III. The Law

Behind the Wire

n its recently released Country Reports on human rights conditions abroad, the U.S. Department of State once again criticized the practice of holding individuals incommunicado in secret detention facilities. For a nation founded on the principle of limited government, the reason for the criticism is not difficult to understand. As one federal court put it, rejecting efforts to secretly deport individuals from the United States: "The Executive Branch seeks to uproot people's lives, outside the public eye, and behind a closed door. Democracies die behind closed doors."*"

For this reason, the major international treaties that govern the use of detention by the United States recognize the fundamental necessity of maintaining openness in government detention - whether of civilians or of prisoners of war, and whether they are detained in the course of international armed conflict or not. Longstanding U.S. law and policy reflect adherence to these obligations.

Under the International
Covenant on Civil and
Political Rights

The International Covenant on Civil and Political Rights (ICCPR), which the United States ratified more than a decade ago, makes clear that all state parties have a duty to institute procedures that will minimize the risk of torture. At the top of the list of required procedures are: maintaining officially recognized places of detention, keeping registers of all in custody, and disclosing the names of all individuals detained to their families and friends.20

To guarantee the effective protection of detained persons, provisions should be made for detainees to be held in places officially recognized as places of detention and for their names and places of detention, as well as for the names of persons responsible for their detention, to be kept in registers readily available and accessible to those concerned, including relatives and friends. To the same effect, the time and place of all interrogations should be recorded, together with the names of all those present and this information should also be available for purposes of judicial or administrative proceedings

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Such requirements are imposed because prisoners are "particularly vulnerable persons," who can easily become subject to abuse. In fact, incommunicado detention, especially by denying individuals contact with family and friends, violates the ICCPR obligation to treat prisoners with humanity States are thus required to implement provisions "against incommunicado detention" that deter violations and ensure accountability.

The Human Rights Committee (HRC), the independent ICCPR monitoring body (whose members are human rights experts elected by state parties), has consistently recognized the import of these obligations. For example, in ElMegreisi v. Libya, the HRC found that the Libyan government in detaining an individual for six years, the last three of which were incommunicado and at an unknown location, had violated the ICCPR's prohibition of torture and its requirement that prisoners be treated with dignity. This, despite the fact that the family

14-The Law

knew that the detainee was alive and his wife had been allowed to visit him once. The HRC nonetheless found that the detainee 's prolonged incommunicado imprisonment as well as the government's refusal to disclose ElMegreisi's whereabouts, amounted both to arbitrary detention and to a state failure to minimize the risks of lorture **

Under the Geneva
Conventions

The Geneva Conventions of 1949, which the United States has also signed and ratified, are the primary instruments of international humanitarian law protecting all those caught up in the course of armed conflict. The US Government has generally taken the position that the Geneva Conventions apply in the US armed conflict in Iraq. Since the transfer of power to the interim Government of Iraq, former Secretary of State Colin Powell has asserted the continuing application of the Geneva Conventions to the actions of US forces in Iraq * Despite this, both conflicting public statements. discussed in Chapter 2, and internal Administration dispute over the

applicability of these treaties, have left the Conventions role in these conflicts deeply unclear

The Administration's position regarding the applicability of the Geneva regime in Afghanistan has been even less clear. In press statements in early January 2002 Defense Secretary Donald Rumsfeld stated that as a matter of policy, but not of legal obligation, the United States intended to treat detainees from Afghanistan in a manner "reasonably consistent with the Geneva Conventions," and would "generally follow the Geneva Conventions, though only to "the extent that they are appropriate," as "technically unlawful combatants do not have any rights under the Geneva Convention. Following an intemal review of this postion at the urging of former Secretary of State Colin Powell (concerned about the potential effect on US forces of a blanket renunciation of the Geneva Conventions), the Administration modified its position slightly On February 7, 2002. White House Spokesman Ari Fleischer announced President Bush's deci sion that the Geneva Convention applies to members of the Taliban militia, but not to members of the international al-Qaida terrorist network Despite the stated application of the Conventions, however, the Administration determined that Taliban fighters were not eligi

ble for prisoner of war status because the government had violated international humanitanar: law, this allegation had never previously stopped the United States from affording enemy govemment forces prisoner-of-war protections. The US. obligation to record and account for all wartime detainees is clear. Under the Third Geneva Convention, prisoners of war are to be documented and their whereabouts and health conditions made available to family members and to the country of origin of the prisoner The Fourth Geneva Convention (governing the treatment of civilians) establishes virtually identical procedures for the documentation and disclosure of information concerning civilian detainees." These procedures are meant to ensure that "[i]nternment is not a measure of punishment and so the persons interned must not be held incommunicado.***

The disclosure required by the Geneva Conventions is done in the first instance through a system of capture cards. "Immediately upon capture, or not more than one week after arrival at a camp even if it is a transit camp, likewise in case of sickness or transfer to hospital or another camp, every prisoner of war shall be enabled to write direct to his family, on the one hand, and to the Central Prisoners of War Agency provided for in Article 123, on the other hand, a card informing his relatives of his capture, address and state of health. The said cards shall be forwarded as rapidly as possible and may not be delayed in any manner." The United States' failure to observe the capture card system in Iraq was the subject of Red Cross criticism in its 2004 report.

The Central Agency described in Article 123 is a body meant to be established in a neutral country whose purpose is "to collect all the information it may obtain through official or private channels respecting prisoners of war. and to transmit it as rapidly as possible to the country of origin of the prisoners of war or to the Power on which they depend. The Red Cross has historically established the Central Agency and "[w]henever a conflict has occurred since the Second World War, the International Committee has placed the Agency at the disposal of the belligerents, and the latter have accepted its services,

U.S. Domestic Law and Policy [T]he Secretary shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the

Behind the Wre- 15

House of Representatives a report for the preceding 12-months containing the following... (A) The best estimate of the Secretary of Defense of the total number of detainees in the custody of the Department as of the date of the report. (B) The best estimate of the Secretary of Defense of the total number of detainees released from the custody of the Department during the period covered by the report. (C) An aggregate summary of the number of persons detained as enemy prisoners of war, civilian internees, and unlawful combatants, including information regarding the average length of detention for persons in each category. (D) An aggregate summary of the nationality of persons detained. (E) Aggregate information as to the transfer of detainees to the jurisdiction of other countries, and the countries to which transferred.

Ronald W. Reagan National Defense Authorization
Act. Pub L. No 108-375. § 1093(c)
Enacted October 28, 2004

U.S. domestic law and policy have long required clear accounting and processing of detainees captured by U.S. Armed Forces, as well as the provision of Red Cross access to prisoners, in order to ensure that US Geneva Convention obligations have been fulfilled. These principles are enshrined in binding military regulations and field manuals dating back half a century. In addition, in response to revelations of a disturbing pattern of noncompliance with these principles in U.S. global detention operations since September 11, the past nine months have seen both Congress and the U.S. Army take steps to reaffirm these obligations. Detainee accounting and reporting requirements are clear.

Army regulations in place before the start of the war in Afghanistan provide detailed procedures for accounting for detainees in U.S. custody. Defense Department Directive 2310.1 - currently in force - affirms the United States' obligation to comply with the Geneva Conventions and establishes a framework for information disclosure. Under this Directive, the Secretary of the Army must develop plans for "the treatment, care, accountability, legal status, and administrative procedures to be followed about personnel captured or detained by, or transferred from the care, custody, and control of, the U.S. Military Services." In par

ticular, the Secretary of the Army is required to plan and operate a prisoner-of-war and civilian internment information center to comply with the United States' Geneva Convention obligations (described above), and "serve to account for all persons who pass through the care, custody, and control of the U.S. Military Services. The Undersecretary of Defense for Policy (a position currently held by Douglas Feith) has "primary staff responsibility" for overseeing the detainee program.

To implement its obligations under Article 122 of the Third Geneva Convention, requiring each detaining power to establish a national information bureau," and to fulfill Directive 2310.1, the Army established the National Prisoner of War Information Center (NPWIC). According to binding Army Regulation 190-8, the NPWC is charged with maintaining records for both POWS and detained civilians. The center functioned during the 1991 Gulf War, and has been used in subsequent U.S. military operations. As an information processor, the NPWIC ensures full accounting of persons who fall into U.S. hands. It does not make decisions regarding whether an individual is entitled to prisoner of war or other legal status.

In April 2003, W. Hays Parks, Special Assistant to the Army JAG, maintained that the NPWIC would be employed in Iraq: "Once the theater processing is accomplished, those reports are sent back here to the National Prisoner of War Information Center, which is run under the Army Operations Center. Those lists are all collated, put together and we ensure that we have proper identification, the best information we can get from that. And thereafter, that information is forwarded by the United States govemment to the International Committee of the Red Cross."231

But in his investigative report, Major General Antonio Taguba noted that such regulations had not been fully complied with, since the reporting systems such as the National Detainee Reporting System (NDRS) and the Biometric Automated Toolset System (BATS) - which traditionally provide information to the NPWC were "underutilized and often [did] not give a 'real time' accurate picture of the detainee population due to untimely updating."** An investigative report into prisoner abuse in Iraq by former Secretary of Defense James Schlesinger also found that the failure to implement a comprehensive detainee collection database created a large backlog where "some detainees had been held 90 days before being

18- The Law

interrogated for the first time in some cases, the release of innocent detainees took significantly longer because of adequate accounting systems and general backlogs

More than a year after military operations began in Iraq on July 16, 2004, the Pentagon announced the creation of an Office of Detainee Affairs (ODA) within the Office of the Undersecretary of Defense for Policy to advise the Secretary of Defense on policy and strategy in the area The ODA is charged with correcting such basic operational problems for detainees working with policy makers on torture and interrogation policy, and building relationships with Congress other countries and nongovemmental organizations. According to an ODA offical, the ODA has instituted new policies and procedures for addressing concerns raised in Red Cross reports to higher levels of the Defense Department. The effectiveness of these new procedures is now being tested. In addition in the wake of rising counterinsurgency activities in Iraq, the US Army published a new, intenm field manual on counterinsurgency operations in October 2004 23? The intenm manual explains that establishes doctrine (fundamental principles and tactics. techniques, and procedures]) for military operations in a counterinsurgency environment. It is based on existing doctrine and lessons learned from recent combat operations Among other things, the interim manual affirms the obligation to account for all in US custody - whatever their legal status "Detaining personnel carries with it the responsibility to guard, protect, and account for them. For this and other purposes the interim manual specifies as "critical" the need for "[clearly documenting the details Surrounding the initial detention and preserving evidence *** Documentation to be recorded must be "detailed and answer the six Ws who, what, when, where, why, and witnesses.

Congress also took action in October 2004, enacting as part of the Ronald W Reagan National Defense Authorization Act provisions requiring the Secretary of Defense to report to Congress on US compliance with these basic standards The statute requires the Secretary, by the end of March 2005, to prescribe detailed regulations for Defense Department personnel, including contractors, to ensure that all detainees held in Defense Department custody receive humane treatment in accordance with U.S. and international law. Among other things, the regulations must provide for training in the

applicable law of war, including the Geneva Conventions: establish standard operating procedures for detainee treatment; ensure that all detainees receive information in their own language regarding the protections due them under the Geneva Conventions; and provide for periodic announced and unannounced inspections of detention facilities. The new law also requires the Secretary to provide to the Senate and House Armed Services Committees, by July 28, 2005, and annually thereafter, a report disclosing investigations into violations of domestic or intemational law regarding detainee treatment: and general information on foreign national detainees in Defense Department custody, including the numbers, nationalities, and average length of detention of such detainees, as well as information regarding detainees who have been released during the year and detainees transferred to the jurisdiction of other countries.23

Finally, since 1956, the Army's field manual has explicitly recognized the Red Cross's night to detainee information and access, and its special role in ensuring Geneva Conventions compliance. The manual stipulates: "The special position of the International Committee of the Red Cross in this field shall be recognized and respected at all times. The Navy's operations handbook likewise authorizes the Red Cross to monitor "the treatment of prisoners of war, interned civilians, and the inhabitants of occupied territory. It describes the Red Cross's special status and access to detainees: (The Red Cross's] principal purpose is to provide protection and assistance to the victms of armed conflict. The Geneva Conventions recognize the special status of the Red Cross and have assigned specific tasks for it to perform, including visiting and interviewing prisoners of war, providing relief to the civilian population of occupied territories, searching for information concerning missing persons, and offenng its "good offices' to facilitate the establishment of hospital and safety zones.

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Army regulations make even more explicit the rights of detainees, both civilians and combatants, to contact the Red Cross and ensure adequate access and disclosure. With respect to detained combatants, prisoner representatives have the right to correspond with the Red Cross Similar internee committees representing detained civilians also have rights to unlimited correspondence with the Red Cross.