The CIA, the MCA, and Detainee Abuse

By Joanne Mariner
FindLaw
Nov. 10, 2006

The Bush Administration recently admitted that, over the past several years, the CIA has run a system of secret overseas prisons. It is believed that more than 100 terrorism suspects have been held in this covert system, at one point or another, over the last five years.

With the Supreme Court's landmark decision in the case of Hamdan v. Rumsfeld this June, the illegality of the CIA detention program became unmistakably clear. The Court ruled that al Qaeda suspects were protected by Common Article 3 of the Geneva Conventions, the protections of which do not allow the "disappearance" and torture of detainees.

The Hamdan decision reportedly scared CIA and high-level Administration officials, who feared possible criminal prosecution. It was one of the main factors leading to the Administration's recent decision to announce the suspension of the CIA detention program and the transfer of 14 CIA detainees to Guantanamo.

And it was the existence of the CIA program, not the need to prosecute terrorists (who, after all, have been successfully prosecuted in the federal courts for decades) that lies behind the recent passage of the Military Commissions Act of 2006 (MCA).

"Disappearance" and Torture of CIA Detainees

Detainees held in CIA facilities were effectively "disappeared." The International Committee of the Red Cross (ICRC) had no access to them; neither did any court or other independent monitoring authority, and their families had no idea where they were or even whether they were dead or alive.

According to the testimony of former detainees, as well as numerous intelligence sources, the detainees in the program were subject to serious abuses. In a recent book, author Ron Suskind claimed that CIA personnel threatened Khalid Sheikh Mohammed, thought to be the architect of the 9/11 attacks, by telling him they would harm his seven- and nine-year-old children. The United States had sunk, Suskind said, "into the darkest of ethical abysses."

The CIA also subjected Mohammed and a number of others to water-boarding, a form of torture that makes the victim feel like he is drowning.

While CIA director Porter Goss last year defended water-boarding as a "professional interrogation technique," few outside observers agree. Indeed, more than 100 law professors sent a letter to Attorney General Alberto Gonzalez earlier this year stating unequivocally that waterboarding constitutes torture, a felony punishable under U.S. law.

According to former CIA detainee Khalid el-Masri, the CIA also beat detainees, hung them up by their arms, stuffed them into suitcases so that they felt they were suffocating, and kept them for long periods of time in the dark.

Speaking on national television in early September, President Bush gave a full-throated defense of the CIA program, and of the so-called "alternative procedures" that the CIA had used to extract information from detainees. Despite the euphemisms Bush employed, his speech amounted to thinly-veiled justification of torture and "disappearance." (We heard more of the same, put even more bluntly, when Vice-President Dick Cheney said two weeks ago that subjecting prisoners to a "dunk in water" is a "no-brainer" if it saves lives.)

Bush also used his speech to unveil the Administration's proposed military commissions bill. The bill, which passed in late September in marginally improved form, contains a number of provisions that were crafted with the CIA detention program specifically in mind.

The CIA's Wish List

The MCA is a long and complex law with an array of interlocking provisions, but its concern for protecting the CIA program shows up in three main areas.

First, the MCA amends the War Crimes Act to decriminalize certain past abuses against detainees. The goal here was to immunize the CIA from domestic prosecution for the crimes it committed in interrogating the prisoners in its custody.

Second, the law allows military commission defendants to be tried and executed on the basis of coerced testimony, hearsay, and classified evidence that they have no meaningful way to confront. These provisions make it very likely that defendants will be prosecuted on the basis of statements taken from detainees previously held in the CIA program. And, although the law bars the admission of evidence obtained under torture, one can be certain that the Administration will continue to argue that water-boarding and other "alternative techniques" are not torturous.

Already, a precedent for this approach exists in the administrative tribunals used on Guantanamo to assess whether a detainee is an enemy combatant. It has been reported that testimony obtained from CIA detainees, as well as from Guantanamo detainees who have been abused, has been widely used as the basis for these tribunals' decisions.

Third, the MCA contains several provisions that are meant to bar the public from ever hearing direct testimony about the CIA's abusive methods. These provisions allow the government to protect the "sources, methods or activities by which the United States acquired evidence" if those practices are classified. Because the government has said that all "alternative" interrogation procedures are classified―indeed, in a recent court filing in a case filed on behalf of one of the former CIA detainees, it said that they are "Top Secret," the government's highest classification level―these provisions are likely to prevent military commission defendants from publicly revealing any information about their torture or mistreatment.

Nor will the defendants' attorneys be able to report these abuses on their behalf. Attorneys who represent Guantanamo detainees are required to sign agreements that restrict their ability to speak publicly. They must turn over all their notes and documents before they leave Guantanamo, and they can only speak about the information they have obtained from their clients after it undergoes classification review.

Only if the information is declassified can it be disseminated. But rest assured, information about CIA abuses will not be declassified. Moreover, with the new group of just-transferred CIA detainees, the Administration has already indicated in court filings that it wants to tighten the existing rules.

Crime and Cover-up

Everyone knows that after the crime, comes the cover-up. In this case, the government is not only taking aggressive steps to prevent its crimes from coming to light, it has also tried to ensure that when and if these crimes come to public attention, the perpetrators are protected from punishment.

Joanne Mariner is a human rights attorney.