The New CIA Gulag of Secret Foreign Prisons: Why it Violates Both Domestic and International Law

By JENNIFER VAN BERGEN

Monday, Nov. 07, 2005

The Washington Post recently reported that there now exists a secret overseas network of CIA-run prisons - called "black sites." According to the Post, "several former and current intelligence officials and other U.S. government officials" claim the network was created in order to avoid U.S. laws that prohibit such detentions. But the law, it turns out, cannot be so easily avoided.

Indeed, such a detention system may violate both domestic and international laws. For this reason, it raises questions of legal liability, and accountability, not just for those who maintain these facilities, but also for those who ordered or sanctioned their creation.

As I explain below, secret overseas detentions by U.S. officials are barred by international law, by the extension of U.S. law to official conduct overseas, and by the domestic laws that incorporate or execute international treaties.

International Law: How It May Apply to the Secret CIA Gulag

Common Article 3 (CA3) of the 1949 Geneva Conventions, which has been described as "'a convention within a convention' to provide a general formula covering respect for intrinsic human values that would always be in force, without regard to the characterization the parties to a conflict might give it," protects any detainee under any circumstances. The denial of its protections is therefore a grave breach of Geneva and a war crime under the United States' War Crimes Act of 1996.

CA3 prohibits taking hostages, and it prohibits outrages upon personal dignity, including humiliating and degrading treatment. It also prohibits the passing of sentences and carrying out of executions without a previous judgment by a regularly constituted court affording all judicial guarantees.

Additionally, transfer of any person who is not a prisoner of war out of occupied territory is a grave breach of the Geneva Conventions, as well as a war crime. Deportation is also a crime against humanity under the Nuremberg Charter.

Enforced disappearances are also barred by international law, as are arbitrary detentions. According to Article 7 of the Declaration on the Protection of All Persons from Enforced Disappearances, adopted by the U.N. General Assembly in 1992, "no circumstances whatsoever" may justify enforced disappearances.

A U.N. Working Group on Arbitrary Detention declared that U.S. detentions without status determinations constitute arbitrary detentions in violation of the Third Geneva Convention. The Parliamentary Assembly of the European Council resolved in 2003 that the detentions in Guantanamo, Afghanistan, and elsewhere were unlawful.

International law also bars incommunicado detention, even when it does not constitute "disappearance." The Restatement (Third) of Foreign Relations Law states that both disappearances and prolonged arbitrary detentions violate international law.

The Geneva Conventions provide that prisoners' whereabouts must be documented and made available to their family and governments, and that the International Committee of the Red Cross must have access to all detainees and places of detention -- except where prevented by military necessity, but even then, only under exceptional and temporary circumstances.

The Geneva Convention also prohibits holding prisoners in "close confinement." Holding detainees "in dark, sometimes underground cells," according to the Post, is clearly prohibited.

It could also be argued that prolonged incommunicado detention is inhumane and violates the International Covenant on Civil and Political Rights, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The U.S. reservations to the Torture Convention require compliance with the Eighth Amendment's prohibition of cruel and unusual punishment.

While authority exists for detaining enemy combatants during war, only a prisoner of war may be detained, and only for the duration hostilities, and a combatant may not be denied POW status without a status hearing, per the Third Geneva Convention.

Anyone not deemed an enemy combatant and protected as a POW is protected by the Fourth Geneva Convention as a civilian, and may not be detained without due process.

U.S. Laws and Cases: How They Also May Apply to the CIA Gulag

The 1996 War Crimes Act provides for severe criminal penalties for grave breaches of the Geneva and Hague Conventions, including Common Article 3.

But even where no violation of the Geneva or Hague Conventions is found, courts have held that the U.S. cannot excuse overseas conduct by claiming it was conducted in a foreign country under foreign official control, if the U.S. was involved in the conduct and if the conduct "shocks the conscience." Thus, in cases where the U.S. participates in unlawful detentions and interrogations of terrorist suspects by foreign officials, the U.S. may still be violating U.S. law, despite the foreign government's formally being the one that is holding the detainee.

U.S. courts have held that U.S. officials are responsible for conscience-shocking acts taking place on foreign soil or carried out by foreign officials if U.S. officials engaged or participated in a joint operation, if the involvement was such that foreign officials could be considered as agents of the U.S., or if the joint conduct was designed to evade constitutional protections. Although such doctrines have never been used to prosecute officials for their conduct, these cases may provide a framework to assist courts in determining liability.

Legal Liability: If the Law Is Broken, Who Is Accountable, and When?

U.S. officials may incur liability for grave violations of international law under the 1996 War Crimes Act, and Geneva and the Nuremberg Charter exclude any form of immunity for war crimes. Obedience to orders is no defense to such charges, though it may mitigate the severity of punishment. Geneva Common Article 1 imposes the positive duty to respect and ensure respect for the Geneva Conventions in all circumstances on all parties.

Additionally, the doctrine of command responsibility requires that where a commander knows, or should have known, that his troops are committing war crimes and fails to prevent them, he is liable for their actions.

According to Newsweek, President Bush signed a secret order authorizing the CIA to set up the black sites.

In conclusion, the CIA Gulag of detention camps spread around the globe violates numerous provisions of both domestic and international law. And the legal liability for these camps falls not just on CIA operatives, but on those Administration officials who have authorized or sanctioned these practices.


Jennifer Van Bergen, a journalist with a law degree, is the author of THE TWILIGHT OF DEMOCRACY: THE BUSH PLAN FOR AMERICA (Common Courage Press, 2004). She writes frequently on civil liberties, human rights, and international law. Her book, ARCHETYPES FOR WRITERS, about the characterization method she developed and taught at the New School University, will be out in 2006.

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