Secret Prisons—CIA “Black Sites”

The Washington Post has an extraordinary expose featured on the front page today. According to the Post, the CIA has been operating a covert prison system for nearly four years, which has included sites in eight countries, including Thailand, Afghanistan, and several in Eastern Europe.^[1] In addition, the CIA also operated a small center at Guantánamo Bay.^[2]

The global internment network depends on the cooperation of foreign intelligence services, and on keeping even basic information about the system secret from the public; only a handful of officials even know of the network, and the CIA has not even acknowledged the existence of the prisons, which are called “black sites.”^[3] Virtually nothing is known about the facilities, including what interrogation methods are used, or how decisions are made about who is sent to the prisons and how long those individuals will stay there.^[4]

The expose, however, sheds some light on why the CIA and Vice President Cheney opposed Senator John McCain’s push to include an amendment banning “cruel, inhuman or degrading treatment” of detainees to spending bill.^[5]

According to the Post, the black sites were conceived in the first months after the September 11, 2001 terror attacks, and since then, they have been a source of contention within the CIA.^[6] There are questions about the legality of the network, as well as questions about the morality and practicality of holding even unrepentant terrorists in such isolation and secrecy; furthermore, there is some question as to whether the system is diverting resources from the CIA’s unique espionage mission.^[7]

Secret prisons are illegal in the United States, which is why the CIA placed them overseas; many of the host countries, however, would likely consider the black sites illegal were they aware of them.^[8] As bits and pieces of the CIA’s activities have come to light—such as the practice known as “extraordinary rendition”^[9]—parliaments in Canada, Italy, France, Sweden, and the Netherlands have opened inquiries into the alleged CIA operations which may have taken some of those countries’ citizens and transferred them to black sites.^[10]

According to the Post’s sources, more than 100 suspected terrorists have been sent to the various black sites, and this does not include prisoners captured in Iraq.^[11] Nearly 30 were considered “major” suspects, and were held under the highest levels of secrecy; they were held in black sites located in Thailand—which closed in 2003—and on the grounds of Guantánamo Bay.^[12] The Guantánamo Bay CIA facility apparently closed in 2004.^[13] The prisoners in these facilities exist in complete isolation, sometimes being kept in dark, underground cells; no one recognizes legal rights for these suspects and no one but the CIA is allowed to talk with or even see them.^[14]

The other 70 or so suspects are considered less important, with less direct involvement in terrorism and have limited intelligence value.^[15] These suspects were taken to black sites, and then delivered to intelligence services in Egypt, Jordan, Morocco, Afghanistan, and other countries.^[16]

The covert shuttling of terrorism suspects raises serious questions about the rule of law in the United States and its obligations under various extradition treaties. Furthermore, this expose helps enlighten a quasi-extradition case concerning an individual known as Hambali that we have been following recently.

The suspects are being transported across the globe without being processed in the US legal system. Normall, most transfers of suspects are conducted through extradition hearings, deportation hearings, or through other legal mechanisms. There is no evidence presented that that is the case in these situations. Furthermore, there seems to be no attention paid to the Fifth Amendment to the US Constitution which states “[n]o person shall … in any criminal case … be deprived of life, liberty, or property, without due process of law.” Terrorism cases are certainly prosecuted under criminal laws,^[17] and even aliens are granted protection by federal habeas corpus statutes. For example, in the Guantánamo Bay detainees case, Rasul v. Bush,^[18] the Supreme Court noted that 28 U.S.C. § 2241 "draws no distinction between Americans and aliens held in federal custody, [and] there is little reason to think that Congress intended the geographical coverage of the statute to vary depending on the detainee's citizenship.”^[19] Therefore, aliens were entitled to invoke the federal courts’ authority.^[20]

The problem for the detainees at the various black sites, however, is the fact that, unlike Guantánamo Bay, there is little evidence that the those secret prisons are within the United States’ territorial control.

This is the quandary facing us as we learned a couple of weeks ago about the terrorism suspect known only as “Hambali.”

Hambali
Hambali is currently being detained by the United States, which is a source of tension between the United States and Indonesia.^[21] Hambali was born in Indonesia, and is suspected of being Osama bin Laden’s key link to Southeast Asia, and he has been in US custody since his arrest in Thailand in 2003.^[22] Indonesia has sought direct access to Hambali, both to question him and to try him for his suspected role in the 2002 bombing on Bali.^[23] American authorities have allowed Indonesia to submit written questions, but they have not allowed that country to have direct access.^[24] On October 18, in response to criticism that the US was not sharing enough information with Indonesia, it was announced that the US would return Hambali to Indonesia.^[25] However, no time-frame was provided, and the Indonesian government is growing impatient. “The longer Hambali is held in the US, the less information that we can get,” said the Indonesian Foreign Ministry Spokesman, Marty Matalegawa.^[26] The United States, however, is maintaining that his interrogation is not complete.^[27]

Any transfer of Hambali to Indonesia will be done outside a bilateral extradition treaty because one does not exist between the two countries. There isn’t even a “Mutual Legal Assistance Treaty” between the two countries.^[28] Furthermore, it is unlikely, based on the Washington Post’s article, that the process will be made public, and that Hambali will be able to challenge his transfer.

The Washington Post’s report has already raised indignation in countries mentioned in the article, including Thailand, which says “[t]here is no fact in the unfounded claims,” and that Thailand was probably mentioned because it helped catch Hambali.^[29]

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[1] Dana Priest, CIA Holds Terror Suspects in Secret Prisons, Wash. Post, Nov. 2, 2005, available here.
[2] Id.
[3] Id.
[4] Id. One should note, too, that the National Security Agency’s existence was denied for many years, to the point of its acronym—NSA—supposedly standing for “No Such Agency,” or “Never Say Anything.” See, e.g., Bruce Schneier, Book Review: “Body of Secrets” by James Bamford, Salon.com, Apr. 25, 2001, available here. Today, however, the NSA has a website, and even a kid’s page, where you can meet the “CryptoKids.”
[5] See, e.g., Tim Golden, et al., Detainee Policy Sharply Divides Bush Officials, NY Times, Nov. 2, 2005, available here.
[6] Priest, supra note 1.
[7] Id.
[8] Id.
[9] See, e.g., Dana Priest, et al., U.S. Decries Abuse but Defends Interrogations, Wash. Post, Dec. 26, 2002, available here.
[10] Priest, supra note 1.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] See 18 U.S.C. § 2331 et seq.
[18] 542 U.S. 466, 124 S. Ct. 2686 (2004).
[19] 124 S. Ct. at 2696.
[20] Id.
[21] U.S. Says Sharing Hambali Data with Southeast Asia, Reuters, Oct. 17, 2005, available here.
[22] Id.
[23] Id.
[24] Id.
[25] U.S. Hopes to Return Militant Hambali to Indonesia, Reuters, Oct. 18, 2005, available here.
[26] Govt to Continuously Strive for Return of Hambali from America, Antara News, Oct. 27, 2005, available here.
[27] Id.
[28] We have previously discussed MLATs here, in connection with China, which also does not have a bilateral extradition treaty with the United States.
[29] Joanne Allen, CIA Holds Captives in Secret Prisons Abroad—Report, Reuters, Nov. 2, 2005, available here.