| Shortly
after the first CIA paramilitary teams were spirited into Afghanistan’s
Panjshir Valley in late September 2001 to help topple the Taliban
regime, a secretive group of lawyers at CIA and the Justice Department’s
Office of Legal Counsel began an insurrection of their own. Their
aim was to reinterpret long-standing international agreements on
the detention and interrogation of prisoners in order to sanction
an off-shore CIA prison system beyond the reach of any court, and
give the agency’s interrogators freedom to extract information
from terrorist suspects in nearly any manner they deemed necessary.
The system the CIA put in place was part of what has become the
largest covert action program since the height of the Cold War—known
at the agency by the initials GST. Its overall purpose is to kill,
capture or otherwise neutralize al-Qaeda terrorists. It is wholly
separate from the military’s counter- terrorism programs and
has its own distinct rules and legal authorities.
A secret for nearly five years, the CIA’s program was acknowledged
by President Bush in September 2006, when he announced that fourteen
“high-value” terrorist suspects—including the
alleged mastermind of 9/11, Khalid Sheikh Mohammed—were being
transferred from CIA custody in secret prisons overseas to Guantanamo
Bay. President Bush said the people who had been held in the program
were “dangerous men with unparalleled knowledge about terrorist
networks and their plans for new attacks” and that “the
security of our nation and the lives of our citizens depend on our
ability to learn what these terrorists know.” Having a CIA
program for questioning terrorists would “continue to be crucial
to getting life-saving information” from any suspects captured
in the future, the President added.
Although little beyond the existence of the program has been officially
revealed, its broad outlines and the legal arguments used to justify
it have become known. The program has its source in two official
decisions. First, three days after the attacks of September 11,
Congress passed a war resolution authorizing the president to use
“all necessary and appropriate force against those nations,
organizations, or persons he determines planned, authorized, committed,
or aided the terrorist attacks.” Congress, in effect, was
declaring war against al-Qaeda.
Three days later, on September 17, President Bush signed a classified
presidential finding—as required by the National Security
Act of 1947—to authorize a covert action program against al-Qaeda.
According to the rules governing intelligence operations, covert
actions may not violate the U.S. Constitution or U.S. law, including
treaties the United States has signed. But they are allowed to violate
the laws of the foreign countries in which they take place, according
to intelligence experts.
The initial focus of the CIA’s counterterrorist program, in
the months after September 11, was to kill al-Qaeda leaders and
question suspects in order to gain information about a possible
imminent second attack on the United States. As years passed without
another attack on U.S. soil, the aim of preventing an incipient
terrorist operation was overtaken by the desire to acquire knowledge
about al-Qaeda’s strategic plans, about functioning terrorist
cells, about illicit financing and logistics networks, and about
the underground flow of potential suicide bombers into Europe, Iraq
and elsewhere.
The CIA had no trained interrogators and no facilities to detain
suspects when al-Qaeda struck. In the first few months after the
attack, as CIA operatives took custody of suspects during the war
in Afghanistan, the agency scrambled to find secure and covert locations
where they could be held. Initially, prisoners were detained in
Afghanistan. Later, prisons were established in several Eastern
European democracies, in Thailand, and within the U.S. military’s
Guantanamo Bay compound in Cuba, according to current and former
intelligence officials and other sources. The CIA detention centers
in Guantanamo and Thailand were closed down some time ago, and detainees
held in the Eastern European prisons were relocated shortly after
the Washington Post disclosed the existence of prisons there in
November 2004.
Intelligence officials argue that in order to gather information
from recalcitrant al-Qaeda operatives, the agency needs to be able
to hold and interrogate suspects for as long as necessary, without
the restrictions imposed by the American legal system or even by
the review tribunals established for Guantanamo Bay. About 100 prisoners
have gone through these CIA-only “black sites” with
approximately 30 prisoners being held at any one time.
It would be illegal for the government to hold prisoners in such
isolation in the United States, which is why the CIA placed them
overseas, according to former and current intelligence officials
and other government sources. These experts said the CIA’s
internment practices also would be considered illegal under the
laws of several host countries, such as those in Eastern Europe,
where detainees have the right of access to a lawyer and the right
to defend themselves against allegations of wrongdoing. The president’s
covert action finding, however, allows the CIA to break the laws
of foreign countries and to deny the actions if disclosed.
The legality of the secret prisons under international law is highly
questionable, according to international law experts and human rights
lawyers. The United States claims that its campaign against al-Qaeda
is an armed conflict, in which case it would be bound by the customary
law of armed conflict; this arguably includes a prohibition on enforced
disappearance. If carried out in a widespread or systematic way,
either during armed conflict or peace, enforced disappearances are
a crime against humanity. Finally, the United States is bound at
all times by fundamental norms of human rights, including the right
against prolonged arbitrary detention, legal experts say.
The interrogation of suspects held in this secret system proceeded
in an improvised way. Teams of polygraphers and psychologists were
put together to question alleged terrorists picked up around the
world. After the CIA captured the al-Qaeda operations chief Abu
Zubaida in March 2002, officials pushed for explicit guidelines
that would allow them to use highly coercive methods against so-called
“high value detainees.” In response to CIA and White
House requests, the Justice Department’s Office of Legal Counsel
issued authorization for a series of “enhanced interrogation
techniques.”
The EITs include “waterboarding,” meant to simulate
drowning, “water dousing,” soaking detainees with water
in cold rooms, prolonged stress and duress positions, liquid diets,
sleep and light deprivation, noise and light bombardment, extreme
isolation and other measures which are often used in combination
with one another.
In his September 2006 speech, President Bush said the procedures
used by the CIA were “tough, and they were safe, and lawful,
and necessary.” However they went far beyond anything that
the United States has previously claimed the right to use against
captives during war or at any other time. At least some of the practices
used would clearly violate the Geneva Conventions, but the administration
argued that the Geneva Conventions did not protect al-Qaeda fighters
picked up in Afghanistan or outside it. In February 2002, President
Bush had directed members of the U.S. military to treat detainees
humanely—but this directive was deliberately crafted in such
a way that civilian intelligence agents were not bound by it.
As a party to the Convention against Torture, the United States
is prohibited from using torture at any time. However in a series
of internal memos the Bush administration redefined torture in an
extremely narrow way. It said to constitute torture, the treatment
“must be equivalent in intensity to the pain accompanying
serious physical injury, such as organ failure, impairment of bodily
function, or even death.” For an interrogation technique to
rise to the level of mental torture, the Justice Department argued,
the psychological harm must last “months or even years.”
Although the memo was withdrawn after it became public, a replacementtext
said that none of the Justice Department’s initial conclusions
regarding the legality of specific techniques would be different
under the revised standards.
The Torture Convention also bans States from practicing cruel, inhuman
or degrading treatment, often referred to as “torture lite.”
But the administration declared that this provision of the Convention
did not apply to the treatment of foreign persons outside the United
States. This was an unprecedented interpretation of the law that
won little support outside the administration and was disavowed
by the former State Department lawyer who had submitted the Torture
Convention to Congress in 1989.
To close this loophole, Republican Senator John McCain—a former
Vietnam prisoner of war—introduced legislation in 2005 that
banned all cruel and inhuman treatment of detainees without any
geographical limit. After initially campaigning against the measure,
the White House eventually signed it into law in December 2005.
However President Bush issued a signing statement that said he would
construe the law in accordance with his authority as Commander-in-Chief.
Bush and his lawyers claim that the President has the authority
to override statutes if he deems it necessary to national security.
In June 2006, the administration received a further setback when
the U.S. Supreme Court issued its decision in the Hamdan case. The
Court declared that the conflict with al-Qaeda was covered by Common
Article 3 of the Geneva Conventions, which forbids cruel, humiliating
and degrading treatment of captives. This rule would place greater
restrictions on the treatment of prisoners than the McCain Amendment.
Following the Court’s decision, Congress passed a statute
at the administration’s request that would limit the enforceability
of this part of the Geneva Conventions in American courts.
Beyond the CIA’s undisclosed sites, a second tier of prisons
exists which are run by foreign security services in their own countries.
Experts believe there are at least 70 suspects being housed in them
who are thought to have limited intelligence value. For the most
part, prisoners were transported by the CIA to these prisons through
the process of “rendition.” Egypt, Jordan, Morocco and
Afghanistan are among the countries known to hold and interrogate
such prisoners, but there are others.
The legal justification for renditions has never been well established
or disclosed. Before 9/11, the practice was used to “render”
fugitives abroad to justice, meaning into a U.S. or foreign court.
These days, however, “extraordinary” renditions are
used to transfer subjects into either CIA-run or foreign-run prisons,
usually without any legal proceedings. All renditions are done with
the consent of the foreign intelligence service involved. There
is doubt among some CIA lawyers that this type of rendition is legal.
Under U.S. law and the Torture Convention, the government may not
send anyone to a country where he or she is more likely than not
to face torture or cruel treatment. The CIA has repeatedly transported
prisoners to countries that the State Department has criticized
for abusing prisoners in detention.
To comply—at least on paper—with anti-torture laws,
the CIA’s Office of General Counsel requires a verbal assurance
from the foreign intelligence service that the detainee will be
treated humanely, according to several recently retired CIA officials
familiar with such transfers. Some of these officials say the assurances
are ineffective and impossible to monitor. One CIA officer involved
with renditions called the assurances from other countries “a
farce.”
The U.S. war against Iraq stands apart from the rest of America’s
counter-terrorist operations because the administration never denied
that the Geneva Conventions applied to all captured Iraqi fighters
and civilians. However, either by deliberate military policy or
by accident, this distinction was often forgotten in the field.
Interrogation tactics approved for use on terrorist suspects in
Guantanamo appear to have migrated to Iraq, as did the practice
of “ghosting” certain detainees for long periods of
time. These tactics were allowed to take hold admist the general
chaos and breakdown of discipline within military units that followed
the seizure of Baghdad by U.S. and coalition forces.
At the request of the CIA, a number of prisoners were taken out
of Iraq in contravention of Article 49 of the Fourth Geneva Convention,
which forbids the transfer of protected civilians from occupied
territory. One case involved an Iraqi citizen named Hiwa Abul Rahman
Rashul, who was captured by Kurdish forces in the summer of 2003
and turned over to the CIA, which whisked him to Afghanistan for
interrogation. The Justice Department, however, ruled he was indeed
a “protected person” under Geneva. The CIA promptly
brought him back to Iraq. But then CIA director George Tenet asked
Defense Secretary Donald Rumsfeld not to give Rashul a number and
to hide him from the ICRC. Rumsfeld agreed to the request, he said
at a news conference a year later. Rashul was then lost in the system
for seven months.
Asked to explain the authority under which he complied with Tenet’s
request or under what authority he could keep Rashul hidden for
so long, Rumsfeld responded: “We know from our knowledge that
[Tenet] has the authority to do it.” In this case, as throughout
its counter-terror operations, the administration was purposefully
evasive in explaining the legal rationale for the unusual activities
it has undertaken. Officials have repeatedly threatened legal action
against government professionals and reporters who have brought
these activities to the public’s attention.
(See Afghanistan; Guantanamo; terrorism.)
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