Amendment to detainees held at Guantánamo has not been determined by a domestic
court.900
374. The MCA 2009 specifically excludes the applicability of speedy trial rights contained in
the UCMJ and the rules of courts-martial to military commissions.901 Additional provisions
in the RMC provide, subject to some exceptions, that an accused should be arraigned
before the military commission within 30 days of the service of the charges and that the
judge shall announce the assembly of the military commission within 120 days of the
service of the charges.902
c. Findings and Analysis
375. Under the MCA 2009, the right to be tried without undue delay, as contained in the UCMJ,
has been explicitly made inapplicable to military commissions.903 The specific removal of
speedy trial rights creates the impression that the US government does not intend or does
not believe that it is possible for military commissions’ proceedings to comply with speedy
trial rights. This exclusion combined with the lengthy proceedings thus far, as discussed in
more detail below, raise grave concerns that Guantánamo detainees have been intentionally
deprived of their right to be tried without undue delay.
376. The multiple versions of military commissions between 2001 and 2009 have led to long
delays, in some cases due to the withdrawal and refiling of charges, which explains some
of the earlier delays involved in military commission proceedings. For instance, al Bahlul
was initially charged in 2004 and, following the United States Supreme Court ruling that
invalidated the original military commissions and the subsequent creation of the MCA
2006, the US government recharged al Bahlul in 2008904 and he was convicted in 2008.905
As of 31 August 2015, his case was still under appeal. Hence, it has been more than 11
years since al Bahlul was initially charged and more than seven years since he was
recharged, but his trial has still not reached the point of final judgment on appeal.
Additionally, Hamdan was initially charged in 2004,906 recharged in 2007907 and convicted
in 2008,908 but the final decision on appeal, in which his conviction was vacated, was not
900
In the federal prosecution of former Guantánamo detainee Ahmed Khalfan Ghailani, the US Court of Appeals for the Second
Circuit held that “there was no violation of Ghailani’s right under the Speedy Trial Clause of the Sixth Amendment” of the US
Constitution in spite of the fact that he “was held abroad for several years by the Central Intelligence Agency and the Department
of Defense while his indictment was pending”. United States Court of Appeals for the Second Circuit, United States v. Ahmed
Khalfan Ghailani, Case No. 11-320-CR, 24 October 2013.
901
MCA 2009, § 948(b)(d)(1)(A).
902
RMC, Rule 707(a). Exceptions to the prescribed time periods are set out in RMC, Rule 707(b)(4), which provides that new
time periods run following the withdrawal or dismissal of charges, mistrials, government appeals, rehearings, continuances and
for periods of hospitalization of the accused.
903
MCA 2009, § 948(b)(d)(1)(A); ODIHR meeting with the Department of Defense Office for the Convening Authority, op. cit.,
note 841.
904
United States Military Commission, “Charges”, 28 June 2004; United States Military Commission, “Charge Sheet: Ali Hamza
Ahmad Suliman al Bahlul”, 8 February 2008.
905
United States Military Commission, United States of America v. al Bahlul, AE 074, “Findings Worksheet”, op. cit., note 631.
906
United States District Court for the District of Columbia, Salim Ahmed Hamdan v. Donald H. Rumsfeld, Case No. 04-1519, 8
November 2004, p. 3, <www.legislationline.org/documents/id/7456>.
907
United States Military Commission, “Charge Sheet: Salim Ahmed Hamdan”, 5 April 2007.
908
United States Military Commission, “Report of Result of Trial”, 7 August 2008.
163
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