The detention and interrogation program in which Jabour was held was operated by the US Central Intelligence Agency (CIA). It was authorized under a classified September 17, 2001 presidential directive, and operated in close secrecy for nearly five years.31
As Jabours case illustrates, prisoners in the CIA program have been disappeared, held in acknowledged detention in secret facilities, and barred from communicating with family members, legal counsel, or anyone outside. Although the International Committee of the Red Cross has repeatedly expressed concern about being denied access to detainees in CIA custody, the US government has refused to allow them to visit such facilities.32
In a televised speech in September 2006, just before the anniversary of the September 11 terrorist attacks, President George W. Bush publicly acknowledged that the CIA had been secretly detaining suspected terrorists in facilities outside of the United States. The president said that he could not reveal the specifics of this program, including where these detainees have been held and the details of their confinement. Instead, he dedicated most of the speech to lauding the programs accomplishments. While making the increasingly hollow claim that the United States does not use torture, he described several cases where the CIA used an alternative set of procedures to obtain information from detainees who were resisting interrogation. Bush said: I cannot describe the specific methods usedI think you understand whyif I did, it would help the terrorists learn how to resist questioning, and to keep information from us that we need to prevent new attacks on our country. But I can say the procedures were tough, and they were safe, and lawful, and necessary.33
As discussed below, interrogation methods reportedly used in CIA secret prisons included torture and other cruel and inhuman treatmentand were anything but lawful.
President Bushs speech was the most important official acknowledgement of the CIAs detention program, but it was not the first time that information about secret CIA detention had been made public. Indeed, reports that suspected al Qaeda operatives were being held by the CIA in undisclosed locations abroad began circulating in 2002.34
The first official acknowledgement that such reports were true came with the federal prosecution of Zacarias Moussaoui for the September 11 attacks.35 In February 2003, the federal district judge hearing the Moussaoui case ruled that the government had to allow Moussaouis lawyers to question Ramzi bin al-Shibh, who was allegedly a key figure in the September 11 attacks, and who had information that tended to exculpate Moussaoui from responsibility in the attacks. Because defendants have a constitutional right of access to exculpatory witnesses in the governments custody, the government had to admit that it was holding bin al-Shibh in a secret location overseas. The government argued, however, that allowing Moussaouis counsel to question bin al-Shibh would seriously interfere with bin al-Shibhs interrogation. Although the district court rejected the governments claim, ruling that questioning via closed-circuit video should be allowed, the Court of Appeals for the Fourth Circuit later reversed the district courts decision and barred all access to bin al-Shibh.36 A similar issue later arose in the federal prosecution of Uzair Paracha.37
More detailed and direct accounts of the CIAs secret detention and interrogation program emerged in 2004 and 2005 from former detainees. Most notably, in June 2004, Khaled el-Masri, a German citizen of Lebanese descent, told German police about his kidnapping, abuse, and secret detention. El-Masri was arrested by Macedonian agents on December 31, 2003, on the Serbia-Macedonia border, held secretly for nearly a month in a hotel in Skopje, then picked up by US agents and flown to Afghanistan, where he spent four months in unacknowledged detention. At the time the story was made public, el-Masris lawyer said that he believed el-Masri had been held by the CIA. When journalists interviewed CIA officials regarding el-Masris claims, the officials refused to either confirm or deny that he had been held.38
Later in 2005, three Yemeni former detainees told Amnesty International about their experiences in CIA detention, and a number of Guantanamo detainees told their legal counsel that prior to their transfer to Guantanamo they had been held in a secret dark prison in Kabul, Afghanistan.39 All of these accounts had certain common characteristics, including descriptions of interrogators and prison directors who spoke American-accented English, black uniformed and masked guards, flights in which the detainee was placed in diapers and wrapped up like a package, and various forms of physical and mental abuse.
Relying on flight logs and information from plane spotters (people who watch aircraft arrivals and departures at airports), journalists and human rights investigators were able to trace a number of the flights by which the CIA allegedly transported prisoners.40
Yet, despite mounting evidence of the CIAs secret prison program, the Bush administration refused to discuss its operations. Indeed, it was reported that the administration did not describe the program in any real detail to the congressional intelligence committees tasked with providing oversight of the CIAs activities.41 Even when the Washington Post published a front-page news story describing the history and scope of the detention program in November 2005a piece reportedly based on accounts by current and former intelligence officialsnot a single administration official spoke about the program on the record.42
According to the Washington Post, the secret detention program had at various times included sites in eight countries, including Thailand, Afghanistan and several democracies in Eastern Europe. Although at the request of the US government the Washington Post did not name the Eastern European countries where the prisons were located,Human Rights Watch released information pointing to Poland and Romania as among the sites of detention facilities.43 A few weeks later, ABC News reported that at least 11 High Value Targets had been held in CIA custody in Poland.44
Based on information from current and former intelligence sources, a number of journalists have described the interrogation methods used in CIA facilities. These enhanced interrogation techniques, as the CIA reportedly called them, included extended sleep deprivation combined with forced standing, as well as exposure to extreme cold.45 The CIA also reportedly employed waterboarding, a torture method by which the prisoner is strapped to a board and made to feel like he is drowning. It is believed that several of the 14 prisoners transferred to Guantanamo in September were subject to waterboarding.46
The Pakistan Connection
Jabours experience of arrest in Pakistan and subsequent disappearance into CIA custody was far from unique. Indeed, it appears that a large majority of the prisoners held by the CIA were originally arrested in Pakistan, often during joint U.S.-Pakistani operations. Of the 14 high-level CIA detainees transferred to Guantanamo in September 2006, for example, nine were picked up in Pakistan.47 And most of the other people who are thought to have been in CIA custody were arrested in Pakistan.
The Pakistani authorities have made no secret of the fact that they have handed over several hundred terrorism suspects to the United States, boasting of the arrests and transfers as proof of Pakistans cooperation in US counterterrorism efforts.48 While the majority of these detainees were transferred into US military custody in Afghanistan or at Guantanamo,49 or were transported to third countries via the CIAs rendition program,50 some substantial number of them disappeared into CIA custody.51 Family members have filed suit in the Pakistani courts in some cases, but without knowing whether their relatives remain in Pakistani custody, are in US custody, or are being held elsewhere.52
31 In response to a lawsuit filed by the American Civil Liberties Union (ACLU), the US government recently acknowledged the existence of the September 17 directive, after having for several years refused to confirm or deny that such a document existed. See ACLU, CIA Finally Acknowledges Existence of Presidential Order on Detention Facilities Abroad, November 14, 2006. It has refused to make the document public, however, or even provide it to members of Congress. See Leahy brushed off on secret terror docs, UPI, January 3, 2007.
32 See US bars access to terror suspects, BBC News, December 9, 2005; ICRC, Developments in US policy and legislation towards detainees: the ICRC position, October 19, 2006 (ICRC President Jakob Kellenberger stating that the ICRC had repeatedly expressed concern about detainees in undisclosed detention and had requested access to them).
33 White House, Office of the Press Secretary, President Discusses Creation of Military Commissions to Try Suspected Terrorists, September 6, 2006.
34 See, for example, Getting al Qaeda to talk, CNN.com, September 17, 2002 (discussing the detention of Ramzi bin al-Shibh and Omar al-Faruq); Appropriate pressure being put on al Qaeda leader, CNN.com, March 3, 2003 (stating that CIA had brought Khalid Shaikh Mohammed, who was arrested in Pakistan, to an undisclosed location outside of the United States).
35 Moussaoui, a French citizen of Moroccan descent, was indicted in December 2001 on charges of conspiring with other members of al Qaeda to hijack planes and fly them into the World Trade Center and the Pentagon. He later pleaded guilty and was sentenced to life in prison.
36 The access question eventually involved several other suspected members of al Qaeda (including Khalid Sheikh Mohammed and Tawfiq bin Attash), all of whom were transferred to Guantanamo in September 2006. The US government was so worried that the courts might grant Moussaouis counsel some form of access to these detainees that it cited the Mousaoui case as a reason for denying detainee access to the 9/11 Commission. See Thomas H. Kean and Lee H. Hamilton, Without Precedent: The Inside Story of the 9/11 Commission (New York: Alfred A. Knopf, 2006), p. 121.
37 In the Paracha prosecution, the defendant sought access to Majid Khan and Ammar al-Baluchi, both of whom were transferred to Guantanamo in September 2006. The defendant was convicted in November 2005 of providing material support to al Qaeda.
38 Don Van Natta Jr. and Souad Mekhennet, Germans Claim of Kidnapping Brings Investigation of US Link, New York Times, January 9, 2005.
39 Amnesty International issued a series of reports based on the Yemenis description of their experiences. See, for example, Amnesty International, USA/Yemen: Secret Detention in CIA Black Sites, AMR 51/177/2005 (November 2005). And Human Rights Watch issued a press release about the dark prison. Human Rights Watch, US Operated Secret Dark Prison in Kabul, December 19, 2005.
40 The plane that brought el-Masri from Skopje to Kabul, for example, was a Boeing Business Jet whose registration number was N313P. For detailed accounts of how the CIA used civilian jets to transport prisoners both to its own prisons and to foreign prisons, see Stephen Grey, Ghost Plane: The True Story of the CIA Torture Program (New York: St. Martins Press, 2006), and Trevor Paglen and A.C. Thompson, Torture Taxi: On the Trail of the CIAs Rendition Flights (Hoboken, Melville House Publishing, 2006).
41 Congressional intelligence committees were reportedly briefed about the existence of the CIA detention program, but they were not, for example, informed of the locations of the prisons. Bush defends secret prisons, harsh interrogations, Asheville Global Report, September 14-20, 2006. Notably, in response to President Bushs September 6, 2006 speech, Senator John D. Rockefeller IV, vice-chairman of the Senate Intelligence Committee, complained that Bush had withheld details of the CIA detention and interrogation program from the congressional intelligence committees. Press Statement, Rockefeller Responds to Presidents Decision to Bring Captured Al-Qaeda Terrorists to Trial, September 6, 2006.
42 Dana Priest, CIA Holds Terror Suspects in Secret Prisons, Washington Post, November 2, 2005. Priest later won a Pulitzer prize for her reporting on the CIAs secret prison program.
43 Human Rights Watch, Statement on US Secret Detention Facilities in Europe, November 7, 2005.
44 See List of 12 Operatives Held in CIA Prisons, ABC News, December 5, 2005 (stating that, among others, Khalid Sheikh Mohammed, Hassan Ghul, and Mohammed Omar Abdel-Rahman were held in Poland).
45 See Brian Ross and Richard Esposito, CIAs Harsh Interrogation Techniques Described, ABC News, November 15, 2005. ABC News reported that these techniques were first authorized in mid-March 2002.
46 See ibid.; Suskind, The One Percent Doctrine, p. 115.
47 They are: Zine Abd El Dine (aka Abu Zubaydah), Ramzi bin al-Shibh, Mustafa Ahmad al-Hawsawi, Khalid Sheikh Mohammed, Majid Khan, Ali Abd al-Aziz Ali (aka Ammar al-Baluchi), Walid bin Attash (aka Khallad), Ahmed Khalfan Ghailani, and Abu Faraj al-Libbi.
48 Available information indicates that somewhere between 400 and 800 people were transferred from Pakistani to US custody between late 2001 and the end of 2005. See, for example, South Asia Terrorism Portal, 443 Al Qaeda suspects handed over to US, January 7, 2003; Dr. Shoaib Suddle, Director General, National Police Bureau of Pakistan, Fighting International Terrorism: The Role of Pakistan as a Frontline State, February 13-14, 2006. President Pervez Musharraf himself has acknowledged that Pakistan handed over 369 detainees. Pervez Musharraf, In the Line of Fire (New York: Free Press, 2006).
49 According to one study, at least 36 percent of the detainees brought to Guantanamo (that is, 270 people) were arrested in Pakistan, and possibly as many as half (i.e., 380 or more people) were arrested there. Mark Denbeaux and Joshua Denbeaux, Report on Guantanamo Detainees, Seton Hall Public Law Research Paper No. 46, February 2006, p. 14.
50 Much has been written about the CIAs rendition program (its program of delivering detainees without legal process to countries where they often face torture), which is closely related to its secret prison program. See, for example, Stephen Grey, Ghost Plane; Jane Mayer, Outsourcing torture: The secret history of Americas extraordinary rendition program, New Yorker, February 14, 2005; Amnesty International, Below the radar: Secret flights to torture and disappearance, AMR 51/051/2006, April 5, 2006; Editorial, Torture by Proxy, New York Times, March 8, 2005.
51 Human Rights Watch has the names of dozens of people who were arrested in Pakistan and may have been handed over to the CIA.
52 Some cases have involved more than one missing person, including people who were believed to have disappeared into CIA custody, at least for a time, people in Pakistani custody, and people who have since turned up at Guantanamo. For example, the sister of Khalid Sheikh Mohammed filed suit seeking information about her brother Khalid, her son Ali Abdul Aziz Ali, her nephew Musab Aruchi (aka Abdul Karim Mehmood), and other family members. The first two men are now known to be at Guantanamo, after having spent years in CIA custody. Aruchis whereabouts are unknown, although it is thought that he was in CIA detention for a time. See Interior ministry not aware of Khalid Sheikhs whereabouts, The News (Pakistan), January 26, 2007.