4 March 2012. PenzaNews. In her statement in late January 2012 on the eve of the 10th anniversary of the first transfer of detainees to the Guantanamo Bay detention facility U.N. High Commissioner for Human Rights Navi Pillay expressed “deep disappointment” that the U.S. government had failed to close the military prison despite Barack Obama’s promise to do so three years ago. She stressed that Guantanamo detainees remain arbitrarily detained indefinitely and described their detention as a “clear breach of international law.”

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In a report published ahead of the anniversary, human rights watchdog Amnesty International highlights that despite President Obama’s pledge to close the detention facility by 22 January 2010, 171 men remain there.

“Guantanamo has come to symbolize 10 years of a systematic failure by the USA to respect human rights in its response to the 9/11 attacks. The U.S. government disregarded human rights from day one of the Guantanamo detentions. As we move into year 11 in the life of the detention facility, this failure continues,” said Rob Freer, Amnesty International’s researcher on the USA.

The detainees still held there today include individuals who were subjected by the United States to torture prior to being transferred to Guantanamo, the report says. There has been little or no accountability for these crimes under international law committed in a program of secret detention operated under presidential authority. The U.S. government has systematically blocked attempts by former detainees to seek redress for violations of their rights.

According to Human Rights Watch, of the 779 detained in total, roughly 600 have been released and eight have died over the course of the past decade. Of the eight deaths, six are suspected suicides. During the administration of President George W. Bush, many detainees at Guantanamo were subjected to extended solitary confinement, threats of torture and death, and torture or cruel, inhuman, or degrading treatment.

Although there seemed to be bipartisan consensus about the national security benefits of closing Guantanamo, Congress imposed almost insurmountable obstacles to doing so.

In particular, as Human Rights Watch notes, over the past two years Congress has enacted legislation blocking the transfer of Guantanamo detainees to the United States for trial. The legislation mainly aims to compel the government to try terrorism suspects before military commissions at Guantanamo rather than in federal courts.

The Military Commissions Act adopted in 2006 authorized the president to create military commission to try noncitizens designated by the U.S. governments as unlawful alien combatants, and Guantanamo detainees, in particular. Human rights activists unequivocally concluded at the time that trials under the Military Commissions Act of 2006 violated international law.

“The Act authorizes trials by military commissions that lack independence from the executive branch of government that has authorized and used systematic human rights violations against detainees; may admit information obtained under cruel, inhuman or degrading treatment and through other illegal methods; restrict the right to be represented by a lawyer of the detainee’s choice; and allow the government to demand and require that the death penalty be passed after unfair trials. Even if a detainee is acquitted by a military commission, he may be returned to indefinite detention if the government designates the person as an “alien unlawful combatant,” Amnesty International’s report stated.

Experts believe that the system of trials conducted by military commissions violates the basic human rights to a fair trial and freedom from arbitrary detention. While the rules governing military commissions have improved since Barack Obama became president, the system at Guantanamo remains deeply flawed, preventing fair trials.

In the opinion of Sterling Professor of Law at Yale University Owen Fiss legislation passed in 2009 improved the rules of evidence for military commissions but failed to provide to the detainees the protections afforded the accused in a civilian trial. In his words, the basic structural defect of the system of military commissions — trial by military officers, rather than by impartial judges — remains.

“Obama not only defended the use of military commissions, but also endorsed Bush’s policy of imprisoning suspected terrorists without providing them with a trial of any type. This policy violates a basic principle — the principle of freedom — that is rooted in due process and the protection of the writ of habeas corpus [the legal rule that no one may be subjected to arbitrary arrest or detention without a court sanction]. Any person imprisoned by the United States must be charged with a crime and swiftly brought to trial. In effect, Obama, much like Bush, claimed there is an exception to this principle that allows the executive to imprison persons captured on the battlefield and to hold them for the duration of hostilities without ever affording them a trial. Yet he did not acknowledge the very special nature of the war against terrorism — a war without a readily foreseeable end — and the threat that imprisonment without trial posed to the principle of freedom and its underlying values when applied to such a war,” the expert said.

Professor of History and Sociology at Binghamton University and Pulitzer Prize winner Herbert Bix believes that the granting of such broad powers to detain individuals without proper due process guarantees is characteristic of fascist regimes but not of a democratic society that the United States proclaims itself to be.

“The Military Commissions Act gave the president unconstitutional powers to detain any individual he says is an enemy combatant anywhere in the world. How different was this Congressional vote from that to grant Hitler powers and do away with the Weimar Constitution?” he ponders.

Furthermore, commentators agree that federal courts have been far more effective at prosecuting terrorism cases. To compare, as New York University's Center on Law and Security reports, 578 terrorism-related cases have been prosecuted in U.S. federal courts while the military commissions have completed only six cases during that same period.

According to Human Rights Watch’s estimates, not only have federal courts prosecuted a far greater number of terrorism cases than military commissions, they have also prosecuted them much more quickly. Thus, it was found that the average time between arrest and conviction in federal court for the main defendants in the top 50 terrorism plots was 1.4 years, and that generally the time between arrest and conviction only rarely exceeded 3 years. Meanwhile, the average time in the military commissions between initial capture and conviction for all six detainees prosecuted was 7.6 years, and the maximum time spent in detention before conviction was over 9 years.

Ongoing U.S. violations of detainee rights are not limited to Guantanamo. According to Human Rights Watch, nearly 3,000 people now held by American forces in Afghanistan have not been afforded the basic rights that even captured enemy fighters are due in a civil war, such as being informed by a judge of the basis for their detention or allowed access to counsel. And individuals apprehended outside of Afghanistan currently detained there should never have been brought to the country at all. As Professor of Law at Yale University Owen Fiss notes, Obama denies that habeas is available for the prisoners of Bagram, just as Bush denied it was available for the Guantanamo prisoners.

According to Amnesty International, an unknown number of people have been held in secret CIA custody. At least three dozen people believed to have been held in secret remain unaccounted for, and their fate and whereabouts are unknown.

Meanwhile, the U.S. government is seeking to expand its powers to detain terrorism suspects and to accord legitimacy to its arbitrary practices of detention of such persons without trial. Thus, the National Defense Authorization Act (NDAA) for 2012 passed by Congress and signed by President Barack Obama in December 2011 raises serious human rights concerns by codifying the practice of indefinite detention without trial into U.S. law.

According to historian and sociologist Herbert Bix, NDAA has expanded the scope of the Military Commissions Act so that the president can indefinitely detain people who have not been covered — both U.S. citizens and noncitizens — based solely on allegation or rumor.

“Now we have a new operational phase of the War on Terror: assassination of U.S. citizens — last year Anwar al-Awlaki and journalist Samir Khan were assassinated. This was a milestone event, a violation of the U.S. Constitution and international law,” he noted.

However, Tom Wilner, Counsel of Record for the Guantanamo prisoners in their cases before the Supreme Court in 2004 and 2008, believes that NDAA also contains a provision that could be interpreted as authorizing the transfer of prisoners out of Guantanamo by easing congressional restrictions.

“It gives the Obama Administration both the legal authority and the practical ability to transfer detainees from Guantanamo back to their home countries. The question is no longer whether the Administration has the authority to transfer detainees home but whether it has the political courage to do so,” he said.

Over half of the Guantanamo prisoners — 89 of the 171 remaining prisoners — have been cleared for release for more than two years, but prevented from being transferred out of Guantanamo by prior congressional restrictions.

Therefore, the adoption of NDAA is yet another step toward full recognition in the American legal system of the unlimited power of the president to choose whatever means he deems necessary to fight the war on terror, even if such methods violate both national and international human rights standards. For as the U.S. Congressional Research Service concludes, the president’s authority to detain “enemy combatants,” including American citizens, is part of the necessary defense sanctioned by Congress.

“Obama, rather than dismantling Bush’s counterterrorism apparatus, has in crucial respects perpetuated it. With Obama’s sanction, Bush’s counterterrorism policies have become durable features of our legal order. They have shaped our understanding of what is acceptable, and may well serve as precedents for a less reluctant president,” Yale University Professor Owen Fiss concluded.