Later today the US Supreme Court will hear oral arguments in relation to Guantánamo detentions on whether the US courts have been unlawfully stripped of jurisdiction to consider habeas corpus petitions from alien “enemy combatants” held in US custody.

The case, Boumediene v. Bush, is the third time that the Supreme Court has considered aspects of the Guantánamo regime, and follows Rasul v. Bush in 2004 and Hamdan v. Rumsfeld in 2006. Although these rulings went against the government in a number of ways, the administration has, in Amnesty’s view, interpreted the decisions in ways that have avoided or delayed judicial scrutiny, violating the internationally recognised rights of the detainees.

The Court is expected to rule on the Boumediene v. Bush case in the first half of 2008, by which time the Guantánamo detentions would be well into their seventh year.

Amnesty International UK Guantánamo campaigner Sara Mac Neice said:

“This is a crucial moment for human rights and the rule of law. Indeed, the questions pending before the Supreme Court go beyond the rights of detainees through to the very concepts of accountable government.”

“With the US courts effectively removed from their role as an independent check on executive action, the past six years have seen a litany of abuse - from secret detainee transfers, arbitrary detentions, torture, cruel treatment and unfair trial procedures, through to the international crimes of torture and enforced disappearance. Guantánamo has been a core part of this unlawful detention regime.

“Habeas corpus is not a technical nicety; it is a basic safeguard against government abuse. Restoring this safeguard in full and for all detainees is long overdue.“

Amnesty International believes that the US administration chose Guantánamo Bay as a location to hold detainees in the “war on terror” because it expected that under existing US jurisprudence the courts would not be able to consider habeas corpus petitions filed on behalf of foreign nationals captured abroad and held on territory that was ultimately part of Cuba. Six years on, this unlawful executive detention regime remains essentially intact.

Sara Mac Neice said:

“The ‘rights-free’ zone that the USA has attempted to create in Guantánamo cries out for full and effective judicial scrutiny and the restoration of due process. Anything less will not meet the USA’s international legal obligations.“

Background information
Embedded in this legal controversy is the Combatant Status Review Tribunal (CSRT), an executive body created by the US administration two and a half years after the detentions began at Guantánamo to determine whether the detainees were “properly detained” as “enemy combatants”.

Under the CSRT scheme, panels of three military officers can consider any information - including information obtained under torture and other ill-treatment - in making their determinations. The detainee, virtually cut off from the outside world, has no access to a lawyer or to classified information used against him. Judicial review is limited to a single federal Court of Appeals and to an assessment of the CSRT’s “propriety of detention” decisions. The government contends that this scheme is an adequate substitute for habeas corpus.

Amnesty International considers that an absence of due process has left all of the Guantánamo detainees arbitrarily detained, in violation of international human rights law, which applies at all times, including in times of emergency or war, however defined. The detainees should have the right to challenge the lawfulness of their detention in an independent and impartial court and to a remedy - whether that remedy be release or the initiation of trial proceedings. Belated, unfair and truncated administrative review followed by narrow judicial review falls far short of the USA’s international obligations. Moreover, nearly six years after the first detainees arrived in the Guantánamo base, no such reviews by the Court of Appeals have as yet been conducted.

The CSRT’s fundamental flaws include its lack of independence, its lack of competence to order a remedy, the denial of legal counsel to the detainee who has no meaningful way to confront the government’s case against him, the use of information obtained under unlawful methods including torture and other ill-treatment, and the non-transparency of the CSRT system which can obscure the reasons for these unlawful detentions. In addition, this scheme - reserved for foreign nationals - is discriminatory, in violation of international law.

The CSRT scheme has become part of the administration’s continued pursuit of unchecked power in the “war on terror”. This pursuit has resulted in the violation of the rights of a whole category of detainees, namely those labelled as “enemy combatants”, a status unknown in international law, at least with the consequences unilaterally ascribed to it by the USA.

For further information see: "USA: No substitute for habeas corpus: six years without judicial review in Guantánamo", November 2007 ( http://web.amnesty.org/library/Index/ENGAMR511632007 ). This is a companion report to the amicus curiae brief Amnesty International has filed in the US Supreme Court with three other international organisations: the International Federation for Human Rights, the Human Rights Institute of the International Bar Association, and the International Law Association. The brief is available at: http://www.mayerbrown.com/public_docs/probono_Amnesty_International.pdf /p>

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