Yesterday, the Senate Intelligence Committee announced that it passed the 2009 Intelligence Authorization bill by a bipartisan vote of 10-5 and that the bill includes a provision requiring the Red Cross be made aware of, and given access to, anyone detained by any element of the Intelligence Community. Here’s some background on secret detentions that explains why this provision is important.
The detention and interrogation program of the Central Intelligence Agency (CIA) was authorized under a classified September 17, 2001 presidential order. After years of refusing to deny or confirm the existence of the Presidential Order on Detention Facilities Abroad, the U.S. government in 2006, in response to a lawsuit filed by the American Civil Liberties Union (ACLU), acknowledged its existence. 1 It has refused to make the document public, however, or even provide it to members of Congress.2
In September 2006, just before the anniversary of the September 11 attacks, President George W. Bush publicly acknowledged that the CIA had been secretly detaining suspected terrorists in facilities outside the United States. The president stated that he could not reveal “the specifics of this program, including where these detainees have been held and the details of their confinement.” 3 Although the president said that the “the United States does not use torture,” he described several cases where the CIA used “an alternative set of procedures” to obtain information from detainees who were resisting interrogation.4 President Bush also said at the time that with the transfer of several detainees from secret CIA detention to the Guantánamo Bay detention facility, there were no more detainees being held in secret by the CIA.5
But the CIA secret detention program continues to operate. On April 27, 2007, the Pentagon announced the transfer of Abd al-Hadi al-Iraqi from CIA custody to the Guantánamo Bay detention facility.6 This was the first time the use of the secret overseas detention was acknowledged since President Bush announced the existence of the program in 2006. On March 14, 2008, the Pentagon announced that Muhammad Rahim al Afghani had been transferred to Guantánamo Bay from CIA custody. Rahim was captured in Pakistan in the summer of 2007 and transferred to the CIA in August 2007. 7 These continued transfers from CIA custody to military custody raise concerns and questions about how and where detainees are held, what kind of treatment they endured, and whether other prisoners still remain in CIA detention.
Notably, Rahim’s capture and transfer comes on the heels of President Bush’s July 20, 2007 Executive Order §13440 which did not prohibit the CIA’s secret detention and enhanced interrogation program. The Executive Order neither permits to provide detainees held by the CIA to be notified by the International Committee of the Red Cross (ICRC) or any other independent monitoring body, nor does it give any indication that the families of those detained are to be notified.
Secret Detention Violates Human Rights Law
Secret detention, otherwise known as enforced disappearances violates a host of human rights norms. It prevents detainees from asserting the right to judicial and administrative remedies for arbitrary detention and violation of the right to liberty and security of the person. It enables detaining authorities to expect impunity for acts of torture and other cruel, inhuman and degrading treatment and violation of rights to life and to fair and public trial. 8
The International Convention for the Protection of All Persons from Enforced Disappearance defines “enforced disappearance” as: “the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.” The convention bars secret detention, requires state parties to hold detainees in official recognized places of detention, maintain official detailed records of all detainees, authorize detainees to communicate with family and counsel, and gives competent authorities access to detainees.
The United States government has not acknowledged the exact number of people in the CIA detention and interrogation program. The closest official number is based on CIA director Gen. Michael V. Hayden’s remarks in 2007 at the Council of Foreign Relations in which he stated that, “Since [the CIA detention and interrogation program] began with the capture of Abu Zubaidah in the spring of 2002, fewer than 100 people have been detained at CIA’s facilities.”9
Although CIA personnel have described aspects of the program to some journalists and some information has been learned though former CIA prisoners, much remains unknown about the scope of the program, the locations of the detention facilities, the treatment of detainees, and the cooperation and complicity of other governments.
Since the inception of the program, the CIA reportedly operated detention centers in Afghanistan, the island of Diego-Garcia, Djibouti, Thailand, Jordan, Morocco, Eastern Europe, including Poland and Romania, and Guantánamo Bay. 10 It is unclear where the CIA is currently operating a secret facility.
In 2005, the Washington Post reported that some 30 “major terrorism suspects” were held at high-security prisons operated exclusively by CIA personnel, while an additional 70 less important suspects were transferred to prisons run by other countries’ intelligence services.11 The major suspects, also known as “High-Value Targets,” were alleged top al Qaeda leaders, not “foot soldiers.”12
Details about the CIA’s secret detention and interrogation program also emerged in 2004-2005 from former prisoners. In June 2005, Khalid el-Masri, a German citizen of Lebanese descent, told German police about his kidnapping, abuse, and secret detention. El-Masri was arrested by Macedonian agents, held secretly for a month in Macedonia, and then picked by U.S. agents and flown to Afghanistan and held by the CIA for several months.13
The largest CIA prison in Afghanistan was code-named the Salt Pit. It was also the CIA’s substation and was first housed in an old brick factory outside Kabul. The Salt Pit was protected by surveillance cameras, it was moved inside Bagram Air Base, but then relocated off the base.14
In 2005, three Yemeni former CIA detainees told Amnesty International about their experience in CIA detention.15 A number of Guantánamo detainees also told their legal counsel that prior to transfer to Guantánamo they had been held in a secret “dark prison” in Kabul, Afghanistan and interrogated by U.S. officials and suffered various forms of physical and mental abuse.16
ABC News on November 18, 2005, also reported that several CIA officials admitted that the CIA had operated a secret facility in Kabul, and had voiced concerns about the interrogations there. 17 CIA officials authorized six techniques for use against detainees with “high-level” intelligence value, including long-term sleep deprivation, exposure to cold for more than 40 hours, and “waterboarding.” The officials, who spoke on conditions of anonymity, told ABC that the CIA had authorized these techniques in March 2002 and that they were used at the Kabul facility and elsewhere.
The Washington Post reported that following the capture of Abu Zubaida in March 2002 in Pakistan, the CIA took him to a Thailand.18 According to the Post, former and current intelligence officials said that the Thailand detention center included underground interrogation cells. Six months later, Ramzi Binalshibh, who is alleged to have participated in planning the September 11 attacks, was also captured in Pakistan and flown to Thailand.19 But after published reports revealed the existence of the site in June 2003, Thai officials insisted the CIA shut it down, and the two prisoners were moved elsewhere.20
In November 2005, Poland and Romania were identified as having hosted CIA detention centers.21 The Washington Post, citing U.S. government concerns,did not reveal the identities of the two countries, but referred to them generically as “eastern European democracies.” 22 On December 5, 2005, ABC News reported that following the revelations of the detention centers in Poland and Romania, the sites had been closed and suspects had been transferred to CIA facilities in Morocco. The ABC story also reported that the 11 suspects detained in Poland had been subjected to harsh interrogation techniques.23
The Council of Europe’s Parliamentary Assembly initiated an investigation in November 2005 about the CIA sites in Europe. In a report in June 2007, the investigation concluded that there is “now enough evidence to state that secret detention facilities run by the CIA did exist in Europe from 2003 to 2005, in particular in Poland and Romania.” 24 It also found that prisoners in these facilities were subjected to “interrogation techniques tantamount to torture.”25
Information about the CIA program continues to unfold. Human rights NGOs and the press reported that a Yemeni was in CIA custody in Afghanistan and suffered abuse while in custody,26 and that a Jordanian, held initially in Pakistan where he was abused by Pakistani officials and interrogated by U.S. officials, was held in isolation in CIA custody in Afghanistan for nearly two years.27
1 ACLU News Release, “CIA Finally Acknowledges Existence of Presidential Order on Detention Facilities Abroad,” November 14, 2006.
2 “Leahy ‘brushed off’ on secret terror docs,” United Press International, January 3, 2007.
3 White House, Office of the Press Secretary, “President Discusses Creation of Military Commissions to Try Suspected Terrorists,” September 6, 2006.
6 Dafna Linzer, “CIA Held Al-Qaeda Suspect Secretly: Officials Disclose That Use of Overseas Prisons Resumed,” Washington Post, April 28, 2008.
7 “U.S. Defense Dept: Top Terrorist Nabbed,” CBS News, March 14, 2008.
8 See, e.g. International Covenant on Civil and Political Rights, articles 6(1) (right to life), 7 (prohibition against torture and ill treatment), 9 (right to liberty and security), and 14 (fair trial).
9 Remarks of Central Intelligence Agency Director Gen. Michael V. Hayden at the Council on Foreign Relations (as prepared for delivery), September 7, 2007, http://www.fas.org/irp/cia/product/dcia090707.html; see also Human Rights Watch, Cage Prisoners, Reprieve, NYU Center for Human Rights and Global Justice, Amnesty International, Off the Record: U.S. Responsibility for Enforced Disappearances in the ‘War on Terror’, June 2007 (citing 39 persons who at one point were in secret CIA custody and the whereabouts of most are unknown).
10 Dana Priest, “CIA Holds Terror Suspects in Secret Prisons: Debate Is Growing Within Agency About Legality and Morality of Overseas System Set Up After 9/11,” Washington Post, November 2, 2005; Amnesty International, Secret Detention in CIA Black Sites, November 2005.
11 Priest, “CIA Holds Terror Suspects in Secret Prisons.”
13 See generally ACLU, Statement: Khaled El-Masri, December 12, 2006, available at http://www.aclu.org/safefree/extraordinaryrendition/22201res20051206.html
14 Priest, “CIA Holds Terror Suspects in Secret Prisons.”
15 Amnesty International, “Secret Detention in CIA ‘Black Sites.’”
16 Human Rights Watch News Release, “U.S. Operated Secret ‘Dark Prison’ in Kabul,” December 19, 2005.
17 Brian Ross and Richard Esposito, “CIA’s Harsh Interrogation Techniques Described: Sources Say Agency’s Tactics Lead to Questionable Confessions, Sometimes to Death,” ABC News, Nov. 18, 2005.
18 Dana Priest, “CIA Holds Terror Suspects in Secret Prisons,” Washington Post.
21 Human Rights Watch Statement on U.S. Secret Detention Facilities in Europe, November 7, 2005.
22 Dana Priest, “CIA Holds Terror Suspects in Secret Prisons,” Washington Post.
23 Brian Ross and Richard Esposito, “Sources Tell ABC News Top Al Qaeda Figures Held in Secret CIA Prisons,” ABC News, December 5, 2005.
24 Council of Europe Parliamentary Assembly, Alleged Secret Detentions and Unlawful Inter-State Transfers Involving Council of Europe Member States, June 7, 2006.
26 BBC, “Yemeni Describes CIA Secret Jails,” March 14, 2008 (citing a report by Amnesty International).
27 Human Rights Watch, Ghost Prisoner: Two Years in Secret CIA Detention, February 2007. See also Dafna Lizner and Julie Tate, “New Light Shed on CIA’s ‘Black Site’ Prisons,” Washington Post, February 28, 2007.