1.Preface

Behind the Wire-i

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Then Human Rights First originally published its Ending Secret Detentions report last June, the Pentagon was just beginning a series of intemal investigations related to allegations of torture and abuse by U.S. authorities in the course of global U.S. detention and interrogation operations. The Coalition Provisional Authority, established by the United States, still held power in Iraq. And the U.S. Supreme Court had heard but not yet ruled on the first three major terrorism-related cases to come before it.

The developments of the past nine months have yielded some significant insights about U.S. detention and interrogation operations around the world, and about the legality of the policies that have animated them. Almost a year since the photos from Abu Ghraib thrust U.S. detention operations into the international spotlight, this report updates our assessment of where U.S. operations stand.

The U.S. Government has taken several positive steps since last year in some effort to normalize detention operations overseas. The month after Ending Secret Detentions was published, and more than a year after U.S. military operations began in Iraq, the Pentagon announced the creation of a new Office of Detainee Affairs, charged with correcting basic problems in the handling and treatment of detainees, and with helping to ensure that senior Defense Department officials are alerted to concerns about detention operations raised by the International Committee of the Red Cross (Red Cross). While the effect of this new structure remains unclear, it has the potential to help bring US. detention policy more in line with U.S. and international legal obligations.

The Pentagon has also conducted a series of important investigations into abuses in detention and interrogation operations in Iraq. Afghanistan, and at the US Naval Base at Guantanamo Bay. The reports that have been completed to date have helped to make clear that failures in planning and ambiguities in policy contributed to the confusion surrounding the US system of global detentions. Legally suspect advice to the President that the key elements of the Geneva Conventions need not apply to the conflict in Afghanistan was not coupled with meaningful guidance to soldiers in the field about what rules or procedures did govern the capture and treatment of detainees. The Defense Department also used a rotating set of designations to describe the status of detainees in US custody in Iraq - designations without clear meaning under the law of war or US military doctrine. Pre-war planning for Iraq did not include adequate planning for detention operations, and no central agency existed to keep track of detainees in U.S. custody, as required by military regulations implementing the Geneva regime. The first step in correcting such failures is identifying their source, and while several investigations remain outstanding and others have proven incomplete, the reports to date have played some constructive role in this effort.

Perhaps most important among the positive developments, Congress enacted legislation in October 2004 requiring the Secretary of Defense to report regularly to the relevant committees in the U.S. House and Senate on the number and nationality of detainees in military custody, as well as on the number of detainees released from custody during the reporting period. The law, which tracks many of

i-Preface

the recommendations of the original Ending Secret Detentions report, requires the Secretary to report on the legal status of those detained whether they are held as prisoners of war, civilian internees, or unlawful combatants - and to report whether detainees once held by the United States have been transferred to other countries. The legislation is, in many respects, declarative of existing law and policy. But its imposition of compliance deadlines - the first of which occurs on July 28, 2005 - provides an important opportunity for the Defense Department to make good on its statements in recent months that it is correcting the policy and operational failures it has identified.

Despite these welcome developments, the scrutiny of the past nine months has still failed to produce full answers to many of the most basic questions posed in our original report. How many individuals are held in U.S. custody both by military and intelligence agencies - in connection with the "global war on terror," and where are they held? Are "ghost detainees" still being held without access to visits from the Red Cross? Why are family members not promptly notified that their family member is in custody, or given information about their health or whereabouts? And significantly, what is the legal basis for these detentions, what limits exist on U.S. power to seize and detain, and what if any rights do the detainees have as a matter of law?

Far from diminishing in importance as U.S. missions in Afghanistan and Iraq mature, these questions are becoming more urgent as U.S. detention operations appear to be picking up permanence and pace. Last June, the Defense Department told Human Rights First that there were 358 individuals detained by the United States in Afghanistan. By January 2005, Combined Forces Command in Afghanistan reported the number was on the order of 500- an increase of 40 percent. The numbers in Iraq are also increasing. The United States now maintains eight official detention facilities in Iraq down from 11 at the height of the occupation last June. But in March 2005, the number of detainees officially reported held by U.S. forces in Iraq had risen to about 8.900 in permanent facilities and 1.300 in transient facilities - more than double the number in custody in October. and 60 percent more than the Coalition Press Information Center reported in custody nine months ago. In addition, the Pentagon has announced plans to build a new $25 million prison facility at Guantanamo Bay, where the

rotation of detainees in and out continues, with new arrivals as recent as September 2004. Beyond these well known facilities, and of particular concern, remain detentions in so-called "transient facilities" - field prisons designed to house detainees only for a short period until they can be released or transferred to a more permanent facility. Interviews conducted by Human Rights First with now-released detainees held by U.S. authorities in such facilities in Afghanistan and Iraq, consistent with the findings of official investigations, reveal conditions there that have been grossly inadequate. Many of the worst alleged abuses of detainees, including deaths in custody, have occurred in these facilities, where visits from the Red Cross are limited. Detainees are sometimes transferred from these facilities before they can be visited by the Red Cross, and deteriorating security conditions have compromised monitors ability to visit regularly or at all. While military officials have stated that detention in these facilities is now limited to 10-15 days maximum, the increasing numbers of detainees and deteriorating security conditions will make adhering to this commitment enormously challenging. Finally, we have leamed a great deal about the security policy consequences of U.S. detention operations. The Administration has argued that, faced with the unprecedented security threat posed by terrorist groups "of global reach," it has had to resort to preventive detention and interrogation of those suspected to have information about possible terrorist attacks. According to the Defense and Justice Departments, a key purpose of these indefinite detentions is to promote national security by developing detainees as sources of intelligence. And while much of what goes on at these detention facilities is steeped in secrecy, some intelligence agents have insisted that "[w]e're getling great info almost every day."

But the past nine months have seen growing evidence of the adverse security consequences of the United States' global detention system. As thirteen retired admirals and generals - including former head of the Joint Chiefs of Staff, General John Shalikashvili - noted in a letter to the Senate Judiciary Committee in January 2005, the United States' equivocal observance of the Geneva Conventions and attendant procedures in U.S. military operations has put our own forces at greater risk, produced uncertainty and confusion in the field, and undermined the mission and morale of our troops. The lack of a central system for detainee information has

A Human Rights First Report

Behind the Wre-1

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hile the United States has made it clear that it has arrested and detained tens of thousands of individuals in the 'war on terrorism" since September 11, 2001, it has provided scant information about the nature of this global detention system - information critical to preventing incidents of illegality and abuse. Since the release of Human Rights First's original report about this detention system in June 2004, the number of those held briefly declined as a result of an acceleration of detainee processing following the revelations at Abu Ghraib. But these numbers are now back on the rise - and official accounting of critical information continues to be minimal and conflicting

As was the case last year, some detention facilities remain well known - such as the U.S. Naval Base at Guantanamo Bay. Abu Ghraib in Iraq, or the US Air Force Base at Bagram, Afghanistan - but there is troubling information about inadequate provision of notice to families about detainees' location and condition, or conflicting statements about detainees' legal status. While the Red Cross has visited these facilities, their visits have in the past been undermined contrary to the letter and spirit of binding law. In other cases, the existence of the detention facility is acknowledged by the United States as in the case of transient detention facilities in Afghanistan - but very little else is known, particularly how many such facilities exist and the nature of the legal status and rights of those held there.

Finally, there remain cases in which the existence of the detention facility itself is not officially acknowledged but has been reported

by multiple sources - for example, Peshawar, Kohat and Alizai in Pakistan; a U.S. detention facility in Jordan,' and US military ships, particularly the USS Bataan and the USS Peleliu.“ In the absence of official acknowledgment of such locations, there is of course no information on whether they are in use, how many might be held at such facilities, whether their families have been notified, why those detained there are held, or whether the Red Cross has access to them. Indeed, the Red Cross has stated publicly that it does not."

U.S. concerns for the security of lawful detention facilities and for force protection are of course appropriate. But as the Secretary of Defense has acknowledged, it is contrary to US law and policy that information be withheld or classified without a basis in law. And it remains unclear how disclosing, in a comprehensive and regular manner, the following basic information endangers legitimate U.S. missions abroad:

• How many individuals are currently held by the United States at military or intelligence detention facilities in connection with the "global war on terror."

• What legal status have these detainees been accorded (e.g. prisoners of war, civilians who engaged directly in combat, or some other status) and what process is followed to determine this status;

• Have all detainees been afforded access to Red Cross officials,

Have the immediate families of the detainees been notified of their loved ones' location, status, and condition of health."