The first point is this: although argumentation in cases on Guantánamo Bay is primarily based on domestic legal standards, this does not preclude reliance on international human rights law. The article makes the point – drawing on our own Diane Marie Amann’s excellent “Raise the Flag and Let it Talk” – that IHRL can be used to help to give contemporary meaning to domestic legal standards and ought to be drawn upon in appropriate circumstances. The current security paradigm is precisely such an appropriate moment because IHRL is designed with emergency in mind in a way that US domestic law is not; it is a model of accommodation, to borrow the wonderful formulation of Fionnuala Ní Aoláin (below right) and Oren Gross (Law in Times of Crisis, 2007). In addition, international human rights law standards relating to detention, habeas corpus and so on have developed through jurisprudence that focused largely on the legitimate democratic crisis that arises in times of terrorist threat; thus the standards have been set with the need to detain in mind (see further my "The Right to Challenge the Lawfulness of Detention: An International Perspective on US Detention in the War on Terrorism" (2007) 12(2) Journal of Conflict and Security Law 223). It should also be noted that the US Constitutional model of rights and IHRL have a common core value: the protection of individual dignity from overly repressive or invasive state action, regardless of one’s citizenship (INS v St Cyr) but taking into account that one’s behaviour may be relevant to the extent that one can enjoy certain (although not all) rights in an unimpeded way (Hamdi). Thus, the fact that the International Covenant on Civil and Political Rights, for example, is a non-self executing treaty and has not been incorporated into US domestic law does not mean that it ought never to be relied upon in court – why not argue international standards to try to reshape the content of domestic ones?
[T]he decision to all but ignore international human rights law reads as a concession to the Administration’s position that domestic law has a monopoly on the treatment of Guantanamo Bay detainees. This decision is lamentable on both practical and doctrinal levels. On a practical level it is to be lamented because the protections afforded by an understanding of constitutional standards informed by cotemporary international norms arguably affords more secure protection to suspected terrorists. On a doctrinal level it is to be lamented because it acquiesces in a view of domestic law as a thing untouched by international standards and understandings of individual rights that is not only antiquated but also out of step with the original conception of US law, which seems to have been one of a body of rules receptive to (if not occasionally in need of) external influence. [Internal reference omitted] … It seems difficult, if not impossible, to read this strategic decision as anything other than one that indicates a willingness to play out the drama of Guantanamo detainees’ rights on the pitch chosen by the administration, rather than to change its intellectual location through the injection of contextually relevant international legal standards.