Crimesof War

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 replacement text 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.