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Security Detainees/Enemy Combatants

Report: Ending Secret Detentions

I. Introduction

More than 3,000 suspected terrorists have been arrested in many countries. Many others have met a different fate. Put it this way, they’re no longer a problem to the United States and our friends and allies.

—President George W. Bush
State of the Union Address
February 4, 2003

In April, the U.S. Supreme Court heard oral arguments in the cases of Jose Padilla and Yaser Hamdi – both U.S. citizens who have been held in military detention facilities for more than two years. One Justice wondered aloud how the court could be sure that government interrogators were not abusing these detainees.  You just have to “trust the executive to make the kind of quintessential military judgments that are involved in things like that,” said Deputy Solicitor General Paul Clement.[1]  Later that evening, cbs’s 60 Minutes broadcast the first shocking photographs of U.S. troops torturing Iraqi prisoners at the Abu Ghraib detention center in Iraq.

The photos from Abu Ghraib have made a policy of “trust us” obsolete.  But they are only the most visible symptoms of a much larger and more disturbing systemic illness.  Since the attacks of September 11, the United States has established a network of detention facilities around the world used to detain thousands of individuals captured in the “war on terrorism.”  Information about this system – particularly the location of U.S. detention facilities, how many are held within them, on what legal basis they are held, and who has access to the prisoners – emerges in a piecemeal way, if at all, and then largely as a result of the work of investigative reporters and other non-governmental sources.  The official secrecy surrounding U.S. practices has made conditions ripe for illegality and abuse.

Several of these facilities, including the U.S. military bases at Guantanamo Bay, Cuba, and at Bagram Air Force Base in Afghanistan, are well known.  The existence of these facilities – and the fact of unlawful conduct within them – have been widely publicized and well documented.[2]  Nonetheless, there is still no or only conflicting information about how many individuals are held there, troubling information about inadequate provision of notice to families about the fact of detainees’ capture and condition, and unclear or conflicting statements about detainees’ legal status and rights.  While the International Committee of the Red Cross (icrc) has visited these facilities, their visits have been undermined in ways contrary to the letter and spirit of binding law. 

In addition, there are detention facilities that multiple sources have reported are maintained by the United States in various officially undisclosed locations, including facilities in Iraq, Afghanistan, Pakistan, Jordan, on the British possession of Diego Garcia, and on U.S. war ships at sea.  U.S. government officials have alluded to detention facilities in undisclosed locations, declining to deny their existence or refusing to comment on reports of their existence.[3]  A Department of Defense official told Human Rights First in June 2004 that while Abu Ghraib and Guantanamo’s Camp Echo were open to discussion, “as a matter of policy, we don’t comment on other facilities.”[4]  Similarly, Captain Bruce Frame, a U.S. army spokesman from centcom, the unified military command that covers Africa, the Middle East, and Central Asia, told Human Rights First only that there “may or may not” be detention centers in countries other than Iraq and Afghanistan in centcom’s area of responsibility.[5]  

The Known Unknowns

What is unknown about this detention system still outweighs what is known about it.  But facilities within it share in common key features that – while having unclear benefits in the nation’s struggle against terrorism – make inappropriate detention and abuse not only likely, but virtually inevitable. 

First, each of these facilities is maintained in either partial or total secrecy.  For the past half-century, the United States has considered itself bound by international treaties and U.S. military regulations that prohibit such blanket operating secrecy.  Yet in this conflict, the icrc – which the United States has long respected as a positive force in upholding international humanitarian law – has repeatedly sought and been denied access to these facilities.[6]  As the icrc recently noted in a public statement:

Beyond Bagram and Guantanamo Bay, the icrc is increasingly concerned about the fate of an unknown number of people captured as part of the so-called global war on terror and held in undisclosed locations. For the icrc, obtaining information on these detainees and access to them is an important humanitarian priority and a logical continuation of its current detention work in Bagram and Guantanamo Bay.[7]

Indeed, Human Rights First has been unable to identify any official list of U.S. detention facilities abroad employed in the course of the “war on terrorism.”  There is likewise no public accounting of how many are detained or for what reason they are held.  And there has been a disturbing absence of serious congressional oversight of both known and undisclosed detention facilities.[8]

Second, these facilities have thrived in an environment in which the highest levels of U.S. civilian leadership have sought legal opinions aimed at circumventing the application of domestic and international rules governing arrest and detention.  Where it would have once seemed crystal clear to military commanders and on-the-ground military custodians alike that the Geneva Conventions governed the arrest and detention of individuals caught up in the conflicts in Iraq and Afghanistan, this Administration has challenged the applicability of those rules.  In several recently leaked legal opinions from White House Counsel, and the Departments of Defense and Justice, it has become clear that some in the Administration have given a green light to the wholesale violation of these rules.[9] 

As a result, it remains unclear what legal status has been assigned to those being detained at these U.S.-controlled facilities. Are they prisoners of war, civilians who took a direct part in hostilities (who the Administration calls “unlawful combatants”), or are they suspected of criminal violations under civilian law?  The Administration has applied no clear system for defining their status.  It also is unclear under many circumstances which U.S. agency is ultimately responsible for their arrest or the conditions of their confinement. And it now seems that U.S. military and intelligence agencies are involved in their interrogation, as well as civilian or foreign government contractors to whom aspects of detention and interrogation has been outsourced.  It is likewise unclear to whom a family member or legal representative can appeal to challenge the basis for their continued detention. 

Finally, the U.S. government has failed to provide prompt notice to families of those captured that their family member is in custody, much less information about their health or whereabouts.  In such cases, the families of individuals removed to such unknown locations have had no opportunity to challenge detentions that may continue for extended periods.[10]  For example, Saifullah Paracha, according to information his family received from the icrc, has been detained at Bagram Air Force Base for more than 11 months.  His wife and children remain in the dark, not only of the reason for his detention, but also when they can expect Mr. Paracha to be released or tried.[11]  Other individuals captured more than a year ago remain in detention at other undisclosed locations.[12]  The lack of information to family members about these detainees violates U.S. legal obligations and sets a negative precedent for treatment that may directed at U.S. soldiers in the future.  It also engenders great anguish and suffering on the part of the families of detainees – no less than did the practice of “forcible disappearance” in past decades – while engendering enormous hostility toward the United States.

In the Interest of National Security

The Administration has argued that, faced with the unprecedented security threat posed by terrorist groups “of global reach,”[13] it has had to resort to preventive detention and interrogation of those suspected to have information about possible terrorist attacks.  According to the Defense and Justice Departments, a key purpose of these indefinite detentions is to promote national security by developing detainees as sources of intelligence.  And while much of what goes on at these detention facilities is steeped in secrecy, intelligence agents insist that “[w]e’re getting great info almost every day.”[14]

Whatever the value of intelligence information obtained in these facilities – and there is reason to doubt the reliability of intelligence information gained only in the course of prolonged incommunicado detention[15] – there is no legal or practical justification for refusing to report comprehensively on the number and location of these detainees – or to fail to provide the identities of detainees to the icrc, detainees’ families, their counsel, or to others having a legitimate interest in the information (unless a wish to the contrary has been manifested by the persons concerned). 

The United States is of course within its power to ask questions and to cultivate local sources of information.  And the United States certainly has the power to detain – in keeping with its authority under the Constitution and applicable international law – those who are actively engaged in hostilities against the United States, or those suspected of committing or conspiring to commit acts against the law.  But it does not have the power to establish a secret system of off-shore prisons beyond the reach of supervision, accountability, or law.

Finally, even if some valuable information is being obtained, there are standards on the treatment of prisoners that cannot be set aside.  The United States was founded on a core set of beliefs that have served the nation very well over two centuries.  Among the most basic of these beliefs is that torture and other cruel, inhuman or degrading treatment is wrong, arbitrary detention is an instrument of tyranny, and no use of government power should go unchecked.  The refusal to disclose the identity of detainees, prolonged incommunicado detention, the use of secret detention centers, and the exclusion of judicial or icrc oversight combine to remove fundamental safeguards against torture and ill-treatment and arbitrary detention.  Current practices which violate these principles must be stopped immediately.  

The abuses at Abu Ghraib underscore the reason why, since the United States’ founding, Americans have rejected the idea of a government left to its own devices and acting on good faith in favor of a government based on checks and balances and anchored to the rule of law.  As James Madison noted, “[a] popular Government without popular information, or the means of acquiring it, is but a Prologue to a Farce or Tragedy.”[16]  This nation’s history has repeatedly taught the value of public debate and discourse.  To cite one example, the United States learned this 30 years ago when a series of congressional investigations uncovered widespread, secret domestic spying by the cia, nsa, fbi, and the Army – revelations whose impact on the intelligence agencies was, in former cia Director Stansfield Turner’s words, “devastating.”[17] 

We should be clear – the United States has important and legitimate interests in gathering intelligence information and in keeping some of this information secret.  But we are not demanding the public release of any information that would compromise these interests. What we are calling for is an official accounting – to Congress and to the icrc – of the number, nationality, legal status, and place of detention of all those the United States currently holds.  We ask that all of these places of detention be acknowledged and open to inspection by the icrc, and that the names of all detainees by made available promptly to the icrc and to others with a legitimate interest in this information.  Neither logic nor law supports the continued withholding of the most basic information about the United States’ global system of secret detention.  Trust is plainly no longer enough.

Michael Posner and Deborah Pearlstein
New York
June 17, 2004