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E. Secret detention and the United States administration of President Obama
V. the nature and scope of secret detention practices in relation to contemporary regional or domestic counter-terrorist efforts

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E. Secret detention and the United States administration of President Obama

In its response to the questionnaire sent by the Experts, the United States of America stated that :

“The Obama Administration has adopted the following specific measures:

Instructed the CIA to close as expeditiously as possible any detention facilities that it currently operated as of January 22, 2009 and ordered that the CIA shall not operate any such detention facility in the future.

Ordered that the Guantanamo Bay detention facility be closed as soon as practicable.

Required the International Committee of the Red Cross (ICRC) to be given notice and timely access to any individual detained in any armed conflict in the custody or under the effective control of the United States Government, consistent with Department of Defense regulations and policies.

Ordered a comprehensive review of the lawful options available to the Federal Government with respect to detention of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations.

Reaffirmed that all persons in U.S. custody must be treated humanely as a matter of law.

Mandated that detention at Guantanamo conform to all applicable laws governing conditions of confinement, including Common Article 3 of the Geneva Conventions, and directed a review of detention conditions at Guantanamo to ensure such compliance.

Ordered a review of U.S. transfer policies to ensure that they do not result in the transfer of individuals to other nations to face torture or otherwise for the purpose, or with the effect, of undermining or circumventing the commitments or obligations of the United States to ensure the humane treatment of individuals in its custody or control. The resulting Task Force on transfer practices recommended to the President in August that (1) the State Department be involved in evaluating all diplomatic assurances; (2) the Inspectors General of the Departments of State, Defense, and Homeland Security prepare an annual report on all transfers relying on assurances; and (3) mechanisms for monitoring treatment in the receiving country be incorporated into assurances.

Announced the transfer of at least 7 detainees from military custody to U.S. criminal law enforcement proceedings, and transferred 25 detainees to date to third-countries for repatriation or resettlement.

Worked with Congress to revise U.S. laws governing military commissions to enhance their procedural protections, including prohibiting introduction of evidence obtained as a result of cruel, inhuman, or degrading treatment.

Expanded the review procedures for detainees held by the Department of Defense in Afghanistan in order to enhance the transparency and fairness of U.S. detention practices. Detainees are permitted an opportunity to challenge the evidence that is the basis for their detention, to call reasonably available witnesses, and to have the assistance of personal representatives who have access to all reasonably available relevant information (including classified information). Proceedings generally shall be open, including to representatives of the ICRC, and possibly to non-governmental organizations.

Established more tailored standards and rigorous procedures for evaluating assertions of the State secrets privilege, including establishing an internal accountability mechanism, ensuring that the privilege is never asserted to avoid embarrassment or conceal violations of law, and creating a referral mechanism to the Office of Inspector General where the privilege is asserted but there is credible evidence of a violation of law. These standards and procedures were established in order to strike a better balance between open government and the need to protect vital national security information.

The Department of Justice initiated a preliminary criminal investigation into the interrogation of certain detainees.
These measures cumulatively seek to reaffirm the importance of compliance with the rule of law in U.S. detention practices, to ensure U.S. adherence to its international legal obligations, and to promote accountability and transparency in this important area of national security policy.”

The Experts welcome these commitments. They believe however that clarification is required as to whether detainees were held in CIA “black sites” in Iraq and Afghanistan or elsewhere when President Obama took office, and, if so, what happened to the detainees who were held at that time. Also, the Experts are concerned that the Executive Order which instructed the CIA “to close any detention facilities that it currently operates” does not extend to the facilities where the CIA detains individuals on “a short-term transitory basis”.^³⁴² The Order also does not seem to extend to detention facilities operated by the Joint Special Operation Command.

The Experts also welcome in particular the new policy which was implemented in August 2009, under which the military must notify the ICRC of the detainees’ names and identification number within two weeks of capture.^³⁴³ Nevertheless, there is no legal justification for this two-week period of secret detention. According to the Third Geneva Convention, prisoners of war are to be documented, and their whereabouts and health conditions made available to family members and to the country of origin of the prisoner within one week.^³⁴⁴ The Fourth Geneva Convention (governing the treatment of civilians) establishes virtually identical procedures for the documentation and disclosure of information concerning civilian detainees.^³⁴⁵ Furthermore, it is obvious that this unacknowledged detention for one week can only be applied to persons that have been captured on the battlefield in a situation of armed conflict. This is an important remark, as the Experts noted with concern news reports which quoted current government officials saying that “the importance of Bagram as a holding site for terrorism suspects captured outside Afghanistan and Iraq has risen under the Obama administration, which barred the Central Intelligence Agency from using its secret prisons for long-term detention”.^³⁴⁶

The situation at Bagram (the Bagram Theater Internment Facility) remains of great concern. In March 2009, US District Court Judge John D. Bates ruled that the habeas corpus rights granted to the Guantanamo detainees by the US Supreme Court in June 2008 extended to non-Afghan detainees who had been seized in other countries and rendered to Bagram, because “the detainees themselves as well as the rationale for detention are essentially the same”, and because the review process established at the prison “falls well short of what the Supreme Court found inadequate at Guantánamo”.The four petitioners were among the 94 prisoners that Assistant Attorney General Stephen G. Bradbury admitted were held in CIA custody between 2001 and 2005. Judge Bates found that, in holding detainees at Bagram not as prisoners of war, but as “unlawful enemy combatants,” the Bush administration had put in place a review process, the Unlawful Enemy Combatant Review Board (UECRB), in which “Detainees cannot even speak for themselves; they are only permitted to submit a written statement. But in submitting that statement, detainees do not know what evidence the United States relies upon to justify an ‘enemy combatant’ designation – so they lack a meaningful opportunity to rebut that evidence”.^³⁴⁷

This ruling has been appealed by the current United States administration, even though Judge Bates conceded that habeas rights did not extend to Afghan detainees held at Bagram, nor to Afghans seized in other countries and rendered to Bagram. In its appeal against Judge Bates’ ruling, the United States administration notified the court that it was introducing a new review process at Bagram, “modifying the procedures for reviewing the status of aliens held by the Department of Defense at the Bagram Theater Internment Facility”.^³⁴⁸ However, the Experts are concerned that the new review system fails to address the fact that detainees in an active war zone should be held according to the Geneva Conventions, screened close to the time and place of capture if there is any doubt about their status, and not be subjected to reviews at some point after their capture to determine whether they should continue to be held. The Experts are also concerned that the system appears to specifically aim to prevent US courts from having access to foreign detainees captured in other countries and rendered to Bagram. While the Experts welcome that the names of 645 detainees at Bagram are now known, they urge the United States Government to provide information on the citizenship, length of detention and place of capture of all detainees currently held within Bagram Air Base.

V. THE NATURE AND SCOPE OF SECRET DETENTION PRACTICES IN RELATION TO CONTEMPORARY REGIONAL OR DOMESTIC COUNTER-TERRORIST EFFORTS

On a global scale, secret detention in connection with counter-terrorist policies remains a serious problem, either through the use of secret detention facilities similar to those described in the previous section; through declarations of a state of emergency, which allow prolonged secret detention; or through forms of “administrative detention,” which also allow prolonged secret detention.

The principal objective of this section is to illustrate the extent to which the use of secret detention in the context of the fight against terrorism has been a global practice. The cases and situations referred to in this section are therefore not exhaustive but serve the purpose of substantiating the existence of secret detention in all regions of the world within the confines of the definition presented earlier. Notwithstanding this, the Experts have also been made aware of practices of secret detention which are beyond the scope of the present report.

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E. Secret detention and the United States administration of President Obama