Under the Convention against Torture, if states know of torture having taken place, they have obligations to provide redress and rehabilitation for victims and pursue prosecution of those responsible. Despite this, the United States continues to detain prisoners who were subjected to years of CIA torture in Guantánamo Bay. The United States is pursuing the death penalty through the Military Commissions (MC) system which falls far short of any international standards for fair trial. Ongoing systematic physical and psychological abuse prolongs torture’s effects. We argue that the ongoing arbitrary detention, abuse, denial of healthcare, and the MCs constitute a regime of torture that persists today, with the acquiescence of successive US administrations, and with the collusion of multiple agencies of the US state. This regime is deliberately intended to keep CIA torture victims incommunicado as long as possible to prevent evidence of the worst excesses of CIA torture from ever coming to light. This regime has profound implications for human rights accountability and the rule of law. Our argument offers an opportunity to revisit the prevailing narrative in International Relations literature, which tends to view the CIA torture programme as an aberration, and its closure an indicator of the restoration of the anti-torture norm.

This casenote outlines and analyses the US Supreme Court's 2006 decision in Hamdan v. Rumsfeld. In this case the Court held that suspected terrorists held in Guantánamo Bay were entitled to bring habeas corpus petitions to federal courts and to the benefits of the Uniform Code of Military Justice and Common Article 3 of the Geneva Conventions. The US Supreme Court eschewed the tradition of judicial deference to overturn the President's determination that military commissions could be established without congressional approval in the circumstances of the ‘War on Terrorism’. The casenote goes on to consider the aftermath of this decision, including the introduction of the Military Commissions Act 2006, and the implications of this Act for the future of Guantánamo Bay litigation.