Rule of law eludes Guantanamo detainees despite Obama’s cheerleading for rights

by Cesar Chelala

NEW YORK — The Obama administration should show resolve in releasing Guantanamo Bay inmates or trying them in a court of law, says Navanethem Pillay, the U.N. High Commissioner for Human Rights.

Her statement challenges President Barack Obama’s remarks last May indicating that some Guantanamo detainees were too dangerous to be released and might have to be held indefinitely. The high commissioner’s comments represent some of the stronger reactions to President Obama’s decision to limit investigation of past abuses of detainees and to continue to hold some detainees without trial.

“The Obama administration has taken aggressive action on this issue from day one, upholding our nation’s fundamental values while making the American people safer,” Mark Kornblau, a spokesman for the U.S. mission to the United Nations, said in response, underscoring the administration’s stand on human rights.

But, according to Pillay, “There is still much to do before the Guantanamo chapter is truly brought to a close.”

The fate of the Guantanamo detainees is one of the most contentious legal issues facing the Obama administration. In 2003, the International Committee of the Red Cross revealed its concern about the negative psychological impact that indefinite detentions were having on a large number of prisoners at Guantanamo and their families.

As Amnesty International says, a year after the U.S. Supreme Court ruled that the detainees were entitled to prompt habeas corpus hearings to challenge the lawfulness of their detention, only a handful of them have received a hearing based on the merits of their challenges.

In addition, indefinite detentions have continued even after judges ordered the immediate release of detainees.

When President Obama took office Jan. 20, there were approximately 245 men held at Guantanamo. Of those, about 200 had habeas corpus petitions pending in District Court. From then until early April, only one detainee was released from Guantanamo; the rest remained in indefinite detention at that facility.

The Obama administration has rightly rejected the term “war on terror” for U.S. counterterrorism efforts and has stopped use of the term “enemy combatant” in the Guantanamo detainee litigation process.

Yet, as Amnesty International points out: “It [the Obama administration] does not yet seem to be rejecting the substance of the insidious global war framework developed by its predecessor” and, like the latter, cites the Authorization for Use of Military Force, a broadly worded congressional resolution passed after the Sept. 11, 2001, attacks as the basis for continuing the detentions.

According to the International Covenant on Civil and Political Rights, “Anyone whose rights have been violated must be able to seek effective remedy, including through the courts.” This principle is violated each time a Guantanamo detainee’s effective and timely access to judicial review is delayed.

Several legal and human rights organizations have seriously questioned the U.S. government decision to keep Guantanamo detainees without charge or trial. They demand that each detainee either be charged with a recognizable criminal offense for a proper trial in existing federal courts or be immediately released.

As stated by the U.N. Human Rights Committee in its General Comment 29, even when confronting situations that threaten the life of the nation, “in order to protect nonderogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished.”

“Signals coming from America reverberate around the world,” Pillay says. “Sending the right ones is the responsibility of power.”

The correct decisions on the fate of the Guantanamo detainees will be an important test of the Obama administration’s commitment to the rule of law in this controversial issue.

Cesar Chelala, M.D., a writer on human rights issues, is a cowinner of the Overseas Press Club of America award and is the foreign correspondent for the Middle East Times International (Australia).