2- The Known Unkowns

Afghanistan

Bagram was a much more depressing environment [than Kandahar]. It was, in every sense of the word, a dungeon.... It was impossible to spend any amount of time inside that facility and not have it affect you psychologically.

Chris Mackey (pseudonym)

US Army Interrogator in Afghanistan The interrogators 2004

Since November 2001, the United States has operated approximately 25 detention facilities at various times in Afghanistan. According to CENTCOM, the U.S. unified military command with operational control of U.S. combat forces in the region, there remain two main detention facilities in Afghanistan: the Collection Center at the U.S. Air Force Base in Bagram and a detention center at Kandahar Air Force Base.* Since June 2004, the Defense Department has upgraded the detention facility at Kandahar Air Force Base from an intermediate site - where detainees awaited transportation to Bagram - to a main holding facility.*

Numerous sources continue to report an additional interrogation facility under CIA control at Bagram, reportedly known as "the Salt Pit." In early 2002, CIA officials refused military interrogators access to prisoners detained at the CIA facility; some prisoners were eventually transferred from the CIA facility to Bagram or Kandahar." In November 2002, one Afghan detainee, held in the Salt Pit, was stripped, chained to the floor and left overnight without blankets in the cold." By morning he had frozen to death. The detainee was never registered on any detainee logs, including the CIA's "ghost detainee logs." The fate of others held at the CIA facility remains unknown, including that of Khalid Sheikh Mohammed, who in March 2003, was reportedly transferred from the CIA interrogation facility to an undisclosed location."

In addition to these main detention facilities, CENTCOM acknowledges a series of "field detention or transient holding areas located at the forward operating bases" that are used to hold detainees until they may be transferred to a main holding facility - either to Kandahar or Bagram." The number of these transient facilities is not publicly available, and change as "units move and combat operations change.""" Some press reports put the total number of

these

facilities at 20.1

Press reports, as well as interviews of released detainees conducted by Human Rights First in August 2004, confirm that US. transient facilities include sites in or near Asadabad," Gereshk, Jalalabad, Tycze," Gardez, and Khost. These facilities have at times seen extensive use since early 2002," with released detainees reporting stays of up to 30 days as recent as early 2004. Several detainees held from fall 2003 to winter 2004 report being detained in small windowless rooms; toilets were in public places and provided no privacy." Others report being detained in large areas without roofs, with intense heat or cold depending on the season." More recently, in September 2004, the family of Sher Mohammed Khan trayeled to a U.S. firebase near Khost to collect Khan's body. Mr. Khan, along with his cousin, was taken by US forces during a raid on his house. His brother was reportedly killed by U.S. forces during the raid. Despite reports from the family that Mr. Khan's body showed signs of abuse, U.S. officials contend that Mr. Khan was killed while in U.S. custody by a snake bite." His cousin's whereabouts remain unknown."

20

Mehboob Ahmad lives in Afghanistan. In June
2003, he was detained by US. military forces in
Afghanistan and taken to the US run detention
facility in Gardez and Bagram Air Force Base. Mr.
Ahmad remained in U.S. custody for approximately
five months. While in detention, U.S. officials threat-
ened Mr. Ahmad with transferring him to
Guantanamo Bay. The conditions of his detention
were difficult. He charges that he was detained
outside for a period of weeks without any protection
from the intense cold or heat and interrogated for
several hours every night in order to humiliate him
He also says that U.S. officials insulted his mother,
wife, and sister and implied that they would rape his
wife. He was eventually released in
November 2003, with papers stating that he "pose[d]
no threat to the United States Armed Forces."

Human Rights First Interview with Mehboob
Ahmad, August 18, 2004.

A report by the Army Inspector General released in July 2004 recognized that conditions in these transient facilities were inadequate for holding individuals for more than two weeks."

Behind the Wre-3

Combined Forces Command (CFC) in Afghanistan stated in October 2004 that by rule detainees were now to be held at these transient facilities for less than 10 days, and detention beyond this period requires the approval of a commander. Human Rights First was unable to confirm whether U.S. personnel were complying with this rule.

In all events, the time limit may now be tested, as the number of detainees in Afghanistan has increased significantly over the last nine months. Prior to June 2004, the Defense Department had a policy of keeping the number of detainees in Afghanistan classified, citing "ongoing military operations and force protection concerns." In June 2004, however, the Defense Department told Human Rights First that there were 358 individuals detained by the United States in Afghanistan." (Other reports at the time put the number slightly higher at about 380. By October 2004, CFC officials reported the number of detainees held by the United States had increased to 550. Despite recent statements by U.S. officials suggesting fewer detentions, the number of detainees in Afghanistan remained well above the number last summer, at approximately 500 in January 2005. More recently, the Combined Forces Command has reimplemented its earlier policy of keeping the numbers of detainees in Afghanistan classified. No reason was provided for this change in policy."

It is unclear where among the known facilities the growing number of detainees is held. According to the Army Inspector General, the detention facility at Bagram can house up to 275 detainees." The number of detainees that can be held at Kandahar is uncertain due to ongoing construction, but the Army Inspector General reported that in August 2004 the facility at Kandahar "held anywhere from 23-40 detainees. In light of reported conditions at the transient sites, continued use of these facilities for extended periods of detention would raise serious concerns.

Red Cross access to detainees in Afghanistan has improved somewhat since the release of the Ending Secret Detentions report in June 2004, but it remains limited. The Red Cross continues to visit detainees in Bagram, but does not meet with detainees immediately after arrest." The Red Cross had visited detainees at Kandahar early in the war, from December 2001 to June 2002. As evidence emerged that the United States continued to hold some suspects for longer periods at Kandahar, the Red

40

Cross asked to be allowed to visit the facility again. After considering the request for three weeks, the Pentagon agreed to begin making arrangements to allow the Red Cross access." The United States officially allows Red Cross observers to visit all detainees held for more than 15 days." But the time lag in Red Cross access to detention facilities is troubling in light of Pentagon findings that significant abuse has occurred in the first two weeks of detention while interrogations and screenings closer to the point of capture are conducted. Among reported instances was one involving 18-yearold Afghan soldier, Jameel Naseer. Press reports indicate that he was detained at the U.S. firebase in Gardez along with seven other Afghan soldiers. All eight were tortured for approximately two weeks while in Gardez. Naseer died in U.S. custody in Gardez as a result of the torture he suffered.

Red Cross representatives, as well as some US Army officials, have also publicly expressed concern that detainees in Afghanistan continue to have no clear legal status." The Red Cross has emphasized that even as the periods of detention at Bagram increase, "the US authorities have not resolved the questions of [the detainees'] legal status and of the applicable legal framework."

According to Pentagon investigations into allegations of torture and abuse by U.S. officials. the lack of clarity of detainees' legal status stems from policy decisions early in the war in Afghanistan. in October 2001, CENTCOM Commander General Tommy Franks issued an appropriate order, following Army Regulations and decades of military practice, providing that the Geneva Conventions were applicable to all captured individuals in Afghanistan." The first detainee was seized in Afghanistan in November 2001. The CENTCOM policy remained in effect until February 7, 2002, when President Bush issued an order declaring that Al Qaeda detainees were not protected by the Geneva Conventions, and Taliban prisoners were not entitled to the protections of prisoner of war status under the Conventions.55

Since then, detainees in Afghanistan have been defined variously as "unlawful combatants." "enemy combatants," or "unprivileged belligerents." According to the Army Inspector General, most detainees in Afghanistan are classified as civilian internees and subclassified in categories not provided for by Army doctrine, such as "Persons Under U.S. Control, Enemy Combatant, and Low-level Enemy

4-The Known Unkowns

Combatant." The Army Inspector General noted that, "due to the suspension of the Geneva Conventions, soldiers were no longer able to keep up with legal status determinations for "a large number of detainees in a short period of time as required in the Afghanistan theater." A separate Pentagon inquiry into torture and abuse concurred that the Administration's policy regarding detainees was "vague and lacking. According to the Combined Forces Command, the United States is holding detainees in Afghanistan under UN "Security Council Resolutions 1368, 1373, and 1566 directing States to take necessary steps to prevent the commission of terrorist acts"; further guidance is reportedly provided by the President, Secretary of Defense, and the Joint Chiefs of Staff." The Department of Defense has classified all "further guidance."" To date, the Administration has not publicly clarified the detainees' legal status.

Mohammed Karim Shirullah was detained in Afghanistan by U.S. military personnel in December 2003 and remained in U.S. detention facilities in Afghanistan until his release in June 2004. Mr Shirullah was imprisoned at the U.S.-run 'transient facility' in Gardez and at Bagram Air Force Base While in detention, Mr. Shirullah says that he was placed in solitary confinement in a windowless room with limited access to other people for more than a month. At other times, he was forced to wear opaque goggles Mr. Shirullah charges that he was severely beaten by U.S. forces. Because a resultant ear injury went untreated for six months, he lost hearing in one ear. He says that he now has difficulty sleeping without medication.

Human Rights First Interview with Mohammed Karim Shirullah, August 18, 2004.

From interviews with those released from detention facilities in Afghanistan (or interviews with their families), the United States does not appear to have followed a standard family notification policy there. For example, the family of one former detainee at Bagram Air Force Base, Saifullah Paracha (recently transferred to Guantanamo Bay), was notified of Saifullah's detention at Bagram not by the United States, but by the Red Cross." The family of Moazzam Begg (formerly detained at Kandahar) was also informed of Begg's detention via the Red Cross." A CFC official reached by Human

Rights First was unaware of any "official" policy on family notification."

Closely linked with the requirement of notifying families of the detention of their loved ones are Army Regulations mandating the establishment of a comprehensive detainee information database. The required database is to include the personal information of each detainee, date and place of capture, "name and address of a person to be notified of the individual's capture. 87 As of December 2004, no such central database had been established for Afghanistan. This apparent continuing failure comes despite military investigations finding that military personnel at points of capture and collection facilities have failed to adequately document detainees' personal information. The Army Inspector General in particular concluded that the lack of a central system for detainee information exacerbates families' difficulty in trying to locate their relatives and has hindered U.S. efforts to obtain information from the detainees.

Iraq

More aggressive U.S. military operations in iraq over the past two months have generated a surge in detainees, nearly doubling the number held by U.S. forces.

Maj. Gen. Geoffrey Miller quoted in the Washington Post, November 27, 2004

The United States continues to maintain eight official detention facilities in Iraq - down from 11 at the height of the occupation last June." This number includes three main facilities in Iraq: Camp Redemption and Camp Ganci both located at Abu Ghraib near Baghdad; Camp Cropper near the Baghdad Airport; and Camp Bucca near Umm Qasr close to the Kuwaiti border." In addition, five facilities are under division or brigade command, including the 1st Infantry Division DIF; 1st Marine Expeditionary Force DIF: 1st Cavalry Division DIF; MultiNational Division-Central: and Multi-National Brigade North. (An additional facility. Camp Sheba, is run by the Multi-National DivisionSoutheast under British command.") By policy, detainees may be held in brigade or division facilities for up to 14 days before being released or transferred to a main facility."

In November 2004, following an increase in U.S. military engagements in Iraq, the U.S. head of Iraqi detainee operations, Maj. Gen.

Behind the Wire - 5

Geoffrey Miller, stated that the number of detainees held by or in connection with U.S. forces in Iraq had risen to about 8,300 - more than double the number in custody in October 2004. Of the 8.300 detainees, according to Maj. Gen. Miller, about 4,600 were held at Camp Bucca, about 2,000 at Abu Ghraib, and about 1,700 remain in the custody of field commanders. By March 2005, the total number of detainees had risen again - to at least 8.900 in permanent facilities and 1,300 others held at transient facilities throughout Iraq." The number of total foreign detainees held in Iraq is approximately 330." As of December 5, 2004, multi-national forces in Iraq held 65 children under the age of 16." A spokesman for the multi-national forces indicated that child detainees are separated from the adult population in detention centers unless they have immediate family members detained in the same facility."

Arkan Mohammed Ali is an Iraqi citizen. U.S. military personnel detained him in Iraq over a period of almost one year, from July 2003 until June 2004. During the period of his imprisonment, he was transferred to a number of different detention facilities in Iraq, including a civil defense station and a military prison in Baghdad, and at Abu Ghraib. At least one of the detention centers in which Mr. Al-Hasnaw was detained had a "silent tent" where he says that detainees were prohibited from sleeping. According to Mr. Al-Hasnawi any individual detained in the "silent tent" appearing to fall asleep would be beaten by soldiers. In other instances, Mr. Al-Hasnawi says that he was severely beaten by US officials, subjected to sleep deprivation, and threatened with transfer to Guantanamo, where he was told U.S. soldiers could kill detainees with impunity. Upon his release, Mr. Al-Hasnawi charges that a U.S. official threatened him, telling him that he would never see his family again if he spoke about the conditions of his detention.

Human Rights First Interview with Arkan
Mohammed Ali, August 11, 2004.

The legal status accorded to US-held detainees in Iraq has shifted repeatedly over the course of the conflict. In April 2003, shortly after the outset of armed conflict, the Defense Department stated flatly that the Geneva Conventions would govern detainees in Iraq - the Third Geneva Convention applying to prisoners of war and the Fourth Geneva Convention for

the protection of civilians to all others." In May 2003, the U.S. Government seemed briefly to introduce a new category of detainees - "unlawful combatants" - a term that had been used at times to describe suspected Al Qaeda and Taliban fighters in Afghanistan." But the "unlawful combatant" designation was soon dropped, and on September 16, 2003, Brig. Gen. Janis Karpinski, commander of the 800th Military Police Brigade, announced that more than 4,000 people were being held as "security detainees." This apparently new category, announced in September 2003, was separate from prisoners of war and criminal detainees. It applied to those believed to pose a threat to coalition forces in Iraq."2

The "security detainee" designation is not mentioned in the Geneva Conventions, or in existing Army regulations. This contributes to the confusing, ambiguous and in several respects, unlawful - procedures for the treatment and processing of detainees." For example, under the Fourth Geneva Convention govering the treatment of civilians by an occupying power. there are two narrow bases on which an occupying power can detain civilians: (1) if it is "necessary. for imperative reasons of security," or (2) for criminal prosecutions.** But, as the Army Inspector General's report of July 2004 made clear, some fraction of those detained in Iraq were held for the purpose of intelligence collection - an impermissible basis, standing alone, for depriving Iraqis of liberty under the Geneva regime. The failure to follow the letter of the law or indeed any settled policy - goveming detainees' legal status contributed to severe problems of accountability, security, and reporting now well documented in official reports.

The legal status of nearly 4,000 members of the Mujahideen-e-Khlaq (MEK), an Iraqi-based organization seeking to overthrow the government in Iran (and listed as a terrorist organization by the U.S. State Department), was similarly unsettled. In early January 2004, Brigadier General Mark Kimmitt, Deputy Director for Coalition Operations, commented that the status of MEK detainees was being determined, but when Human Rights First asked the Coalition Press Information Center for information on the detainees' status six months later in June 2004, the CPIC refused to respond." Then, in July 2004, immediately before the transfer of sovereignty, the Pentagon informed the MEK detainees that the MEK members were being designated "protected persons," entitled to rights under the Fourth

6- The Known Unkowns

Geneva Convention for the protection of civilians. Since this general determination, however, it is unclear what if any steps have been taken to resolve the status of individual MEK members still held under U.S. control."

The use of novel status designations to avoid Geneva Convention obligations extended beyond military personnel to include CIA officials working in the region. A March 2004 memorandum by Jack L. Goldsmith III, then U.S. Assistant Attorney General, sought to establish a legal basis for the transfer by U.S. military and intelligence officials of certain "protected persons" seized in Iraq to locations outside of Iraq for interrogation." Article 49 of the Fourth Geneva Convention categorically prohibits the forcible transfer or deportation of "protected persons" outside occupied territory. Nonetheless, CIA officials had begun transferring detainees in April 2003, and reportedly transferred as many as a dozen people out of Iraq. Among these was an Iraqi detainee known as Triple X, whose transfer and interrogation was authorized by Secretary of Defense Rumsfeld." Triple X was eventually returned to Iraq for further detention, but the Red Cross was not informed of his whereabouts for eight months.** The ambiguity about the application of Geneva protections in Iraq extends beyond just a handful of high-value captives. Roughly 330 foreign fighters are currently in U.S. custody in Iraq and "have been deemed by the Justice Department not to be entitled to protections of the Geneva Conventions. The foreign detainees, whose numbers swelled by more than 140 after U.S. troops entered Fallujah in early November, may soon "be transferred out of the country for indefinite detention elsewhere."""

If the legal status of U.S.-held detainees in Iraq was unsettled during the invasion and occupation, it remains so following the United States' June 28, 2004 transfer of sovereignty to the Interim Government of Iraq. The United States today asserts the power to detain individuals in Iraq not as an occupying force, but pursuant to UN Security Council Resolution (SCR 1546), which recognizes Iraq's request for ongoing security assistance and gives multinational forces "the authority to take all necessary measures to contribute to the maintenance of security in Iraq." In a letter to the President of the UN Security Council annexed to the UN Resolution, former Secretary of State Colin Powell seemed to adopt the Geneva Convention standard for detention by an occupying power, writing that the United States would

interpret SCR 1546 as authorizing "internment where... necessary for imperative reasons of security." He added that U.S. and allied forces in Iraq "remain committed at all times to act consistently with their obligations under the law of armed conflict, including the Geneva Conventions, "100

101

Despite this statement, the thousands still held in Iraq today remain governed by an ambiguous set of legal strictures. Of the approximately 8,000 prisoners of war the CPIC says were processed during the occupation, the CPIC stated in July 2004 that all had either been released, transferred to Iraqi custody to face criminal charges (as in the case of Saddam Hussein and eleven of his senior associates), or reclassified as "security detainees. The United States itself now officially holds only "security detainees - a category that may refer to those who may be held "for imperative reasons of security" under SCR 1546, but that remains unclear. At a minimum, the United States is bound in its detention operations by relevant U.S. law constraining government conduct, as well as by Common Article 3 of the Geneva Conventions and customary international law (barring torture and humiliation, and requiring a basic level of humane treatment).

Sherzad Kamal Khalld was detained by U.S. forces in Iraq for approximately two months. He was incarcerated in at least two separate detention facilitiesat al-Qasr al-Jumhouri and al-Qasr al-Sujood. While in U.S. detention, he developed a stomach infection, which went untreated. Upon his release, he was diagnosed with a stomach illness caused by lack of medical attention to his stomach infection and may need stomach surgery.

Human Rights First Interview with Sherzad Kamal Khalid, August 11, 2004.

During the war and occupation, Red Cross access to detainees held in U.S.-run facilities in Iraq was incomplete. While the United States afforded Red Cross access to some facilities, it hid particular prisoners within those facilities from Red Cross monitors.104 Some detainees were never registered on official logs as present in detention facilities at all 10 General Paul J. Kem, commander of U.S. Army Materiel Command, has suggested that this practice of keeping "ghost detainees," at least once authorized by the Secretary of Defense himself, extended beyond a handful of “high-value" de