Guantanamo & Belmarsh

Abstract

This chapter analyzes four post-9/11 decisions of the US Supreme Court addressing the detention of suspected terrorists at Guantanamo Bay and four decisions of the UK House of Lords addressing detentions originating at the UK Belmarsh Prison. The four US decisions address what rights the Guantanamo detainees have and what actual authority the President has to detain them indefinitely. The four House of Lords decisions initially address the detentions and then focus on the requisite conditions of due process. Guantanamo Bay was selected by the Bush administration as a de jure black hole where it was intended that neither domestic nor international law (in particular Geneva Conventions nor the International Covenant on Civil and Political Rights ) would apply. The US Supreme Court rejected Bush’s argument that he had the authority to create military tribunals holding that, by statute, habeas corpus applied. The 2008 Boumediene v Bush opinion is the only constitutionally based US Supreme Court decision recognizing that the Guantanamo detainees have a constitutional right to habeas corpus. The UK Law Lords’ 8-1 landmark decision in A v Secretary of State for the Home Department held that the ATCSA detention provisions were not in compliance with the ECHR and accordingly issued a declaration of incompatibility per the requirements of the Human Rights Act 1998. In subsequent decisions, the Law Lords forbade the use of torture, and held that any restrictions of liberty and the use of secret evidence impermissible.