The New CIA Gulag of Secret Foreign Prisons:

The New CIA Gulag of Secret Foreign Prisons:
Tue Nov 8, 2005 17:00

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

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

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

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.

Column continues below
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


Jennifer Van Bergen, a journalist with a law degree, is the author of THE
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.

As they say, you can’t teach an old dog new tricks—although you can drag an old fascist out of the shadows and have him say a few pertinent things contrary to the growing belief of the American people that the occupation of Iraq is a dismal failure. It should be noted that the Iraq invasion and occupation is not a dismal failure—Iraq is a morass of violence, chaos, and covert operations designed to splinter the country into small and ineffectual statelets (or ethically determined fiefdoms) and is precisely what the neocons want.

Henry Alfred Kissinger, Heinz Alfred Kissinger, Butcher of Cambodia

Main Page - Wednesday, 11/09/05

Message Board by American Patriot Friends Network [APFN]


messageboard.gif (4314 bytes)