. In reaching that decision, the Court had to
overturn a 2007 ruling from the Court of Appeals for the District of Columbia Circuit that would have left the
detainees unprotected. Boumediene said that the detainees were “entitled to a prompt habeas corpus
hearing”. Some are still waiting. Section 3 looks at post-Boumediene decisions taken by the Court of Appeals
– effectively the court of last resort for Guantánamo habeas challenges in the absence of US Supreme Court
intervention (it has absented itself from Guantánamo since 2008). The Court of Appeals has acted as
something of a barrier to successful challenges, particularly since 2010 when it issued a decision overturning
the grant of a habeas corpus petition and apparently leading thereafter to a greater deference among District
Court judges to evidence relied upon by the executive to justify detentions. The situation took a turn for the
worse in August 2020 when, as described in Section 3.1, the Court of Appeals ruled that the Due Process
Clause of the US Constitution does not apply to the detainees, as foreign nationals held outside sovereign US
territory, the same theory that led to the choice of Guantánamo as the location for detainees in the first place.
Health concerns are never far from the surface for a detainee population that has endured multiple human
rights violations. These are detentions that are inescapably bound up with multiple layers of unlawful
government conduct over the years – secret transfers, incommunicado interrogations, force feeding of hunger
strikers, torture and enforced disappearance, unfair trial proceedings. 6 Section 4 highlights recent
developments in the case of a detainee who has been held at Guantánamo for all but one month of its detention
operations. Mohammed al-Qahtani is better known for the fact that he was subjected to torture and other cruel,
inhuman or degrading treatment under a 2002 “special interrogation plan”. This Saudi national was later
charged for capital trial by military commission, but the charges were dismissed by the official overseeing the
commissions because of this torture. No one who signed off on this crime under international law – including
the former Secretary of Defense – has faced justice for it.
What is less well known about Mohammed al-Qahtani is that he had been diagnosed with psychological
disabilities long before he was brought to Guantánamo. In addition, the torture and other ill-treatment has left
him with a diagnosis of post-traumatic stress disorder and a deep distrust of medical personnel at the detention
facility given the involvement of such personnel in his torture. In March 2020, a District Court judge granted a
motion to compel examination of Mohammed al-Qahtani by a ‘mixed medical commission’, permitted under
5 See, e.g., Al Hela v. Trump, US Court of Appeals for the DC Circuit, 20 August 2020 (“Congress enacted the 2012 NDAA
in light of standards developed by the judiciary and the Executive under several earlier statutes dealing with the War on
Terror, including the AUMF, the Detainee Treatment Act of 2005, and the Military Commissions Act of 2006 and 2009”).
6 For a case study of multiple violations of international law in relation to a Guantánamo detainee, see Inter-American
Commission on Human Rights, Report No. 29/20, Case 12.865, Merits Report: Djamel Ameziane; United States of
America. April 2020, http://www.oas.org/en/iachr/decisions/2020/uspu12865en.pdf and accompanying news release
(“The case relates to the arbitrary detention of Mr Djamel Ameziane at Kandahar Airbase and Guantánamo Bay Detention
Center throughout nearly 12 years, where he was subjected to torture, poor detention conditions, there was a lack of due
process guarantees, and he was forcibly returned to Algeria. The IACHR established the existence of an officially
sanctioned regime of cruel and inhuman treatment for the purposes of interrogation at Guantánamo that was applied to
Mr Ameziane, during which he was subjected to a number of methods of physical and psychological torture. The IACHR
thus concluded that the United States’ international responsibility for violating the rights to life, integrity, and personal
security; equality before the law; religious freedom and worship; freedom of expression; protection of honor, personal
reputation, and private and family life; right to family and protection thereof; protection of health and well-being; fair trial;
assembly; property; petition; protection from arbitrary detention; and due process enshrined in the American Declaration
of the Rights and Duties of Man.”), http://www.oas.org/en/iachr/media_center/PReleases/2020/143.asp
Section 5 of the report examines another type of commission – the military commission, introduced into the
mix by the Bush administration even before Guantánamo was chosen as the location for the detentions. This
was to be the forum in which selected foreign nationals would be prosecuted without the normal rules of
evidence that are applied in the ordinary federal courts, and with the power to hand down sentences. The
report argues that, even with the various improvements to the military commissions – they are in their third
incarnation since 2001 – they remain illegitimate tribunals under international law. Such tribunals lack the
independence and impartiality necessary to deliver justice.
Amnesty International takes the view that military courts should not have jurisdiction to try civilians, owing to
the nature of these courts and because of concerns about their independence and impartiality. The UN Human
Rights Committee has held that trials of civilians by military or special tribunals must be strictly limited to
exceptional cases where the government can show that resorting to such trials is “necessary and justified by
objective and serious reasons”, and where “with regard to the specific class of individuals and offences at
issue the regular civilian courts are unable to undertake the trials”. That is not the case here. The ordinary
courts were open, available and experienced in dealing with prosecutions in terrorism cases.
Moreover, military commissions are discriminatory – as has been the detention regime more broadly. The CIA
programme of torture and enforced disappearance was reserved for foreign nationals, as is detention at
Guantánamo, as are the military commission trials there. A US citizen, even if charged with precisely the same
offences, could not be prosecuted in these tribunals. While not all differential treatment between citizens and
non-citizens violates international law, it does if it comes, as here, at the expense of rights reflected in the
Universal Declaration of Human Rights and enshrined in the International Covenant on Civil and Political
Rights and other binding international instruments.
Section 5.1 argues that there is no getting away from the backdrop to the commissions – set up not because
they were necessary in any legal sense, but as a forum for trials in which the defendants had been subjected
to torture and enforced disappearance by their captors prior to being charged. Sections 5.2 and 5.3 turn to
the six detainees facing the death penalty in a system where any executions resulting from these trials would
violate the international prohibition on the arbitrary deprivation of life. Amnesty International opposes the death
penalty in all cases without exception regardless of the nature or circumstances of the crime; guilt, innocence
or other characteristics of the individual; or the method used by the state to carry out the execution. The
organization considers the death penalty a violation of the right to life as recognized in the Universal Declaration
of Human Rights and the ultimate cruel, inhuman and degrading punishment. The six detainees facing the
death penalty have been in US custody for more than a decade and a half already, a fifth of it hidden away in
secret CIA custody. While the COVID-19 pandemic became a new cause of delays to proceedings in 2020 –
with no hearings from February until the end of the year – one capital trial had nearly four years of military
judge rulings vacated because of the judge’s appearance of bias, while proceedings against five detainees
accused of leading involvement in the 9/11 attacks have seen six different military judges overseeing the case
in the past two years. In late 2020 the prosecution objected to the judge who had been appointed on the
grounds that he did not have the qualifications or experience for the job and said it would move for his recusal
if he did not remove himself. It subsequently filed such a motion. At the end of the year, the judge was replaced.
Section 5.4 looks at the case of Mohammed Bin Lep, one of three southeast Asian nationals who for the past
decade have been under threat of military commission trials, but against whom charges have not been referred
for trial. In December 2020, a federal court, although noting the “compelling, and at times disconcerting,
description of the ‘state of limbo’ [Bin Lep] continues to endure with no end in sight”, refused to issue an
injunction stopping the government from taking any further steps towards trial on the claim that delay and
discrimination have rendered any future prosecution unlawful. As in the 9/11 proceedings, the case also shows
some human resources mayhem in the commission system. A key position, the Convening Authority, has
faced substantial chop and change, with five individuals being appointed to it over the past year. Finally,
Section 5.5 outlines the case of the only detainee serving a prison sentence at Guantánamo after his 2008
conviction by military commission. Two of his three charges have been overturned on appeal, and his third is
disputed. Despite this, his life sentence on the three charges remains intact. His lawyers have argued this
leaves him effectively serving life without the possibility of parole because under the rules of the Periodic
Review Board, he is not eligible for review. They have also claimed that he is being held in cruel isolation under
a policy segregating convicted detainees from the other detainees.
Section 6 is a reminder of the absence of accountability for the crimes under international law committed
against these and other detainees. It highlights the case of Abu Zubaydah who has been held without charge
or trial for nearly 19 years, four and a half of them subjected to enforced disappearance. Effectively
experimented upon by the CIA in 2002 in its use of its then newly developed “enhanced interrogation
techniques”, he remains in the classified conditions of Camp 7 of Guantánamo, with his habeas corpus
petition, filed in District Court in 2008, not yet ruled upon over a dozen years later. His lawyers are currently
seeking his medical records from his time in CIA custody – with the government having given a schedule for
locating and redacting the classified records that would take at least six years for the lawyers to receive them.
Abu Zubaydah’s name appears more than 1,000 times in the declassified summary of the report into the CIA
detention and interrogation programme published by the Senate Select Committee on Intelligence (SSCI) in
late 2014. The main SSCI report remains classified at the highest level of secrecy. It runs to more than 6,000
pages and contains details of the treatment of all the detainees known to have been held in the programme –
including Abu Zubaydah and 23 other detainees held in Guantánamo and one other who to date is the only
Guantánamo detainee to have been transferred to the USA for trial (where he was sentenced in 2010). This
report should be declassified as a step towards the individual and collective right to truth about the human
rights violations that were perpetrated in the CIA programme and towards the remedy and accountability that
the USA is obliged under international law to ensure.
In its Recommendations, Amnesty International calls on the incoming administration to close the detention
facility at Guantánamo Bay once and for all. All those still detained there must either be transferred out and
released, or if there is sufficient admissible evidence under international law to prosecute internationally
recognizable criminal offences then to do so through fair judicial resolution before a federal court without
recourse to the death penalty. Detainees held at Guantánamo and elsewhere by the USA since 9/11 have
been subjected to torture and enforced disappearance. The USA must investigate and bring suspected
perpetrators of these crimes under international law to justice, whatever their current or former level of office.
After a period in the USA in which many pressing social, environmental and justice issues have been set back,
the Biden administration’s plate will undoubtedly be full. But not so full as to be unable to prioritize and
resource closure of Guantánamo, to promptly begin to work for a lawful resolution of each detainee case, and
to commit to a new and full respect by the USA for international human rights law. In the end, this is about
more than the 40 people still held at Guantánamo. It is not only about the detentions today, but also about
crimes under international law from yesterday and the lack of accountability and remedy for them. It is about
the future too, of the approaching 20th anniversary of the crime against humanity committed on 11 September
2001 and moving beyond it with the USA striving for real and enduring justice and with a commitment to be
a genuine exemplar of human rights.
METHODOLOGY
This report updates Amnesty International’s research published over the past 19 years in relation to the
detentions in Guantánamo, as well as on the CIA detention programme operated from 2002 to 2009. It builds
on this significant body of work through extensive desk research using information from open sources,
including relevant national law and international human rights standards, court judgments, defence and
government briefs filed in federal court and military commissions, civil society organization reports, and
domestic and international news media. Over the years, Amnesty International observers have attended
military commission hearings at Guantánamo. On 18 December 2020, Amnesty International wrote to the US
Department of Justice and the US Department of Defense setting out the findings in this report. At the time of
publication, no response had been received.
As the 20th anniversary of the 11 September 2001 (9/11) attacks in the USA approaches, the haunting
memories of that day will remain as strong as ever for many. In addition to the nearly 3,000 people killed in
this crime against humanity, many thousands of responders and survivors are still suffering long-term health
effects, both physical and mental.8
From the outset, President George W. Bush promised justice.9 As time went on, however, it became clear that
whatever he had in mind when using that word, the USA’s response to the 9/11 attacks involved widespread
human rights violations in what it called the “global war on terror”. 10 These included the crimes under
international law of torture and enforced disappearance authorized at high levels of government. Commonly
understood tenets of justice – humane treatment of those deprived of their liberty, detainee access to legal
representation, and full and fair trials within a reasonable time in independent and impartial courts for those
accused of internationally recognizable criminal offences – fell by the wayside as the pursuit of intelligence
and a global war paradigm were used to justify secret detention, incommunicado interrogations, and prolonged
7 Remarks by Vice President Biden at 45th Munich Conference on Security Policy, 7 February 2009.
8 World Trade Center Health Program, Statement by Dr John Howard,
https://www.cdc.gov/wtc/administrator_20200911.html; also, Covered Conditions, https://www.cdc.gov/wtc/conditions.html
9
“I’ve directed the full resources of our intelligence and law enforcement communities to find those responsible and to
bring them to justice”. Address to the Nation on the Terrorist Attacks, 11 September 2001; “Whether we bring our
enemies to justice or bring justice to our enemies, justice will be done.” Address before Joint Session of Congress, 20
September 2001.
10 See also A reflection on justice, 16 May 2011, https://www.amnesty.org/en/documents/AMR51/038/2011/en/ On the
USA’s “war” paradigm, see ‘A familiar path to torture’, Human Dignity Denied: Torture and accountability in the ‘war on
terror’, Section 1, October 2004, www.amnesty.org/en/documents/amr51/145/2004/en
11
Donald Rumsfeld, Known and Unknown; a memoir. Sentinel (2011), page 567.
“The time has come for the President and Congress to give
serious consideration to a different approach for the
handling of the Guantánamo detainee cases”
US Circuit Judge, June 201312
On the afternoon of 11 September 2001, President Bush opened a video teleconference with his principal
advisors with the words “we’re at war”, and in a national address that evening he pointed to the global nature
of this “war against terrorism”.13 A memorandum to CIA staff from the agency’s Director five days later was
titled “We’re at war” and instructed that “all the rules have changed”; this war would be “worldwide” in nature,
and not just targeted at al Qaeda.14 A presidential memorandum asserted that “the war against terrorism
ushers in a new paradigm” which “requires new thinking in the law of war”.15
Many politicians turn to war metaphors when confronting big challenges. In addition to the multiplicity of war
analogies that have been heard during the COVID-19 pandemic, for example, “think the war on poverty, on
cancer, on illegal immigration, not to mention the war on drugs or on crime”.16 The “global war on terror”,
however, has been far from a rhetorical device.
Yemeni national Moath al Alwi had already been held without charge at Guantánamo for four years when, in
2006, the UN Committee against Torture, the expert body established under the Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) to monitor its implementation, told
the USA that “detaining persons indefinitely without charge constitutes per se a violation of the Convention”.17
The USA rejected this, stating it was “in an armed conflict with al-Qaida, the Taliban, and their supporters”,
during which it “captures and detains enemy combatants, and is entitled under the law of war to hold them
until the end of hostilities. The law of war, and not the Convention, provides the applicable legal framework
12 Hussain v. Obama, US Court of Appeals for the DC Circuit, 18 June 2013, Judge Edwards concurring.
13
Final Report of the National Commission on Terrorist Attacks Upon the United States, August 2004, Ch.10; and
Address to the Nation on the Terrorist Attacks, 11 September 2001.
14 Memorandum from Director of Central Intelligence, We’re at War, 16 September 2001.
15 Humane treatment of al Qaeda and Taliban detainees, 7 February 2002.
16 Constanza Musu, War metaphors used for COVID-19 are compelling but also dangerous, April 2020,
https://theconversation.com/war-metaphors-used-for-covid-19-are-compelling-but-also-dangerous-135406
17
UN Doc. CAT/C/USA/CO/2. Conclusions and recommendations on the USA, 25 July 2006, para. 22.
18 UN Doc. CAT/C/USA/CO/2/Add.1, 6 November 2007. Comments by the Government of the USA to the conclusions and
recommendations of the Committee against Torture, para. 11.
19 UN Doc. CCPR/C/USA/CO/3/Rev.1/Add.1, 12 February 2008, Comments by the Government of the USA on the
concluding observations of the Human Rights Committee, para. 14 response. See UN Doc.: CCPR/C/21/Rev.1/Add. 13,
26 May 2004, Human Rights Committee, General Comment 31, The Nature of the General Legal Obligation Imposed on
States Parties to the Covenant. “States Parties are required by article 2, paragraph 1, to respect and to ensure the
Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means
that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective
control of that State Party, even if not situated within the territory of the State Party.”
20
IACHR, UN Working Group on Arbitrary Detention, UN Rapporteur on Torture, UN Rapporteur on Human Rights and
Counter-Terrorism, and UN Rapporteur on Health reiterate need to end the indefinite detention of individuals at
Guantánamo Naval Base in light of current human rights crisis, 3 May 2013,
http://www.oas.org/en/iachr/media_center/PReleases/2013/029.asp
21 Al-Alwi v. Trump, Memorandum opinion, US District Court for the District of Columbia (DC), 21 February 2017.
22
Al-Alwi v. Trump, US Court of Appeals for the DC Circuit, 7 August 2018.
23 Al-Alwi v. Trump, Memorandum opinion, US District Court for DC, 21 February 2017.
24 On the day Moath al Alwi arrived at Guantánamo, President Bush met with Turkey’s Prime Minister thanking him for his
“support in the war against terror”. An 8 June 2006 US diplomatic cable later revealed that such support included
allowing the USA “to use Incirlik [air force base] as a refueling stop for Operation FUNDAMENTAL JUSTICE detainee
movement operations since 2002”, including to Guantánamo, www.theguardian.com/world/us-embassy-cables-
documents/67175. Agents of some governments took part in abusive interrogations at Guantánamo, reportedly including
agents of China and Libya. See USA: Guantánamo and beyond: The continuing pursuit of unchecked executive power,
May 2005, www.amnesty.org/en/library/info/AMR51/063/2005/en, page 23.
25
See Boumediene v. Bush, US Supreme Court, 12 June 2008 (“Some of these individuals were apprehended on the
battlefield in Afghanistan, others in places as far away from there as Bosnia and Gambia. All are foreign nationals, but
none is a citizen of a nation now at war with the United States”).
26 Abdah v. Obama, Unclassified memorandum opinion, US District Court for DC, 21 April 2010.
27 Ibid.
28
Ibid. The judge found that the torture allegations were credible, and that the government did not rebut them.
into custody in Pakistan in 2002, subjected to rendition to Morocco where he was held for 18 months, transferred to the
CIA-operated secret “Dark Prison” in Afghanistan, before being transferred to Bagram and then to Guantánamo. Noting
that the US government did not challenge his allegations of torture, which bore “several indicia of reliability”, a US judge
wrote: “[E]ven though the identity of the individual interrogators changed (from nameless Pakistanis, to Moroccans, to
Americans), there is no question that throughout his ordeal Binyam Mohamed was being held at the behest of the United
States”. Farhi Saeed bin Mohammed v. Obama, Memorandum opinion, US District Court for DC, 19 November 2009.
Binyam Mohammed was released from Guantánamo in 2009.
32 Abu Zubaydah v Lithuania, European Court of Human Rights, (Application no. 46454/11), 8 October 2018; and Al
Program. Declassified Executive Summary and Findings and Conclusions. [Hereinafter SSCI Summary], pages 16-17.
34
USA v. Ghailani, Opinion, US District Court for the Southern District of New York, 12 July 2010.
35
Letter to John A. Rizzo, Acting General Counsel, Central Intelligence Agency, from Steven G. Bradbury, Acting Assistant
Attorney General, Office of Legal Counsel, US Department of Justice, 31 August 2006.
36 USA v. Ghailani, Opinion, US District Court for the Southern District of New York, 12 July 2010.
37 But took the position that “this is not the time or place to pass judgment on whether those techniques, in and of
themselves, were appropriate or legal”. USA v. Ghailani, Opinion, US District Court for the Southern District of New York,
12 July 2010.
38 Legality of the use of military commissions to try terrorists. Memorandum opinion for the Counsel to the President.
Patrick Philbin, Deputy Assistant Attorney General, Office of Legal Counsel, US Department of Justice, 6 November 2001.
39 “[O]ur values as a Nation…call for us to treat detainees humanely, including those who are not legally entitled to such
[that no detainees would qualify as prisoners of war, and Article 3 Common to the Geneva Conventions would not apply
either], I also decided to create a legal system to determine the guilt or innocence of detainees… On November 13, 2001,
I signed an executive order establishing military tribunals to try captured terrorists”). Also, Donald Rumsfeld, Known and
Unknown; a memoir. Sentinel (2011), page 588 (“the President announced that trials for terrorist detainees would be held
by specially designed military commissions – not ordinary civilian courts and not military tribunals under the Uniform Code
of Military Justice. Terrorists were enemies in wartime, no longer domestic criminals”).
41 Possible habeas jurisdiction over aliens held in Guantánamo Bay, Cuba. Memorandum for William J. Haynes, II, General
Counsel, Department of Defense, from Patrick F. Philbin, Deputy Assistant Attorney General, and John C. Yoo, Deputy
Assistant Attorney General, Office of Legal Counsel, US Department of Justice, 28 December 2001. Among other locations
discussed were Alcatraz Island; the US army facility at Fort Leavenworth, Kansas; US island military bases in the Pacific
and Indian Oceans and a ship permanently stationed in the Arabian Sea. Donald Rumsfeld, Known and unknown (2011),
page 566.
42 Jack Goldsmith (Assistant Attorney General, Office of Legal Counsel, US Department of Justice 2003-2004), The Terror
Presidency: Law and Judgment inside the Bush administration, W.W. Norton (2007), page 108.
43 SSCI Summary, page 151.
44
SSCI Summary, page 128.
Mohammad. These four are among the 40 detainees still held at the base today.
16 February 2018.
54 The standard for “detention authorized by the Congress under the AUMF” is that “it is necessary to protect against a
significant threat to the security of the United States”, Executive Order 13567, Periodic Review of Individuals Detained at
Guantánamo Bay Naval Station Pursuant to the Authorization for Use of Military Force, 7 March 2011.
55
On 29 October 2020, the PRB determined that “continued law of war detention is no longer necessary” for Yemeni
national Said Salih Said Nashir.
56 Ahmed al Darbi was the only detainee who left the base during the Trump term. He had pled guilty in 2014. The US
and Saudi governments had agreed to support his transfer if he complied with the plea deal. Sentencing was delayed for
three and a half years while he cooperated with the authorities. He was transferred to Saudi Arabia in early March 2018.
57
Ali v. Trump, US Court of Appeals for the DC Circuit, 15 May 2020 (“Ali has little ground to stand on in claiming that
time has dissipated the threat he poses”. The PRB had “reviewed Ali’s detention no less than eight times... And each time
the Periodic Review Board has recommended continued detention because of the threat his release would pose”).
58 Ibid., Senior Circuit Judge Randolph concurring in the judgment (“The executive branch has, since at least 2009,
articulated the procedures to be used for the review and disposition of Guantánamo detainees. These Executive Orders
appear to recognize that the Fifth Amendment does not apply to the non-resident aliens held at the naval station. See,
e.g., Exec. Order 13567, 76 Fed. Reg. 13277 (establishing, “as a discretionary matter, a process to review on a periodic
basis the executive branch’s continued, discretionary exercise of existing detention authority in individual cases”)
(emphasis added)).
59 The two who had been cleared for transfer by the PRB in 2016 but were still in Guantánamo in December 2020 were
Moroccan national Abdul Latif Nasir and Algerian national Sufiyan Barhoumi who were brought to Guantánamo in May
and June 2002 respectively. In the case of the former, the Trump administration said that the Moroccan authorities
“responded affirmatively” on 28 December 2016 to the USA’s request for the necessary security assurances for any
transfer. Because this was less than 30 days before Secretary Carter would leave office at the end of the Trump
administration, he did not make a decision (pursuant to statutory requirements under the NDAA), and “elected to leave
that decision to his successor. To date, no decision has been made as to whether to proceed with this transfer”. That was
nearly three years ago. Al Bihani et al v. Trump et al, Respondents’ opposition to petitioners’ motion for order granting writ
of habeas corpus, 16 February 2018.
60 JTF-GTMO Detainee Assessment, 10 November 2008.
61
Details of arrest and transfer taken from Al Bihani v. Obama, Memorandum Opinion, US District Court for DC, 7 October
2010 and JTF-GTMO Detainee Assessment, 15 February 2008.
62 The JTF-GTMO Detainee Assessment asserts that Toffiq al Bihani “remained in Afghan custody until he was transferred
to US custody” at Bagram air base in “approximately mid-December 2002”. However, according to the SSCI Summary, he
was in custody at a CIA run facility (dubbed “Cobalt” in the SSCI summary) for the two months prior to his transfer to
Bagram.
63
SSCI Summary, page 49.
64
SSCI Summary, page 4.
65
Al Bihani v. Trump, Motion for order granting writ of habeas corpus. In the US District Court for DC, 18 January 2018.
66 Al Bihani v. Trump, Respondents’ opposition to petitioners’ motion for order granting writ of habeas corpus, 16 February
2018.
67 Ibid.
68 Ibid.
69
Ibid.
70 Al Bihani v. Trump, Petitioners’ response to notice of supplemental authority, In the US District Court for DC, 13 August
2018.
71 Ali v. Obama, US Court of Appeals for the DC Circuit, 3 December 2013.
72 Al Hela v. Trump, US Court of Appeals for the DC Circuit, 28 August 2020.
73 The AUMF was passed by 516 votes to 1 after little more than a series of patriotic statements and religious references
by legislators, still absorbing the reality of the attacks three days earlier. The one legislator who voted against the AUMF,
Representative Barbara Lee has continued to oppose it. See, 15 years of endless war – No end in sight, Congresswoman
Barbara Lee, 14 September 2016 https://lee.house.gov/news/press-releases/15-years-of-endless-war_no-end-in-sight.
Amnesty International first called for revocation of the AUMF in 2006.
74 Al-Bihani v. Obama, US Court of Appeals for the DC Circuit, 5 January 2010.
75 Al-Bihani v. Obama, US Court of Appeals for the DC Circuit, 5 January 2010.
76 National Defense Authorization Act (NDAA) for Fiscal Year 2012.
77 Remarks by the President at the National Defense University, 23 May 2013, https://obamawhitehouse.archives.gov/the-
press-office/2013/05/23/remarks-president-national-defense-university
Century Dictionary, Revised Edition 1999. “Not knowing when they might depart Guantánamo (for home or elsewhere)
has almost certainly increased tension and anxiety with the detainee population”. US Department of Defense, Review of
Department compliance with President’s Executive Order on Detainee Conditions of Confinement (2009).
81
Al Hela v. Trump, US Court of Appeals for the DC Circuit, 28 August 2020.
82 UN Doc. CCPR/C/USA/CO/4/Add.1, 28 November 2017. Concluding observations on the fourth periodic report of the
United States of America, addendum. Information received from the United States of America on follow-up to the
concluding observations, para. 27.
83 Paracha v. Trump, Memorandum opinion, US District Court for DC, 23 January 2020.
84
Paracha v. Trump, Memorandum opinion, US District Court for DC, 23 January 2020.
Between 2002 and 2008, the Court of Appeals for the DC Circuit was wrong on three key decisions relating to
the Guantánamo detainees and their access to the courts and to constitutional protections, according to the
US Supreme Court as it overturned each ruling.86 The positions of the Court of Appeals had been as follows:
• 2003, Rasul v. Bush: “If the Constitution does not entitle the detainees to due process, and it does
not, they cannot invoke the jurisdiction of our courts to test the constitutionality or the legality of
restraints on their liberty”.
• 2005, Hamdan v. Rumsfeld: Congress authorized the military commission process set up under
presidential order, by passing the AUMF; the Geneva Conventions did not confer any rights upon the
charged detainee that he could enforce in court, and Common Article 3 did not apply.
• 2007, Boumediene v. Bush. The MCA constitutionally deprived the courts of jurisdiction to consider
habeas corpus petitions from Guantánamo detainees. To accept the contrary “would be to defy the
will of Congress”. The repeal “applied to ‘all cases, without exception’ relating to any aspect of
detention. It is almost as if the proponents of those words were slamming their fists on the table
shouting, ‘When we say ‘all’, we mean all – without exception!’” [emphasis in original].
The US Supreme Court’s Boumediene ruling – that the MCA was an unconstitutional suspension of habeas
corpus and the Guantánamo detainees could challenge the legality of their detentions – left it to the District
Court in the first instance to resolve the various questions and procedures regarding this legality, meaning the
Court of Appeals for the DC Circuit would be the final arbiter for the detainees in the absence of Supreme
Court intervention. The Supreme Court has not intervened since 2008.
In July 2010, a three-judge panel of the Court of Appeals issued an opinion (authored by the judge who had
written its 2003 Rasul, 2005 Hamdan and 2007 Boumediene rulings) that appeared to shift the habeas
85Qassim v. Trump, US Court of Appeals for the DC Circuit, 14 August 2018, Judge Tatel concurring.
86The reversals were Rasul: 6-3; Hamdan: 5-3 (Chief Justice Roberts did not take part, as he had been on the panel of
the DC Circuit in its 2005 ruling); Boumediene: 5-4.
87
Al-Adahi v. Obama, Memorandum opinion, US District Court for DC, 17 August 2009.
88 Ibid.
89 Ibid. (“Even using the Government’s theoretical model of a mosaic, it must be acknowledged that the mosaic theory is
only as persuasive as the tiles which compose it and the glue which binds them together”).
90 Al-Adahi v. Obama, Memorandum opinion, US District Court for DC, 17 August 2009. Mohammed al-Adahi was
Associate Counsel to President Bush. From 2003 to 2006, he was Assistant to the President and Staff Secretary for
President Bush.
94 Al Hela v. Trump, US Court of Appeals for the DC Circuit, 28 August 2020.
95 Mohammed Uthman remains in Guantánamo. Aged 21 when transported to the base, he is now 40.
96 Uthman v. Trump, Memorandum opinion, US District Court for DC, 28 August 2020.
97 Ali v. Obama, Classified memorandum opinion, US District Court for DC, 28 February 2011.
98
Ali v. Obama, US Court of Appeals for the DC Circuit, 3 December 2013, Judge Edwards, concurring in the judgment.
judgment.
102 Al Hela v. Trump, US Court of Appeals for the DC Circuit, 28 August 2020.
103
Boumediene v. Bush, US Supreme Court, 12 June 2008.
104
Boumediene v. Bush, 12 June 2008. Also, “Guantánamo Bay is in every practical respect a United States territory…
What matters is the unchallenged and indefinite control that the United States has long exercised over Guantánamo Bay”,
(Rasul v. Bush, 2004, Justice Kennedy concurring in the judgment).
105 Mathews v. Diaz, 426 U.S. 67 (1976).
106 Al Hela v. Trump, US Court of Appeals for the DC Circuit, 28 August 2020.
107
Ibid.
108
Ibid.
109 Ibid.
110 Al Hela v. Trump, Brief of Amicus Curiae, The Center for Constitutional Rights in support of petition for rehearing en
banc. In the US Court of Appeals for the DC Circuit, 27 October 2020, Citing Morrissey v. Brewer, US Supreme Court
(1972). CCR currently represents six detainees still held at Guantánamo.
111 See inter alia article 14 of the International Covenant on Civil and Political Rights to which the US is a party.
112 Ali v. Trump, US Court of Appeals for the DC Circuit, 15 May 2020, note 4.
113 Ibid.
114
See USA: Who are the Guantánamo detainees? Case Sheet No. 15: Yemeni national: Abdulsalam al-Hela, 11 January
2006, http://www.amnesty.org/en/library/info/AMR51/012/2006/en This report also includes the following "Adulsalam al-
Hela finds it difficult to talk about his time in Bagram. He told his lawyer that his 'wounds are too many' and that he
'doesn’t want to reopen them'. He simply stated that the conditions were 'very, very bad'."
115 SSCI Summary, IX. Appendix 2. This timing would indicate that for around 100 days of his custody prior to being
transferred to Guantánamo, the Committee considered that he was not in CIA custody, even if he was being held at the
USA’s behest (in Bagram, he was presumably in US military custody).
Eight months after the Guantánamo detentions began, the assistant commander of the US Army Intelligence
Center described the detention facility as “America’s Battle Lab” in the global “war on terror” and
recommended the creation of an environment there that would be “conducive to extracting information by
exploiting the detainees’ vulnerabilities”.117 Among the detainees targeted for this treatment was Mohammed
116Al-Qahtani v. Trump, Memorandum Opinion and Order, US District Court for DC, 12 August 2020.
117Colonel John Custer CJCS external review of Guantánamo Bay Intelligence Operations, cited in Inquiry into the
treatment of detainees in US custody. Report of the Committee on Armed Services, US Senate, 20 November 2008, pages
42-3.
118
USA: Where is the accountability? Health concern as charges against Mohamed al-Qahtani dismissed, 19 May 2008,
www.amnesty.org/en/library/info/AMR51/042/2008/en
119 Detainee tortured, says US official. Washington Post, 14 January 2009. See also Al-Qahtani v. Trump, Memorandum
Opinion and Order, US District Court for DC, 12 August 2020 (“Susan Crawford, the then-convening authority of the
Department of Defense Military Commissions, determined in 2009 that Mr al-Qahtani can never be tried by a military
commission due to the torture he endured at the beginning of his detention”).
120 Torture acknowledged, question of accountability remains, 14 January 2009,
August 2017.
Medical Group (JMG). Mr al-Qahtani’s chronic symptoms of PTSD are the result of his confinement and the torture he
suffered during interrogations at Guantánamo. Detention and medical personnel were involved in his confinement and
interrogations. It is not realistic to believe that Mr al-Qahtani would be able to benefit from treatment provided by clinicians
whom he associates with the cause of his suffering.” Supplemental Declaration of Emily A. Keram, MD, regarding
Mohammed al-Qahtani, 12 July 2016.
128
Al-Qahtani v. Trump, Memorandum opinion, US District Court for DC, 6 March 2020.
129
Under AR 190-8, “The United States will carry out the decisions of the Mixed Medical Commission as soon as possible
and within 3 months of the time after it receives due notice of the decisions”.
130 Al-Qahtani v. Trump, Memorandum opinion, US District Court for DC, 6 March 2020.
131 Ibid.
132 Al-Qahtani v Trump, Initial public redacted brief for respondents-appellants, In the US Court of Appeals for the DC
On 6 September 2006, asking Congress to ensure “speedy passage” of his administration’s draft Military
Commissions Act so that detainees just transferred to Guantánamo from years of secret CIA custody could be
prosecuted before military commissions, President Bush said:
“Five years after the mass murders of 9/ 11 it is time for the United States to begin to prosecute
captured al Qaeda members for the serious crimes that many of them have committed against United
States citizens and our allies abroad. As we provide terrorists the justice and due process that they
denied their victims, we demonstrate that our Nation remains committed to the rule of law”.134
Five years will soon be 20. The “justice” that President Bush said the families of those killed on 11 September
2001 “should have to wait no longer” for is nowhere to be seen,135 and the notion of trial within a reasonable
time at Guantánamo is holed below the waterline. The right under international law of an accused person to
be tried without undue delay “is not only designed to avoid keeping persons too long in a state of uncertainty
about their fate” but “also to serve the interests of justice”.136 The uncertainty and injustice that infected the
Guantánamo detention regime from the outset has riddled the system of prosecutions there too.
A fully functioning civilian judicial system, with the experience and procedures to deal with complex terrorism-
related prosecutions, was available from day one. The government turned its back on that system, in favour of
torture, enforced disappearance, and indefinite detentions. While a primary aim of locating a detention facility
133 Ghailani v. USA, Opinion, US District Court for the Southern District of New York, 12 July 2010.
134 Message to the Congress transmitting draft legislation on military commissions, 6 September 2006.
135 Remarks on the War on Terror, White House, 6 September 2006.
136 UN Doc.: CCPR/C/GC/32, 23 August 2007, UN Human Rights Committee, General Comment No. 32, Article 14: Right
to equality before courts and tribunals and to a fair trial, para. 35.
137 Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 13 November 2001.
138 See Donald Rumsfeld, Known and Unknown: a memoir. Sentinel (2011), page 588, recalling that President Roosevelt
wrote to his Attorney General before the trial: “surely [the eight] are as guilty as it is possible to be and it seems to me that
the death penalty is almost obligatory”. See also Louis Fisher, Military Tribunals and Presidential Power. University Press
of Kansas (2005), p. 125 (“In civilian court, the maximum penalty would have been about three years. Roosevelt was
determined to have the Germans put to death”).
139 President Roosevelt commuted the death sentences of the other two because of their cooperation.
140 Senior administration officials defend military tribunals for terrorist suspects, The New York Times, 15 November 2001.
See also Military justice for al Qaeda. By William Barr and Andrew G. McBride. The Washington Post, 18 November 2001.
William Barr was Attorney General (1991-1993) under President George H.W. Bush. When the Senate confirmed his
nomination by President Trump in 2019, he became only the second person in US history to serve twice as Attorney
General. In a letter to President Trump on 14 December 2020 the Attorney General said that his last day in office would
be 23 December 2020. An aspect of this second term as Attorney General was that in the last six months of 2020 the US
government carried out 10 executions. The three other federal executions in the post-1972 era of the death penalty in the
USA took place under President George W. Bush, who came to office having overseen a record number of executions in
Texas when governor there.
141
Legality of the use of military commissions to try terrorists, OLC, US Department of Justice, 6 November 2001.
142
Senior administration officials defend military tribunals for terrorist suspects, The New York Times, 15 November 2001.
143 Hamdan v. Rumsfeld, 29 June 2006.
144 Hamdan v. Rumsfeld, 29 June 2006, Justices Breyer, Kennedy, Souter and Ginsburg, concurring.
145 Remarks on signing the Military Commissions Act of 2006, 17 October 2006.
146 Bin Lep v. Trump, Respondents’ opposition to petitioner’s motion for preliminary injunction, In the US District Court for
147 USA v. Khan, Defense motion for pretrial punishment credit and other related relief, 1 May 2019.
148 Remarks by the President on plan to close the prison at Guantánamo Bay, 23 February 2016.
https://obamawhitehouse.archives.gov/the-press-office/2016/02/23/remarks-president-plan-close-prison-guantanamo-bay
149 See Case of Cabrera Garcia and Montiel Flores v. Mexico, Inter-American Court of Human Rights, Judgment of 26
opinion, US District Court for DC, 19 November 2009 (“Torture and ‘enhanced interrogation techniques’ employed by the
Government during the War on Terror have been shown to be ‘geared toward creating anxiety or fear in the detainee while
at the same time removing any form of control from the person to create a state of total helplessness’… From [the
detainee’s] perspective, there was no legitimate reason to think that transfer to Guantánamo Bay foretold more humane
treatment; it was, after all, the third time that he had been forced onto a plane and shuttled to a foreign country where he
would be held under United States authority. Further, throughout his detention, a constant barrage of physical and
psychological abuse was employed in order to manipulate him and program him into telling investigators what they wanted
to hear”).
152 UN Doc. A/HRC/WGAD/2017/89, 24 January 2018, Opinions adopted by the Working Group on Arbitrary Detention at
its 80th session, 20–24 November 2017, Opinion No. 89/2017 concerning Ammar al Baluchi (USA), Annex, paras. 9-11.
153
See In re: Ammar al Baluchi, US Court of Appeals for the DC Circuit, 13 March 2020 ("In defending against the capital
charges, al Baluchi contends that his torture renders certain incriminating statements key to the government’s case
inadmissible. According to al Baluchi, in order to make that defense, he needs evidence from one particular detention
center, so-called 'Site A,' which the government plans to 'decommission' -- i.e., destroy -- in the near future. He therefore
seeks a writ of mandamus, asking us to prevent the government from proceeding with the site’s destruction. The
government, however, has produced digital and photographic representations of Site A and al Baluchi cannot show, as he
must, that it is clear and indisputable that those representations are so insufficient as to warrant the extraordinary remedy
of mandamus").
154
UN Doc. CCPR/C/USA/CO/4, 23 April 2014, Concluding observations on the fourth periodic report of the United States
of America, para. 21.
155 UN Doc.: CCPR/C/21/Rev.1/Add.13 (2004), General Comment No. 31, The nature of the general legal obligations
imposed on state parties to the Covenant, para. 11. (“the Covenant applies also in situations of armed conflict to which the
rules of international humanitarian law are applicable. While, in respect of certain Covenant rights, more specific rules of
international humanitarian law may be specially relevant for the purposes of the interpretation of Covenant rights, both
spheres of law are complementary, not mutually exclusive”).
156 UN Doc.: CCPR/C/GC/32, 23 August 2007, UN Human Rights Committee, General Comment No. 32, Article 14: Right
to equality before courts and tribunals and to a fair trial, paras 1 and 6.
157 Ibid, para 22.
158 Ibid, para 22.
159
See, George W. Bush, Decision Points, Virgin Books (2010), page 167. (“As I made my decision on Geneva protection
[that no detainees would qualify as prisoners of war, and Article 3 Common to the Geneva Conventions would not apply
either], I also decided to create a legal system to determine the guilt or innocence of detainees… On November 13, 2001,
I signed an executive order establishing military tribunals to try captured terrorists”). Also, Donald Rumsfeld, Known and
Unknown; a memoir. Sentinel (2011), page 588 (“the President announced that trials for terrorist detainees would be held
by specially designed military commissions – not ordinary civilian courts and not military tribunals under the Uniform Code
of Military Justice. Terrorists were enemies in wartime, no longer domestic criminals”).
pretrial confinement for purposes of sentencing and the military judge shall not grant credit for pretrial detention.”
167 Bin Lep v. Trump, Respondents’ opposition to petitioner’s motion for preliminary injunction, In the US District Court for
DC, 30 October 2020.
168 Jeh Johnson, General Counsel, US Department of Defense. Legal issues regarding military commissions and the trial of
detainees for violations of the law of war. Hearing before the Committee on Armed Services, 7 July 2009.
169 USA v. Ghailani, Opinion. US District Court for the Southern District of New York, 13 July 2010.
170 National Security Division’s Chart of public/unsealed international terrorism and terrorism-related convictions from
discrimination against non-citizens, paras. 1 and 2. See also para 10, on the obligation on States parties to “ensure that
any measures taken in the fight against terrorism do not discriminate, in purpose or effect, including on the grounds of
national origin”. CERD is the body established under the Convention on the Elimination of All Forms of Racial
Discrimination to monitor its implementation. The USA ratified the Convention in 1994.
172 Executive Order 13780: Protecting the National from Foreign Terrorist Entry into the United States. Initial Section 11
175 Al Bahlul v. USA, US Court of Appeals for the DC Circuit, 14 July 2014, opinion concurring in the judgment in part and
dissenting in part filed by Circuit Judge Kavanaugh.
176 In Re: Abd al-Rahim Hussein Muhammed al-Nashiri, US Court of Appeals for the DC Circuit, 30 August 2016.
177 Remarks in Shreveport, Louisiana, 3 December 2002.
178
SSCI Summary, footnote 338.
dissenting.
184 In re: Al-Nashiri, US Court of Appeals for the DC Circuit, 30 August 2016.
185 In re: Al Nashiri, Brief of the United States in opposition, In the Court of Appeals for the DC Circuit, 13 November
2018.
186 USA v. Al-Nashiri, Ruling on Defense Motion to abate proceedings pending the detailing of Learned Counsel, 27
October 2017.
187
Unofficial/Unauthenticated transcript of proceedings, 31 October 2017.
188 Unofficial/Unauthenticated transcript of proceedings, 1 November 2017.
189 “Judge Spath acted unlawfully when he unilaterally convicted General Baker of criminal contempt and sentenced him
for that contempt. He usurped a power that belongs solely to the members of the commission, voting as a body”. Baker v.
Spath, Memorandum Opinion, US District Court for DC, 18 June 2018.
190
Unofficial/Unauthenticated transcript of proceedings, 16 February 2017.
191In Re: Abd al-Nashiri, US Court of Appeals for the DC Circuit, 16 April 2019. ("[W]e cannot escape the conclusion that
the average, informed observer would consider Spath to have presided over a case in which his potential employer
appeared… In sum, the Attorney General was a participant in Al-Nashiri's case from start to finish: he has consulted on
commission trial procedures, he has loaned out one of his lawyers, and he will play a role in defending any conviction on
appeal… The fact of Spath's employment application alone would thus be enough to require his disqualification. But
Spath did yet more to undermine his apparent neutrality").
192 In Re: Abd al-Nashiri, US Court of Appeals for the DC Circuit, 16 April 2019.
193 Recusal from US v. Abd Al Hadi Al-Iraqi. Memorandum for Chief Trial Judge, Military Commissions, 15 January 2020.
194 See UN Basic Principles on the Independence of the Judiciary (1985), paras. 11-14.
195 “While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those
who are held in custody”. Boumediene v. Bush, US Supreme Court, 12 June 2008.
196
UN Doc.: CCPR/C/GC/32, 23 August 2007, UN Human Rights Committee, General Comment No. 32, Article 14: Right
to equality before courts and tribunals and to a fair trial, para. 35 (right of the accused to be tried without undue delay “is
not only designed to avoid keeping persons too long in a state of uncertainty about their fate” but “also to serve the
interests of justice”).
197 UN Doc. CCPR/C/GC/36, Human Rights Committee, General Comment No. 36, Right to Life: Article 6. 3 September
198 Departments of Justice and Defense announce forum decisions for ten Guantánamo detainees. Office of Public Affairs,
US Department of Justice, 13 November 2009.
199
UN Doc. CCPR/C/GC/36, Human Rights Committee, General Comment No. 36, Right to Life: Article 6. 3 September
2019, para. 45.
200 While the MCA incorporates Article III judicial review of military commission convictions, this does not fix the
competence problem of the military commissions themselves. Moreover, it does nothing to remedy violations of the right to
trial without undue delay. “Crucially, while the scheme Congress created in the MCA incorporates Article III review, it also
delays it until a specific point. Before an Article III court may step in, a defendant must be tried and convicted in the
military system, the convening authority must have approved the conviction, and the defendant must appeal the
conviction to the CMCR or affirmatively waive his right to do so.” In re: Abd al-Rahim Hussein Muhammed al-Nashiri, US
Court of Appeals for the DC Circuit, 30 August 2016.
201
UN Doc. CCPR/C/GC/36, Human Rights Committee, General Comment No. 36, Right to Life: Article 6. 3 September
2019, para. 45.
202 Ibid., para. 44. (Also para. 61, “Any deprivation of life based on discrimination in law or in fact is ipso facto arbitrary in
nature”).
203 Ibid., para. 41.
204
Ibid.
205
On 10 April 2020, the US Court of Appeals for the DC Circuit ruled that it was “neither clear nor indisputable that
Colonel Parella should have recused himself”, and the Court declined to vacate Parella’s orders.
206 Memorandum for Chief Trial Judge, Military Commissions. Subject: USA v. Khalid Shaikh Mohammad et al. 17 March
2020.
207 USA v. Khalid Shaikh Mohammad et al. Ruling; Recusal of Military Judge, 2 October 2020.
208 USA v. Khalid Shaikh Mohammad et al. Government notice of position on the qualifications of Lieutenant Colonel
himself as military judge due to disqualification for non-compliance with manner of detailing specified lawful by regulation,
9 December 2020. On 18 December, a defence motion to stay his removal and to abate proceedings until the matter was
resolved. At the time of writing neither of these motions had been declassified.
210
USA v. Khalid Shaikh Mohammad et al., Ruling, 15 December 2020.
211
See also In Re: Omar Khadr, US Court of Appeals for the DC Circuit, 20 May 2016 (“[W]e cannot deny that Khadr has
raised some significant questions. We encourage Congress and the Executive Branch to promptly attend to those issues
and to make clear, one way or the other, whether the civilians who serve as judges on the US Court of Military Commission
Review may continue to engage in the part-time practice of law and, if so, the circumstances under which they may do
so”).
212
Remarks on the War on Terror, 6 September 2006.
213 See, for example, Obama on terror trials: KSM will die, Politico, 18 November 2009.
214
Bin Lep v. Trump, Memorandum Opinion, US District Court for DC, 14 December 2020.
215
ICRC report on the treatment of fourteen ‘high value detainees’ in CIA custody, February 2017.
216 SSCI Summary, n. 628. Also, ICRC report on the treatment of 14 ‘high value detainees’ in CIA custody, February 2007.
217 Bin Lep v. Trump, Petition for a Writ of Habeas Corpus, In the US District Court for DC, 5 November 2020.
218 The Office of the CA is "responsible for the overall management of the military commissions process, including logistics
and personnel support. The Convening Authority is empowered to convene military commissions, refer charges to trial,
negotiate pre-trial agreements, and review records of trial. " Office of Military Commissions, Organization Overview.
The habeas corpus petition alleges that one of Bin Lep’s lawyers has information suggesting that the
government has “intentionally delayed initiating proceedings” against Bin Lep “as part of a continuing effort
to develop potentially inculpatory evidence against him and his alleged co-conspirators and to conceal
classified evidence from [his] trial counsel that is potentially exculpatory.”222 Because the charges have not
been referred for trial, Bin Lep does not have “discovery” rights under the MCA so “the means by which” the
government has operated have not been disclosed to his trial counsel. Were the latter aware of “the steps [the
government has] taken since the swearing of charges to secure inculpatory evidence” they “could respond
and endeavor to mitigate the potential risks to [Bin Lep’s] rights.” The lawyer “with knowledge of this
information is presently subject to a protective order issued in a military commissions case in which the
disclosure was made” and thus could not disclose the basis of this conclusion to other counsel, or even to Bin
Lep himself, absent an order to do so from the Court.
While Bin Lep has been in US custody, his lawyers argue, exculpatory evidence relating to the charges has
been lost. Numerous “key witnesses” have died, including three by execution in Indonesia in 2008. 223 Three
others were killed in raids by Indonesian police in 2005, 2009 and 2010, and another died of natural causes.
Bin Lep’s lawyers maintain that the sworn charges that are hanging over the detainee are necessarily inhibiting
his willingness to participate openly in the PRB process for fear of saying anything which could be used against
him in a future military commission. Furthermore, “repatriation discussions with the Malaysian government
have effectively stalled, due in large part to the pending sworn charges”.224 It seems that, in any event, the
Chief Prosecutor’s communications to the PRB have disqualified the detainee from the PRB process under its
rules (detainees against whom there are “charges pending” do not receive review).
During the 17 years that Bin Lep has been in custody, “the Government has had access to foreign witnesses
and resources to collect evidence against Mr Bin Lep. Conversely, Mr Bin Lep’s defense team has been left to
219
Unclassified summary of final determination, 15 September 2016.
220 Unclassified declaration of Brigadier General Mark S. Martins, US Army, Chief Prosecutor, 30 October 2020, para. 5.
221 Bin Lep v. Trump, Memorandum opinion & order, US District Court for DC, 23 September 2019.
222 Bin Lep v. Trump, Petition for a writ of habeas corpus, In the US District Court for DC, 5 November 2020.
223 3 executed by firing squad for Bali bombings, New York Times, 8 November 2008.
224
Bin Lep v. Trump, Petition for a writ of habeas corpus, In the US District Court for DC, 5 November 2020.
225
Ibid. Exhibit 2.
226 Ibid. Exhibit 3.
227 Bin Lep v. Trump, Petition for a writ of habeas corpus, In the US District Court for DC, 5 November 2020. Exhibit 15.
228 Bin Lep v. Trump, Memorandum opinion, US District Court for DC, 14 December 2020.
229 USA v. Ghailani, Opinion, US District Court for the Southern District of New York, 12 July 2010.
230
Bin Lep v. Trump, Memorandum opinion, US District Court for DC, 14 December 2020.
Ali al Bahlul is serving a life sentence passed after he was convicted on three charges. The conviction survives
only on one charge, itself under question. The solicitation charge was central to the prosecution’s case, and
solicitation (in the form of his role in producing video propaganda for al Qaeda) was also stressed at sentencing.
Moreover, the life sentence is effectively life without parole because there is no parole system. The only review
system is the PRB, but the PRB is categorically barred from reviewing the cases of those “against whom
charges are pending or a judgment of conviction has been entered”. If the conviction and sentence continue
to be upheld, Ali al Bahlul has effectively been sentenced to die in prison.
231 Ali al-Bahlul v. USA, Brief for Petitioner, In the US Court of Appeals for the DC Circuit, 8 July 2019.
232Al Bahlul v. USA, Brief for the United States, In the US Court of Appeal for the DC Circuit, 13 September 2019.
233 Ibid.
234 Al Bahlul v. USA, Corrected Petitioner’s reply brief, In the US Court of Appeal for the DC Circuit, 15 October 2019.
235
Ibid.
236
Al Bahlul v. USA, US Court of Appeals for the DC Circuit, 4 August 2020.
237 USA v. Khan, Defense motion for pretrial punishment credit and other related relief, 1 May 2019.
238 USA: One-way accountability, 18 July 2012, www.amnesty.org/en/documents/AMR51/063/2012/en/
239 Conspiracy; Murder in Violation of the Law of War; Attempted Murder in Violation of the Law of War; Providing Material
Support for Terrorism (PMST); Spying. Following Al Bahlul v. US (2014), PMST was dismissed.
240
USA v. Khan, Defense motion for pretrial punishment credit and other related relief, 1 May 2019.
peremptory norm of international law”; “The UDHR is an authoritative statement of the international community and
binding CIL [customary international law]”; “International human rights law (IHRL) focuses on a State’s obligation to
protect the inherent dignity and inalienable rights of individual human beings”; “IHRL and the Law of Armed Conflict
(LOAC) are widely viewed as complementary; accordingly, the LOAC does not displace IHRL during armed conflict”; “The
CAT applies to all US activities worldwide, including military operations”. “The prohibition against torture is not only jus
cogens, but it also holds an even higher rank that CIL or treaty law. No international action could ever legitimize the use of
torture. Because CIL has the force of US law, jus cogens norms of fundamental human rights are binding on US forces
during all overseas operations”; “The prohibition does not distinguish between treatment of aliens and citizens and applies
to everyone, everywhere, and at all times, both in peace and in war.” USA v. Khan, Ruling, 4 June 2020.
245
USA v. Khan, Government response to defense motion for pretrial punishment credit, 15 May 2019.
246 USA v. Khan, Ruling on defense motion for pretrial punishment credit and other related relief, 4 June 2020.
247 An evidentiary hearing before the military judge will be held in the first week to address the question of sentencing
credit. The sentencing hearing before the jury of military officers will be held in the second week.
“Prosecutors shall … respect and protect human dignity and uphold human rights, thus contributing to ensuring due process and the
248
smooth functioning of the criminal justice system”. UN Guidelines on the Role of Prosecutors (1990), para. 12.
In 2004, the then classified CIA Inspector General’s review of the secret detention programme recommended
that the CIA conduct a study of the effectiveness of its interrogation techniques. 250 The agency’s Office of
Medical Services raised its concern that this would amount to “human experimentation”. The Inspector
General responded that the idea was not to conduct “additional, guinea pig research on human beings”, but
rather a “careful review” of the CIA’s “experience to date” with the various techniques.251
The 2007 report of the ICRC of its interviews with the 14 detainees transferred in September 2006 to
Guantánamo from secret CIA custody noted that Abu Zubaydah had recalled being told in mid-2002 that he
was “one of the first to receive these interrogation techniques, so no rules applied. It felt like they were
experimenting and trying out techniques to be used later on other people.”252 He said he had been subjected
to all the techniques, which included forced nudity, prolonged sleep deprivation, exposure to cold water and
temperatures, slamming against walls, cramped confinement in a small box, and “water-boarding”, a form of
mock execution by water torture that consists of interrupted drowning.253 The ICRC determined that all 14 had
been subjected to enforced disappearance.254 Thirteen of them are still at Guantánamo and at least 16 others
held there had spent time in the CIA detention program before their transfer to Cuba.
Zayn al Abidin Muhammad Husayn, better known as Abu Zubaydah, has been held without charge in US
custody for almost 19 years. Arrested in Faisalabad, he was handed over by Pakistani personnel to US agents.
On 29 March 2002, President Bush “approved moving forward with the plan to transfer Abu Zubaydah” to a
249 USA v. Khalid Shaikh Mohammad et al, Unofficial/Unauthenticated transcript of proceeding, 21 January 2020. For
further information on Dr Mitchell, see USA: Crimes and impunity: Full Senate Committee report on CIA secret detentions
must be released, and accountability for crimes under international law ensured, April 2015 (hereinafter, USA: Crimes
and impunity), https://www.amnesty.org/en/documents/amr51/1432/2015/en/, page 9.
250
SSCI Summary, page 124.
251
SSCI Summary, page 126.
252 ICRC Report on the treatment of fourteen ‘high value detainees’ in CIA custody. February 2007, op. cit., pages 29-30.
253 Memorandum for the Record. HPSCI Member briefing on interrogations, 13 July 2004, in H-405 Capitol. See also
http://www.nybooks.com/media/doc/2010/04/22/icrc-report.pdf
255
SSCI Summary, page 23.
256 For more information on this section and generally, see USA: Crimes and impunity, op. cit.
257
Field Marshal Wilhelm Keitel was convicted by the Nuremberg Tribunal for his role in implementing Adolf Hitler’s Nacht
und Nebel Erlass (Night and Fog Decree) of 7 December 1941 requiring that persons “‘endangering German security’
who were not to be immediately executed” were to be made to “vanish without a trace into the unknown in Germany”.
Judgment of the International Military Tribunal for the Trial of German Major War Criminals (with the dissenting opinion of
the Soviet Member) - Nuremberg 30th September and 1st October 1946 (Nuremberg Judgment), Cmd. 6964, Misc. No.
12 (London: H.M.S.O. 1946), page 88.
258 ICRC Report on the treatment of fourteen ‘high value detainees’ in CIA custody. February 2007.
259 USA v. Khan, Ruling on Defense motion for pretrial punishment credit and other related relief, 4 June 2020.
260 SSCI Summary, page 29.
261 SSCI Summary, page 30 and footnote 256. A June 2002 cable from Detention Site Green noted that Abu Zubaydah
was “tense” which it said was “likely an anticipatory reaction given his recent unexpected rectal exam” the previous day.
SSCI Summary, page 488.
262
ICRC Report on the treatment of fourteen ‘high value detainees’ in CIA custody. February 2007, pages 29-30.
263 SSCI Summary, page 41.
264 SSCI Summary, page 42.
265 A review of the FBI’s involvement in and observations of detainee interrogations in Guantánamo Bay, Afghanistan, and
Iraq. Office of the Inspector General, US Department of Justice, October 2009 (revised) (hereinafter FBI OIG Report,
October 2009). pages 78-79.
is not held to the same rules as the military”. He advised that while torture was prohibited under the UN Convention
against Torture, US domestic law implementing the treaty was “written vaguely”, with what constitutes physical torture
“explained as poorly” as what constitutes mental torture. Physical torture, he claimed, would be conduct which causes
“severe physical pain causing permanent damage to major organs or body parts” and mental torture would by anything
that caused “permanent, profound damage to the senses or personality”. He noted that the USA “did not sign up to” the
international prohibition of cruel, inhuman or degrading treatment, giving it “more license to use more controversial
techniques”. He said that “if the detainee dies you’re doing it wrong”. He described waterboarding and suggested that it is
“effective to identify phobias” such as claustrophobia and fear of insects and snakes and use them against the detainee.
Death threats, he said, should be “handled on a case by case basis”. Counter Resistance strategy meeting minutes, 2
October 2002. Comments attributed to individuals are paraphrased in the record of this meeting.
269 SSCI Summary, footnote 751.
270 Inquiry into the treatment of detainees in US custody. Report of the Committee on Armed Services, United States
2002-2003 when Scott Muller was in post, Rizzo served as the CIA Acting General Counsel from late 2001 through 2009.
272 Memorandum for the record. ‘Humane’ treatment of CIA detainees. Scott W. Muller, CIA General Counsel. 12 February
275 Detainee tortured, says US official. Washington Post, 14 January 2009. See also Al-Qahtani v. Trump, Memorandum
Opinion and Order, US District Court for DC, 12 August 2020 (“Susan Crawford, the then-convening authority of the
Department of Defense Military Commissions, determined in 2009 that Mr al-Qahtani can never be tried by a military
commission due to the torture he endured at the beginning of his detention”).
276 Husayn v. Gates, Amended petition for writ of habeas corpus. In the US District Court for DC, 25 August 2008. An
unclassified version of this petition was not publicly available for more than eight years, on 28 October 2016.
277 Husayn v. Miller, Petitioner’s motion for Status Conference. In the District Court for DC, 27 November 2020.
278 Ibid.
279 Ibid.
280 Ibid.
281
Husayn v. Esper, Memorandum and Order, US District Court for DC, 6 June 2020.
282
Husayn v. Esper, Joint Status Report, In the US District Court for DC, 22 June 2020.
283 Husayn v. Esper, Joint Status Report, In the US District Court for DC, 7 August 2020.
284 Husayn v. Miller, Petitioner’s motion for Status Conference. In the District Court for DC, 27 November 2020.
285 The lawyers characterized this as “deceptive” given that the COVID-19 pandemic meant they did not have access to
the Secure Facility and might not have such access until months into 2021.
286
Husayn v. Miller, Petitioner’s motion for Status Conference. In the District Court for DC, 27 November 2020.
287 For example, see UN Doc. CAT/C/GC/2 (24 January 2008), General Comment 2, Implementation of article 2 by States
parties, para. 26. (“The non-derogability of the prohibition of torture is underscored by the long-standing principle
embodied in article 2, paragraph 3, that an order of a superior or public authority can never be invoked as a justification of
torture Thus, subordinates may not seek refuge in superior authority and should be held to account individually. At the
same time, those exercising superior authority - including public officials - cannot avoid accountability or escape criminal
responsibility for torture or ill-treatment committed by subordinates where they knew or should have known that such
impermissible conduct was occurring, or was likely to occur, and they failed to take reasonable and necessary preventive
measures. The Committee considers it essential that the responsibility of any superior officials, whether for direct
instigation or encouragement of torture or ill-treatment or for consent or acquiescence therein, be fully investigated
through competent, independent and impartial prosecutorial and judicial authorities”).
288
See, inter alia, OHCR ‘Study on the right to the truth’ UN Doc. E/CN.4/2006/91.
289 See for example, Bringing George W. Bush to justice: International obligations of states to which former US President
http://www.feinstein.senate.gov/public/index.cfm/press-releases?ID=46c0b685-a392-4400-a9a3-5e058d29e635
291
Husayn v. Gates, Minute Order. US District Court for DC, 23 January 2017.
“History is of moral design,” said President Bush in a national radio address in March 2002, adding that
“justice and cruelty have always been at war”. A day earlier, as part of his “war on terror”, he had authorized
the secret transfer of Abu Zubaydah from one location to another to begin what would become four and a half
years of enforced disappearance in undisclosed locations across four continents.293 Then, in September 2006,
the President revealed that Abu Zubaydah had just been taken to Guantánamo. He is still there. He has been
held in US detention without charge for almost 19 years.
What if in 2002 the President had paused and asked people to “imagine a future – 10 years from now or 20
years from now – when the United States of America is still holding people who have been charged with no
crime on a piece of land that is not part of our country”?294 Someone surely might have responded that history
would “cast a harsh judgment” on such an approach to “our fight against terrorism”. 295
Shortly before a new President takes office, Guantánamo detentions will enter their 20 th year. It could be said
of their history from 11 January 2002 to today that “in the Executive Branch, there is a straight line from now
to then”.296 Different policies and rhetoric, yes, but under three Presidents and during five presidential terms
the USA has, in domestic litigation and communications to UN treaty bodies, defended its unilateral, distorting
"law of war" framework to hold these detainees and bypass international human rights principles in so doing.
Each President failed to move the USA closer to accountability for the crimes under international law
292 UN Doc. A/HRC/WG.6/36/USA/1 (13 August 2020), National report submitted in accordance with paragraph 5 of the
annex to Human Rights Council resolution 16/21, United States of America.
293 The President’s radio address, 30 March 2002.
294 Remarks by the President at the National Defense University, 23 May 2013,
https://obamawhitehouse.archives.gov/the-press-office/2013/05/23/remarks-president-national-defense-university
295
Ibid.
296 See Al Bahlul v. USA, US Court of Appeals for the DC Circuit, July 2014, Circuit Judge Brett Kavanaugh concurring in
the judgment in part and dissenting in part (“And in the Executive Branch, there is a straight line from now to then: In
deciding that conspiracy is an offense that may be tried by military commission, President Barack Obama is the same as
President George W. Bush is the same as President Harry Truman is the same as President Franklin Roosevelt is the
same as President Andrew Johnson is the same as President Abraham Lincoln”).
Treaty obligations are binding on the whole of government. A country’s failure to meet these obligations cannot
be excused or justified by reference to a situation where one branch assumes its decision-making power
should be free of scrutiny and another branch defers to such a position, or where one branch blames another
for the country’s failure to meet its treaty requirements. 297 In relation to the Guantánamo detentions,
successive administrations have consistently urged judicial deference to executive war and national security
powers, the “Supreme Court has declined further review” since 2008 and “Congress has similarly left the
field” since it “last articulated standards for the review of detainee claims” in 2011.298
In his second term, President Bush blamed his administration’s lack of progress towards closing Guantánamo
on other countries' refusal to take their nationals back (even as he announced the transfer of more detainees
to the base)299, while at the end of his eight years President Obama blamed “partisan politics” for blocking
closure of the facility.300 What is beyond dispute is that the Guantánamo detentions are a “problem” entirely
of the USA’s own making (while all too often enabled by other governments). An improvised law of war
framework, coupled with a failure to recognize or apply international human rights norms, has led it to dig a
hole into which it has thrown detainees and its own reputation. Full extraction from this situation will not be
achieved in a half-hearted way, but only in a manner that recognizes time, political will, and respect for human
rights are of the essence.
A new urgency and energy are needed, accompanied by a genuine commitment to truth, accountability and
remedy, and a recognition that this must not be allowed to drift any longer. Mistakes were made under the
Obama administration, allowing the detentions to become mired in bureaucracy and bogged down in partisan
politics. Accountability for crimes under international law was put to one side in a forward-leaning approach;
“we tortured some folks” but let’s move on, cannot be the route to justice.301 And then the detainees were
handed from a President who said this was a facility that “never should have been opened in the first place”302
to one who doubled down on the notion that “terrorists are not merely criminals; they are unlawful enemy
combatants”, and signed an order to keep Guantánamo open and ready to receive more detainees.303
After a period in which many pressing social, environmental and justice issues have been set back, the Biden
administration’s plate will undoubtedly be full. But not so full as to be unable to prioritize and resource closure
of the Guantánamo detention facility, to immediately begin to work for a lawful resolution of every single case,
and to commit to a new and full respect by the USA for international human rights law. In the end, this is about
even more than the 40 people still held at Guantánamo. It is not only about the detentions today, but also
about crimes under international law of yesterday and the continuing lack of accountability and remedy for
them. It is about the future too, of moving towards the 20th anniversary of 9/11 and beyond with the USA
striving for real and enduring justice and with a commitment to being a genuine supporter of human rights.
297
UN Doc. CCPR/C/21/Rev.1/Add. 13 26 May 2004, Human Rights Committee, General Comment 31, The Nature of the
General Legal Obligation Imposed on States Parties to the Covenant, para. 4. (“The obligations of the Covenant in general
and article 2 in particular are binding on every State Party as a whole. All branches of government (executive, legislative
and judicial) … are in a position to engage the responsibility of the State Party. The executive branch that usually
represents the State Party internationally, including before the Committee, may not point to the fact that an action
incompatible with the provisions of the Covenant was carried out by another branch of government as a means of seeking
to relieve the State Party from responsibility for the action and consequent incompatibility. This understanding flows
directly from the principle contained in article 27 of the Vienna Convention on the Law of Treaties, according to which a
State Party ‘may not invoke the provisions of its internal law as justification for its failure to perform a treaty”).
298 Al Hela v. Trump, US Court of Appeals for the DC Circuit, 20 August 2020.
299 Remarks on the war on terror, 6 September 2006.
300
Letter from the President to the Speaker of the House of Representatives and the President pro tempore of the Senate,
19 January 2017.
301 ‘We tortured some folks’, 2 September 2014, https://www.amnesty.org/en/documents/AMR51/046/2014/en/
302 Letter from the President to the Speaker of the House of Representatives and the President pro tempore of the Senate,
19 January 2017.
303 State of the Union Address, and Executive Order 13823, Protecting America Through Lawful Detention of Terrorists, 30
January 2018.
The US authorities must recognize that the USA made choices to prioritize the pursuit of intelligence gathering
over criminal justice, and that without the necessary political commitment to prevent enforced disappearance,
torture and other cruel, inhuman or degrading treatment, these human rights violations occurred. One of the
predictable consequences is that the necessary and admissible evidential basis to prosecute and render lawful
justice for internationally recognizable crimes has been severely affected. This consequence lies at the door
of the US government. The government, not the detainees, must accept the cost of its unlawful choices. It now
must take all the necessary executive and other measures to right the wrong it is responsible for and to do so
lawfully. It must also take all the necessary measures to ensure that a programme of state-sanctioned enforced
disappearance, torture and other ill-treatment will never be perpetrated by the USA again.
TO CONGRESS
• Repeal the Authorization for Use of Military Force 2001 and subsections 1021–1022 of Title X,
Subtitle D of National Defense Authorization Act (NDAA) for Fiscal Year 2012, which has been read
to authorize indefinite detention.
• Repeal the legislative framework that allows for civilians to be to be prosecuted in military courts.
• Approve the financial measures to facilitate a swift closure of Guantánamo Bay and to fund
appropriate rehabilitation of those who have been detained there, fully taking into account their
physical and psychological medical needs.
• Lift current restrictions on transferring detainees from Guantánamo to the United States or to third
countries where their rights will be protected.
• Implement a programme of domestic legislation, and international ratifications, in order to strengthen
the USA’s relationship with international human rights law.
Uthman Abdul Mohammed Yemeni 19 years 16 January N/A Continued ‘law of war’
Uthman 2002 detention (PRB 2020)
Moath Hamza Ahmed al Alwi Yemeni 19 years 16 January N/A Continued ‘law of war’
2002 detention (PRB 2020)
Ridah bin Saleh al Yazidi Tunisian 19 years 11 January N/A Approved for transfer
2002 (GRTF 2010)
Ali Hamza Ahmad Suliman Yemeni 19 years 11 January N/A Convicted by military
al-Bahlul 2002 commission (2008),
sentenced to life
Khalid Ahmad Qassim Yemeni 19 years 1 May 2002 N/A Continued ‘law of war’
detention (2020)
Abdul Latif Nasir Moroccan 19 years 3 May 2002 N/A Approved for transfer
(PRB 2016)
Muieen Adeen Abd al Sattar Ethnic 19 years 9 February N/A Approved for transfer
Rohingya 2002 (GRTF 2010)
Toffiq Nassar Ahmed al Yemeni 18 years 6 February 50-59 days ‘Conditional detention’
Bihani 2002 (GRTF 2010)
Suhayl al Sharabi Yemeni 18 years 5 May 2002 N/A Continued ‘law of war’
detention (PRB 2019)
Ghassan Abdullah al Sharbi Saudi 18 years 19 June 2002 N/A Continued ‘law of war’
Arabian detention (PRB 2019)
Abdul Razak Ali Algerian 18 years 19 June 2002 N/A Continued ‘law of war’
Abdelrahman detention (PRB 2019)
Sufiyan Barhoumi Algerian 18 years 18 June 2002 N/A Approved for transfer
(PRB 2016)
Abu Zubaydah (Zayn al Palestinian 18 years 4 September 1,610-1,690 Continued ‘law of war’
Abidin Muhammad Husayn) 2006 days detention (PRB 2020)
Omar Mohammed Ali al Yemeni 18 years 9 May 2003 370-379 days Continued ‘law of war’
Rammah (Zakaria) detention (PRB 2020)
Ismael Ali Faraj al Bakush Libyan 18 years 5 August N/A Continued ‘law of war’
2002 detention (PRB 2020)
Mohammed Ahmed Ghulam Pakistani 18 years 19 September 550-559 days Continued ‘law of war’
Rabbani (Abu Badr) 2004 detention (PRB 2019)
Ramzi bin al Shibh Yemeni 18 years 4 September 1,300-1,309 Charged for capital
2006 days trial by military
commission
304
According to the SSCI Summary.
Abd al Salam al Hela Yemeni 18 years 19 September 590-599 days Continued ‘law of war’
2004 detention (PRB 2018)
‘Abd al Rahim al-Nashiri Saudi 18 years 4 September 1,390-1,399 Charged for capital
Arabian 2006 days trial by military
commission
Sanad ‘Ali Yislam al-Kazimi Yemeni 17 years 19 September 270-279 days Continued ‘law of war’
2004 detention (PRB 2018)
Hassan Mohammed Ali bin Yemeni 17 years 19 September 120-129 days Continued ‘law of war’
Attash 2004 detention (PRB 2019)
Abdul Rahim Ghulam Pakistani 17 years 19 September 550-559 days Continued ‘law of war’
Rabbani 2004 detention (PRB 2018)
Sharqawi Abdu Ali al-Hajj Yemeni 17 years 19 September 120-129 days Continued ‘law of war’
2004 detention (PRB 2019)
Khalid Shaikh Mohammad Pakistani 17 years 4 September 1,280-1289 Charged for capital
2006 days trial by military
commission
Mustafa Ahmad al-Hawsawi Saudi 17 years 4 September 1,280-1,289 Charged for capital
Arabian 2006 days trial by military
commission
Majid Khan Pakistani 17 years 4 September 1,200-1209 Convicted by military
2006 days commission (guilty
plea), sentencing due
May 2021
Ammar al Baluchi Pakistani 17 years 4 September 1,200-1209 Charged for capital
2006 days trial by military
commission
Khallad (Walid) bin Attash Yemeni 17 years 4 September 1,200-1209 Charged for capital
2006 days trial by military
commission
Mohammed Farik bin Amin Malaysian 17 years 4 September 1,170-1,179 Continued ‘law of war’
(Zubair) 2006 days detention (PRB 2019)
Mohammed Bashir bin Lep Malaysian 17 years 4 September 1,110-1,119 Continued ‘law of war’
2006 days detention (PRB 2019)
Riduan bin Isomuddin Indonesian 17 years 4 September 1,110-1,119 Continued ‘law of war’
(Hambali) 2006 days detention (PRB 2019)
Hassan Guleed Somalian 16 years 4 September 900-909 days Continued ‘law of war’
2006 detention (PRB 2018)
Mustafa Faraj Muhammad Libyan 15 years 4 September 460-469 days Continued ‘law of war’
Mas’ud al-Jadid al-Uzaybi 2006 detention (PRB 2019)
(Abu Faraj al-Libi)
Nashwan al-Ramer Iraqi 14 years 27 April 2007 170-179 days Charged for trial by
Abdulrazzaq (Abd al Hadi al military commission
Iraqi)
Asadullah Haroon Gul Afghan 13 years 22 June 2007 N/A Continued ‘law of war’
(Haroon al-Afghani) detention (PRB 2020)
Mohammed Abdul Malik Kenyan 13 years 23 March N/A Continued ‘law of war’
Bajabu 2007 detention (PRB 2019)
Muhammad Rahim al- Afghan 13 years 13 March 240-249 days Continued ‘law of war’
Afghani 2008 detention (PRB 2020)