of time.250 The Human Rights Committee found a violation of Article 9(4) of the ICCPR
when an individual was not released immediately and remained in detention for two
months after his detention was determined to be unlawful.251 In the majority of successful
habeas corpus cases, the United States has continued to detain individuals beyond two
months, in some cases for over four years.252 ODIHR notes that the transfer of detainees is
complicated by various issues, including the need to ensure that detainees are not tortured
or persecuted once transferred as well as logistical issues resulting from the location of the
detention facility. ODIHR also observes that the US government is currently unable to
transfer detainees to the United States.253 Though some delay may occur due to the
complexities of transfers from Guantánamo, continued detention following a judicial
finding of unlawful detention, particularly in excess of several months after the ruling,
defeats the purpose of such a review and thereby violates the prohibition of arbitrary
detention.254
176. A number of other challenges for detainees appear in relation to habeas corpus petitions.
Since the United States Court of Appeals for the District of Columbia Circuit reversed the
District Court’s decision in Al Adahi v. Obama in 2010, questions have been raised as to
whether this remedy is truly available due to the low standard of proof for the government
and to the deference that district courts give to the US government’s reasons for
detention.255 Furthermore, as detainees are associated with terrorism by virtue of their
250
United States Supreme Court, Jamal Kiyemba et al. v. Barack H. Obama, Case Nos. 08-1234, 20 October 2009,
<http://scholar.google.pl/scholar_case?case=3060628020692206265&hl=en&as_sdt=6&as_vis=1&oi=scholarr&sa=X&ei=PLiu
VLSzJcPdauC1gZgC&ved=0CB4QgAMoADAA>; United States Court of Appeals for the District of Columbia Circuit, Jamal
Kiyemba v. Barack Obama, Case Nos. 08-5424, 08-5425, 08-5426, 08, 5427, 08-5428, 08-5429, 28 May 2010,
<http://scholar.google.pl/scholar_case?case=8032365351883273404&hl=en&as_sdt=6&as_vis=1&oi=scholarr&sa=X&ei=1Liu
VPvADtDlaLubgKAJ&ved=0CB4QgAMoADAA>; United States Court of Appeals for the District of Columbia Circuit,
Kiyemba v. Obama, 18 February 2009, op. cit., note 157; Hafetz, “Calling the Government to Account”, op. cit., note 159, pp. 3036; ODIHR interview with the American Civil Liberties Union, 24 February 2014, op. cit., note 82: interlocutors told ODIHR
that even if a detainee wins his habeas petition, the government may still claim that he should not be transferred out of
Guantánamo back to his own country due to security conditions or risks of torture.
251
UN HRC, Chambala v. Zambia, op. cit., note 114, para. 7.3.
252
See Part 3-II-B of this report for additional information. Andy Worthington, “Guantánamo Habeas Results: The Definitive
List”, andyworthington.co.uk, February 2014, <http://www.andyworthington.co.uk/Guantanamo-habeas-results-the-definitivelist/>; Mark Denbeaux, Jonathan Hafetz et al., “No Hearing Habeas: DC Circuit Restricts Meaningful Review”, Seton Hall
Public Law Research Paper No. 2145554, 1 May 2012, p. 5,
<http://law.shu.edu/ProgramsCenters/PublicIntGovServ/policyresearch/upload/hearing-habeas.pdf>; “The Guantánamo Docket”,
The New York Times website, op. cit., note 88.
253
The United States cannot currently transfer detainees to the United States due to the transfer restrictions in the NDAA as
discussed further in Part 3 of this report.
254
UN HRC, Chambala v. Zambia, op. cit., note 114, para. 7.3; ADRDM, Art. XXV; UN HRC, General Comment No. 35, op.
cit., note 92, para. 41.
255
UN CAT, Concluding observations on the combined third to fifth periodic reports of the United States of America, op.
cit., note 107, para. 14: “the Committee is concerned at reports that indicate that federal courts have rejected a significant number
of habeas corpus petitions”; Denbeaux, Hafetz et al., “No Hearing Habeas”, op. cit., note 252, pp. 4, 11; Hafetz, “Calling the
Government to Account”, op. cit., note 159, p. 27; ODIHR interview with the Center for Constitutional Rights, 24 February
2014: interlocutors explained that the burden of proof is much lower than in regular civil cases, and that all evidence, including
hearsay and coerced evidence, is admissible. As long as the government presents some evidence they win the case; ODIHR
interview with Matthew O’Hara, 14 March 2014: O’Hara stated that he and other counsel came to the conclusion that no detainee
in Guantánamo can ever win a habeas corpus case based on the United States Court of Appeals for the District of Columbia
Circuit’s view of the law; indeed, no detainee could obtain a writ of habeas corpus in the District Court for the District of
Columbia and then prevail in the Court of Appeals for the District of Columbia Circuit when the government appeals. The
standard was created so that whatever the executive says will be accepted, no matter the source; ODIHR interview with Brent
Rushforth, op. cit., note 207: Rushforth said that many successful trial court decisions have been reversed by the Court of
Appeals for the District of Columbia Circuit, which has set the bar of standard of evidence so low for the government that it is
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