Extrajudicial prisoners of the United States
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Extrajudicial prisoners of the United States, in the context of the early twenty-first century War on Terrorism, refers to foreign nationals the United States detains outside of the legal process required within United States legal jurisdiction. In this context, the U.S. government was accused of maintaining covert interrogation centers, called black sites, operated by both known and secret intelligence agencies. Such black sites were later confirmed by reports from journalists, investigations and from men who had been imprisoned and interrogated there, and later released.
Of these prisoners being held by the US, some were suspected of being from the senior ranks of al Qaeda, referred to in U.S. military terms as "high value detainees." According to the Swiss senator Dick Marty's reports on Secret Detentions and Illegal Transfers of Detainees involving Council of Europe Member States, about a hundred persons had been kidnapped by the CIA on European territory and subsequently rendered to countries where they may have been tortured.
The Secretary of Defense, Donald Rumsfeld, had described the men detained in Camp Delta at Guantánamo Bay, Cuba, as "the worst of the worst.". But, before September 2006, many of those detainees suspected of having the highest intelligence value were not detained at Guantanamo, but were held at CIA "black sites," secret prisons in Eastern Europe and other countries, including Afghanistan.
In August 2010, it was reported that four high-value detainees: Abu Zubaydah, Abd al-Nashiri, Ramzi bin al-Shibh, and Mustafa al-Hawsawi, had first been transferred to Guantanamo on September 24, 2003. They were held at "Strawberry Fields", a secret camp in the complex constructed for their detention. Worried that a pending Supreme Court decision on habeas corpus rights might go against the Bush administration and compel releasing the men's names and other details, the CIA took back custody of the four men and moved them out of Guantanamo on March 27, 2004. 
The United States Supreme Court ruled in Rasul v. Bush (2004) that detainees at Guantanamo Bay detention camp had the habeas corpus right to challenge their detentions before an impartial tribunal. As a result, the US continued to hold many ghost detainees outside Guantanamo Bay and the United States in order to avoid any review of their cases.
These four men and other high-value CIA detainees were not transferred again to military custody at Guantanamo until September 2006. At that time, the Bush administration was assured of passage by Congress of the Military Commissions Act of 2006, which included provisions preventing detainees from using habeas corpus petitions outside the newly authorized system of military tribunals.
Ghost detainees are extrajudicial prisoners whose identities have not been revealed and whose families (and frequently, governments) have not been informed of their status. They are deprived of any Habeas Corpus rights. Ghost detainees' identities, and capture, have been kept secret. As such they are a subset of extrajudicial prisoners, which includes all the detainees who were held in Guantanamo, etc.
Suspects held by US civilian intelligence agencies
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On September 6, 2006, American President George W. Bush confirmed, for the first time, that the CIA had held "high-value detainees" in secret interrogation centers. He also announced that fourteen senior captives were being transferred from CIA custody to military custody at Guantanamo Bay. He said that these fourteen captives could expect to face charges soon before Guantanamo military commissions.
Critics, and elements of the FBI, had long speculated that the captives held in the secret interrogation centres had been subjected to abusive interrogation techniques, or torture. They said that evidence derived from such coercive interrogations was not admissible in court and could not be used to prosecute the men. Transfer of these fourteen men were said to have emptied the CIA's secret interrogation centers. Critics pointed out that Bush had not announced that the CIA's secret interrogation centers were being closed.
|10012||Ahmed Khalfan Ghailani|
|10013||Ramzi bin al-Shibh||
|10014||Waleed Muhammad bin Attash||
|10015||Abd al-Rahim al-Nashiri||
|10017||Abu Faraj al-Libi|
|10018||Ali Abdul Aziz Ali|
|10021||Mohamad Farik Amin||
|10022||Mohammed Nazir Bin Lep|
|10023||Gouled Hassan Dourad||
|10024||Khalid Sheikh Mohammed|
Other captives in custody
American intelligence officials have made public the names of some of the suspects the CIA has reported to have been held. The capture of other detainees is not acknowledged. According to the US military, this is in order to spread disorder among their opponents.
|Abd al-Salam Ali al-Hila|
|Abd al-Hadi al-Iraqi|
|Ibn al-Shaykh al-Libi||
|Abdul Rahim al-Sharqawi||
|Mohammed Omar Abdel-Rahman||
|Hassin Bin Attash|
|Mohammed Naeem Noor Khan|
Legal status of detainees
Shortly after the Invasion of Afghanistan, the Bush administration announced a policy that combatants captured "on the battlefield" in Afghanistan would not be afforded the protections of POW status as described in the Geneva Conventions. This policy triggered debate both within and outside of the US government. The Bush administration argument in favor of this policy was that the Geneva Conventions signed by the US protected only the fighters of recognized states, and al Qaeda fighters did not qualify. They argued that the Taliban was not a legitimate government either. They characterized Afghanistan as a "failed state," one without a legitimate government.
Classifying captives as illegal combatants
The Bush administration calls these captives "illegal combatants" or "unlawful combatants." These terms are not explicitly used in the Geneva Conventions. But, the third Geneva Convention, signed prior to World War II, defines "lawful combatant." The Convention obliges signatories to afford captured lawful combatants significant rights and protections. Such captives are entitled to be classified as Prisoners of War (POW). Internal critics within the US military and US government argue that failing to afford POW protections to combatants captured in the global war on terror would endanger American soldiers when they were captured in current and future conflicts. Other critics argue that classifying all combatants as illegal combatants is in violation of article 5 of the third Geneva Convention, which describes how a captor should treat combatants who are suspected of violating the Geneva Conventions such that they strip themselves of its protections. Article 5 says that combatants suspected of violations of the Conventions are to be afforded POW protection until the captors have convened a "competent tribunal."
The Bush administration has expanded the criteria for classifying captives as illegal combatants. Individuals captured around the world are now classified as such if US intelligence officials believe they have sufficient evidence to tie the individual to terrorism.
In Rasul v. Bush (2004), the US Supreme Court ruled that detainees held by the United States did have the habeas corpus right to challenge their detentions before a competent tribunal. mount legal challenges within the US judicial system.
Use of interrogation techniques
The US intelligence community has debated what techniques should be used on the detainees. The debate was triggered over the interrogation of Ibn al-Shaykh al-Libi, described as the first senior al Qaeda captive. It was reported that initially his interrogation was being conducted by the FBI because they had the most experience interrogating criminal suspects. Their interrogation approach was based on building rapport with suspects and they did not use coercive techniques. They argued that coercive techniques produced unreliable false confessions, and that using coercive techniques would mean that the evidence they gathered could not be used by the prosecution in a trial in the US judicial system.
Fear and desire for actionable intelligence led the administration to legal opinions (the Torture Memos, including the Bybee memo) by the Office of Legal Counsel, United States Department of Justice, issued to the CIA in August 2002 authorizing the use of 12 enhanced interrogation techniques (since 2009, these have been legally defined as torture and prohibited from use) with detained suspects.
Similarly, on March 14, 2003, five days before the US started its 2003 invasion of Iraq, the OLC issued a memo to William J. Haynes, General Counsel of the United States Department of Defense, concluding that federal laws against the use of torture and other coercion did not apply to interrogations overseas. In reaction to the release of the abuse pictures from Abu Ghraib in Iraq in April and May 2004, and the leak that summer of the Bybee memo, the administration advised agencies to suspend actions based on those memos. CIA suspended the use of enhanced interrogation techniques.
Legal justification for the use of "enhanced interrogation techniques"
Secretary Rumsfeld assured the world that the detainees held in Guantánamo Bay were going to be treated in a manner consistent with the treatment of Geneva Convention POWs. In 2004, confidential memos surfaced that discussed the limits to how much pain, discomfort and fear could be used in the interrogation of detainees in the global war on terror. The memos showed that debate within the Bush administration had been resolved in favor of what was later legally determined to be torture.
Legislative challenges to interrogation policy
In 2005, US Senator John McCain, a former POW from the Vietnam War, attached a passage to a military spending bill that would proscribe inhumane treatment of detainees and restrict US officials to use only the interrogation techniques in the US Army's field manual on interrogation. Ninety of the one hundred Senators supported this amendment.
On Thursday, October 20, 2005, Vice President Dick Cheney proposed a change to McCain. Cheney tried to get McCain to limit the proscription to just military personnel, thus allowing CIA personnel the freedom to use harsher techniques. McCain declined to accept Cheney's suggestion.
U.S. Government denial of allegations of mistreatment
The United States government, through the State Department, makes periodic reports to the United Nations Committee Against Torture. In October 2005, the report focused on pretrial detention of suspects in the war on terrorism, including those held in Guantánamo Bay and Afghanistan. This was the first official response of the U.S. government to allegations that prisoners were mistreated at Guantánamo Bay detention camp. The report denies the allegations. However, the report does not address detainees held elsewhere by the CIA. Recently, the Director of the CIA, Michael Hayden has acknowledged that some detainees had been subject to waterboarding, in accordance with several OLC (Office of Legal Counsel) memos. General Hayden states that in February 2008, waterboarding was not part of the authorized interrogation techniques for U.S. agents.
Geneva Conventions compliance
On July 20, 2007, President Bush issued an executive order banning torture of POWs by intelligence officials. Amnesty International points out that the Bush administration has narrowly defined torture under the Bybee memo, at the time, the only known one of the Torture Memos. While US is a signatory to the Geneva Convention, it has failed to ratify that portion of the Geneva Convention, Protocol I, which would grant such persons POW status as the detainees at Guantanamo.[clarification needed] The US is one of only six countries that have not.
Location of the suspects held by US civilian intelligence agencies
|USS Bataan||John Walker Lindh, a United States citizen, was held for two months in a secure facility aboard the USS Bataan. Human rights critics[who?] believe he was one of half a dozen high-value detainees held there.|
|The Salt Pit||
- Arbitrary arrest and detention
- Command responsibility
- Detainees in Iraq
- Khalid El-Masri, a German citizen wrongly detained by the CIA
- Maher Arar
- Matt Apuzzo, Adam Goldman (2010-08-07). "AP Exclusive: CIA flight carried secret from Gitmo". Associated Press. mirror
- Scott Horton (2010-08-06). "Three-Card Monte at Gitmo". Harper's Mmagazine. Retrieved 2010-08-11. mirror
- "Detainee Biographies" (PDF). Office of the Director of National Intelligence. September 6, 2006. Retrieved April 18, 2007.
- Bush confirms existence of secret CIA prisons for high-value terror detainees, The Jurist, September 6, 2006
- Bush Acknowledges Existence of Secret CIA Prisons, Voice of America, September 6, 2006
- document "The United States’ "Disappeared", The CIA’s Long-Term "Ghost Detainees""]. Human Rights Watch. p. 7. Retrieved 2008-08-26.
- Peter Finn and Julie Tate, "CIA Says It Misjudged Role of High-Value Detainee Abu Zubaidah, Transcript Shows", Washington Post, 16 June 2009, accessed 21 January 2013
- FBI NY announces conviction of Uzair Paracha, November 25, 2005
- U.S. Decries Abuse but Defends Interrogations: 'Stress and Duress' Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities, Washington Post, December 26, 2002
- "List of 'Ghost Prisoners' Possibly in CIA Custody". Media with Conscience. 2005-05-30.
- "Al Qaeda-Iraq Link Recanted: Captured Libyan Reverses Previous Statement to CIA, Officials Say". Washington Post. 2004-08-01. Retrieved May 2, 2010.
- Al-Qaida killed/captured , MSNBC
- Wikileaks cable, SUBJECT: AL-MASRI CASE -- CHANCELLERY AWARE OF USG CONCERNS, February 2007
- Priest, Dana (2004-06-27). "CIA Puts Harsh Tactics On Hold: Memo on Methods Of Interrogation Had Wide Review". Washington Post. Retrieved May 2, 2010.
- Smith, R. Jeffrey; White, Josh (2005-10-25). "Cheney Plan Exempts CIA From Bill Barring Abuse of Detainees". Washington Post. Retrieved May 2, 2010.
- Priest, Dana (2005-12-04). "Wrongful Imprisonment: Anatomy of a CIA Mistake: German Citizen Released After Months in 'Rendition'". Washington Post.
- Morgan, David (2007-07-20). "Bush orders CIA to comply with Geneva Conventions". Reuters. Retrieved 2007-07-20.
- "CIA accused of detaining innocent man: If the agency knew he was the wrong man, why was he held?", MSNBC, April 21, 2005
- Jane Mayer, "Outsourcing torture", The New Yorker, February 14, 2005
- "A Tortured Debate", Newsweek, June 21, 2005
- "We Don't Want a Hanoi Hilton", Washington Post, October 27, 2005
- "CIA Holds Terror Suspects in Secret Prisons", Washington Post, November 2, 2005
- "European Commission to Investigate Reports of Secret CIA Jails", Washington Post, November 3, 2005
- "Sources Tell ABC News Top Al Qaeda Figures Held in Secret CIA Prisons", ABC News December 5, 2005
- "A list of 12 high-value targets housed by the CIA", ABC News, December 5, 2005
- "CIA 'closes terror prisons'", news.com.au, December 6, 2005
- "Victims Could Sue for Human Rights in European Court of Justice", Der Spiegel December 6, 2005
- Center for Constitutional Rights website, representing detainees and working against other injustices
- "Tortured Justice: Using Coerced Evidence to Prosecute Terrorist Suspects" (2008), Human Rights First
- "In Pursuit of Justice; Prosecuting Terrorism Cases in the Federal Courts" (2009), Human Rights First
- "Undue Process: An Examination of Detention and Trials of Bagram Detainees in Afghanistan in April 2009" (2009), Human Rights First