Human Rights Law, American Justice, and the "War on Terror"

Few individuals were less sympathetic to most Americans after 9/11 than Salim Ahmed Hamdan. According to the U.S. government, Hamdan was a Yemeni national who conspired to commit acts of terrorism for al-Qaeda and served as a driver for Osama bin Laden. U.S. forces took him into custody in Afghanistan in late 2001, and later transferred him to a military prison inside the American base at Guantánamo Bay in Cuba. There, along with hundreds of others, the government sought to detain him indefinitely without access to the outside world. It reserved the right to subject him to “harsh” interrogation methods, including water-boarding, which it used on other detainees. It also selected Hamdan to be one of the few prisoners who would be placed on trial before a special “military commission” with fewer protections than either a full court martial or a civilian court (1) (Figure 1). Yet if Hamdan's situation reflected the Bush administration's response to 9/11, it also came to reflect the limits on how far it could go. Those limits came from protections of fundamental human rights in domestic and international law. As far as the administration was concerned, those limits did not apply and the persons it detained were essentially outside the law. In time, an almost unprecedented coalition of civilian and military lawyers took up Hamdan's case, as well as those of other “Gitmo” detainees. Relying on human rights law, detainees and their attorneys scored a series of victories in the courts, including the U.S. Supreme Court. That Court recognized several specific rights: the right of the detainees to be heard in a civilian court, the right to know why they were being detained, the right to challenge their detention, and the right at some point to have a lawyer. Hamdan's own challenge brought recognition of one further protection—the right not to be tried before the military commissions as initially established. In that sense, Hamdan's story illustrates the potential power of human rights as a partial check on government, even when it is reacting to horrific attacks. At the same time, such judicial victories fell far short of translating into immediate benefits for Hamdan or other detainees. The story invites some discussion of the practical limitation of human rights checks, even when recognized by the Supreme Court.