22 September 2006

CIA ‘refused to operate’ secret jails

The hidden news appeared today in the Financial Times.

Remember the recent televised speech by President Bush in which, for the first time, he acknowledged the existence of CIA 'secret prisons', and his 'alternative set of procedures' programme?

According to the BBC,

"Mr Bush said he was making a limited disclosure of the CIA programme because interrogation of the men it held was now complete and because a US Supreme Court decision had stopped the use of military commissions for trials."
This theory was not entirely supported by the LA Times who reported at the time:

"The CIA, however, has become increasingly uncomfortable in its role running secret overseas prisons; agency officers in some cases are wary of carrying out orders for fear their actions might leave them vulnerable to legal liability, if not criminal prosecution, according to current and former U.S. intelligence officials."CIA personnel were being left hanging without appropriate legal protections," said Robert Grenier, who ran the CIA's counter-terrorism center before retiring this year. Grenier said there had been a "period of stock-taking" within the agency after Congress late last year passed a measure, introduced by Sen. John McCain (R-Ariz.), that placed new restrictions on the handling of detainees.The legal uncertainty brought interrogation work to a halt in some cases. The operation of the secret facilities also became a strain on agency resources, even as the information obtained from the so-called high-value detainees — including Mohammed — slowed to a trickle,"

However, according to an article in yesterday's Financial Times, the "CIA ‘refused to operate’ secret jails". Guy Dinmore in Washington reported:

"The Bush administration had to empty its secret prisons and transfer terror suspects to the military-run detention centre at Guantánamo this month in part because CIA interrogators had refused to carry out further interrogations and run the secret facilities, according to former CIA officials and people close to the programme.

The former officials said the CIA interrogators’ refusal was a factor in forcing the Bush administration to act earlier than it might have wished.When Mr Bush announced the suspension of the secret prison programme in a speech before the fifth anniversary of the September 11 terror attacks, some analysts thought he was trying to gain political momentum before the November midterm congressional elections.

The administration publicly explained its decision in light of the legal uncertainty surrounding permissible interrogation techniques following the June Supreme Court ruling that all terrorist suspects in detention were entitled to protection under
Common Article Three of the Geneva Conventions.

But the former CIA officials said Mr Bush’s hand was forced because interrogators had refused to continue their work until the legal situation was clarified because they were concerned they could be prosecuted for using illegal techniques. One intelligence source also said the CIA had refused to keep the secret prisons going. Senior officials and Mr Bush himself have come close to admitting this by saying CIA interrogators sought legal clarity. But no official has confirmed on the record how and when the secret programme actually came to an end.

John Negroponte, director of national intelligence, who was interviewed by Fox News on Sunday, said in response to a question of whether CIA interrogators had refused to work: “I think the way I would answer you in regard to that question is that there’s been precious little activity of that kind for a number of months now, and certainly since the Supreme Court decision.”

In an
interview with the Financial Times, John Bellinger, legal adviser to the state
department, went further, saying there had been “very little operational activity” on CIA interrogations since the passage last December of a bill proposed by Senator John McCain outlawing torture and inhumane treatment of prisoners.

Mr Bellinger said the secret prisons remained empty for the moment. But he defended the US position that use of such prisons did not contravene international conventions as some in Europe have argued. He also said that, theoretically, the Pentagon as well as the CIA had the legal right to run such facilities. The CIA declined to comment.

Key figures among the 14 prisoners transferred to Guantánamo, including Khalid Sheikh Mohammed, had been held in secret centres for three years or more

Backing this up we have this report from a few days later in the Washington Post: "Worried CIA Officers Buy Legal Insurance". According to Post staff writer R. Jeffrey Smith,

"CIA counterterrorism officers have signed up in growing numbers for a government-reimbursed, private insurance plan that would pay their civil judgments and legal expenses if they are sued or charged with criminal wrongdoing, according to current and former intelligence officials and others with knowledge of the program.

The new enrollments reflect heightened anxiety at the CIA that officers may be vulnerable to accusations they were involved in abuse, torture, human rights
violations and other misconduct, including wrongdoing related to the Sept. 11, 2001, attacks. They worry that they will not have Justice Department representation in court or congressional inquiries, the officials said.

The anxieties stem partly from public controversy about a system of secret CIA prisons in which detainees were subjected to harsh interrogation methods, including temperature extremes and simulated drowning. The White House contends the methods were legal, but some CIA officers have worried privately that they may have violated international law or domestic criminal statutes."

According to the Manual for Judges and Prosecutors: Combating Torture prepared by the University of Essex, a project "sponsored by the Foreign and Commonwealth Office of the United Kingdom":

"General prohibition

1.7 The prohibition of torture is found in a number of international human rights and humanitarian treaties and is also regarded as a principle of general international law. The prohibition of torture is also considered to carry a special status in general international law, that of jus cogens, which is a 'peremptory norm' of general international law.2 General international law is binding on all states, even if they have not ratified a particular treaty. Rules of jus cogens cannot be contradicted by treaty law or by other rules of international law.

1.8 The prohibition of torture is found in Article 5 of the Universal Declaration of Human Rights (1948) and a number of international and regional human rights treaties. The vast majority of states have ratified treaties that contain provisions that prohibit torture and other forms of ill-treatment. These include: the International Covenant on Civil and Political Rights (1966),
3 the European Convention on Human Rights (1950),4 the American Convention on Human Rights (1978)5 and the African Charter on Human and People's Rights (1981).6 The texts of the Articles relating to torture from some of these treaties and a table of country ratifications of selected universal treaties are included in the Appendices
to this manual.

1.9 A number of treaties have also been drawn up specifically to combat torture. These are: the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (Convention against Torture) the European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment 1987 the Inter-American Convention to Prevent and Punish Torture 1985. The absolute prohibition of torture and ill-treatment is underlined by its non-derogable status in human rights law. There are no circumstances in which states can set aside or restrict this obligation, even in times of war or other emergency threatening the life of the nation, which may justify the suspension or limitation of some other rights.
7 States are also restricted from making derogations which may put individuals at risk of torture or ill-treatment -- for example, by allowing excessive periods of incommunicado detention or denying a detainee prompt access to a court.8 This prohibition operates irrespective of circumstances or attributes, such as the status of the victim or, if he or she is a criminal suspect, upon the crimes that the victim is suspected of having committed.9

1.10 State officials are prohibited from inflicting, instigating or tolerating the torture or other cruel, inhuman or degrading treatment or punishment of any person. An order from a superior officer or a public authority may not be invoked as a justification for torture.10 States are also required to ensure that all acts of torture are offences under their criminal law, establish criminal jurisdiction over such acts, investigate all such acts and hold those responsible for committing them to account.11

1.11 Torture and other ill-treatment of any person in the power of another party are also banned as a war crime under the laws of armed conflict (humanitarian law).12 The prohibition against torture in humanitarian law is expressly found in Common Article 3 of the Geneva Conventions and in various provisions of the four Geneva Conventions, including the grave breaches provisions,13 and the Additional Protocols of 1977.14 Torture is also considered to be a crime against humanity when the acts are perpetrated as part of a widespread or systematic attack against a civilian population, whether or not they are committed in the course of an armed conflict. Thus, for example, Article 7 of the Rome Statute of the International Criminal Court (ICC) includes torture and rape within the Court's jurisdiction. The text of Common Article 3 of the Geneva Conventions and Articles 7 and 8 of the Rome Statute are included in Appendix One of this manual.

1.12 The main focus of this manual is on torture and ill-treatment by state agents, particularly law enforcement officials. However, there is also a growing acceptance of the importance of safeguarding people from similar treatment carried out by private groups or individuals against persons under the effective control of those groups or individuals. Sates are responsible for safeguarding the rights of everyone within their jurisdiction and may be held accountable for acts carried out by private individuals if it supports or tolerates them, or fails in other ways to provide effective protection in law against them.

1.13 The right of an individual to protection against torture and other prohibited forms of ill-treatment includes the right not to be returned to a country where there are substantial grounds for believing that he or she is at risk of suffering such treatment.16 People have a right not to be forcibly returned where they are at risk of suffering torture -- even if they have not yet been recognised as refugees. A state responding to an extradition request also needs to ensure that the other country is complying with its obligations under international law in respect of torture and ill-treatment before it may hand someone over to that jurisdiction.17"

The University of Essex Manual also sets out the definitions of torture:

"Legal definitions
1.17 Article 1 of the Convention against Torture sets out an internationally agreed definition of acts that constitute 'torture'. This states that: the term 'torture' means any act by which severe pain or suffering, whether physical or mental, is ntentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

1.18 The exact boundaries between 'torture' and other forms of 'cruel, inhuman or degrading treatment or punishment' are often difficult to identify and may depend on the particular circumstances of the case and the characteristics of the particular victim. Both terms cover mental and physical ill-treatment that has been intentionally inflicted by, or with the consent or acquiescence of, the state authorities. The 'essential elements' of what constitutes torture contained in Article 1 of the Convention against Torture include: The infliction of severe mental or physical pain or suffering; By or with the consent or acquiescence of the state authorities; For a specific purpose, such as gaining information, punishment or intimidation.

1.19 Cruel treatment, and inhuman or degrading treatment or punishment are also legal terms. These refer to ill-treatment that does not have to be inflicted for a specific purpose, but there does have to be an intent to expose individuals to the conditions which amount to or result in the ill-treatment. Exposing a person to conditions reasonably believed to constitute ill-treatment will entail responsibility for its infliction. Degrading treatment may involve pain or suffering less severe than for torture or cruel or inhuman treatment and will usually involve humiliation and debasement of the victim. The essential elements which constitute ill-treatment not amounting to torture would therefore be reduced to: Intentional exposure to significant mental or physical pain or suffering; By or with the consent or acquiescence of the state authorities It is often difficult to identify the exact boundaries between the different forms of ill-treatment as this requires an assessment about degrees of suffering that may depend on the particular circumstances of the case and the characteristics of the particular victim. In some cases, certain forms of ill-treatment or certain aspects of detention which would not constitute torture on their own may do so in combination with each other. Ill-treatment is, however, prohibited under international law and even where the treatment does not have the purposive element or, as far as degrading treatment is concerned, is not considered severe enough (in legal terms) to amount to torture, it may still amount to prohibited ill-treatment.31

1.20 The Human Rights Committee has stated that: 'The Covenant does not contain any definition of the concepts covered by article 7, nor does the Committee consider it necessary to draw up a list of prohibited acts or to establish sharp distinctions between the different kinds of punishment or treatment; the distinctions depend on the nature, purpose and severity of the treatment applied.'32 It has, however, stated that the prohibition in article 7 relates not only to acts that cause physical pain but also to acts that cause mental suffering to the victim.33 The European Court of Human Rights has also noted in Selmouni v France: 'Certain acts which were classified in the past as 'inhuman and degrading treatment' as opposed to 'torture' could be classified differently in the future ... the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies.'34

1.21 The drafters of the Geneva Conventions also avoided a detailed list of prohibited acts. In its Commentary on the Geneva Conventions, the International Committee of the Red Cross has stated 'It is always dangerous to go into too much detail -- especially in this domain. However great the care taken in drawing up a list of all the various forms of infliction, it would never be possible to catch up with the imagination of future torturers who wished to satisfy their bestial instincts; the more specific and complete a list tries to be, the more restrictive it becomes. The form of wording adopted is flexible, and, at the same time, precise.'35"

Well, one assumes the CIA 'interrogators have read these international regulations on the subject, and therefore, if they are "worried" they "may have" violated international law, then they probably have good cause to be!