an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The CIA has been hiding and interrogating some of its most important al Qaeda captives at a Soviet-era compound in Eastern Europe, according to U.S. and foreign officials familiar with the arrangement. The secret facility is part of a covert prison system set up by the CIA nearly four years ago that at various times has included sites in eight countries, including Thailand, Afghanistan and several democracies in Eastern Europe, as well as a small center at the Guantanamo Bay prison in Cuba, according to current and former intelligence officials and diplomats from three continents. The hidden global internment network is a central element in the CIA's unconventional war on terrorism. It depends on the cooperation of foreign intelligence services, and on keeping even basic information about the system secret from the public, foreign officials and nearly all members of Congress charged with overseeing the CIA's covert actions. The existence and locations of the facilities -- referred to as "black sites" in classified White House, CIA, Justice Department and congressional documents -- are known to only a handful of officials in the United States and, usually, only to the president and a few top intelligence officers in each host country.
The CIA and the White House, citing national security concerns and the value of the program, have dissuaded Congress from demanding that the agency answer questions in open testimony about the conditions under which captives are held. Virtually nothing is known about who is kept in the facilities, what interrogation methods are employed with them, or how decisions are made about whether they should be detained or for how long. . . .
Although the CIA will not acknowledge details of its system, intelligence officials defend the agency's approach, arguing that the successful defense of the country requires that the agency be empowered to hold and interrogate suspected terrorists for as long as necessary and without restrictions imposed by the U.S. legal system or even by the military tribunals established for prisoners held at Guantanamo Bay. . . .
Since , the arrangement has been increasingly debated within the CIA, where considerable concern lingers about the legality, morality and practicality of holding even unrepentant terrorists in such isolation and secrecy, perhaps for the duration of their lives. . . .
It is illegal for the government to hold prisoners in such isolation in secret prisons in the United States, which is why the CIA placed them overseas, according to several former and current intelligence officials and other U.S. government officials. Legal experts and intelligence officials said that the CIA's internment practices also would be considered illegal under the laws of several host countries, where detainees have rights to have a lawyer or to mount a defense against allegations of wrongdoing.
Host countries have signed the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as has the United States. Yet CIA interrogators in the overseas sites are permitted to use the CIA's approved "Enhanced Interrogation Techniques," some of which are prohibited by the U.N. convention and by U.S. military law. They include tactics such as "waterboarding," in which a prisoner is made to believe he or she is drowning. . . .
Some detainees apprehended by the CIA and transferred to foreign intelligence agencies have alleged after their release that they were tortured, although it is unclear whether CIA personnel played a role in the alleged abuse. . . .
More than 100 suspected terrorists have been sent by the CIA into the covert system, according to current and former U.S. intelligence officials and foreign sources. This figure, a rough estimate based on information from sources who said their knowledge of the numbers was incomplete, does not include prisoners picked up in Iraq. The detainees break down roughly into two classes, the sources said. About 30 are considered major terrorism suspects and have been held under the highest level of secrecy at black sites financed by the CIA and managed by agency personnel, including those in Eastern Europe and elsewhere, according to current and former intelligence officers and two other U.S. government officials. Two locations in this category -- in Thailand and on the grounds of the military prison at Guantanamo Bay -- were closed in 2003 and 2004, respectively.
A second tier -- which these sources believe includes more than 70 detainees -- is a group considered less important, with less direct involvement in terrorism and having limited intelligence value. These prisoners, some of whom were originally taken to black sites, are delivered to intelligence services in Egypt, Jordan, Morocco, Afghanistan and other countries, a process sometimes known as "rendition." While the first-tier black sites are run by CIA officers, the jails in these countries are operated by the host nations, with CIA financial assistance and, sometimes, direction. . . .
Most of the facilities were built and are maintained with congressionally appropriated funds, but the White House has refused to allow the CIA to brief anyone except the chairman and vice chairman of the House and Senate intelligence committees on the program's generalities.
The Eastern European countries that the CIA has persuaded to hide al Qaeda captives are democracies that have embraced the rule of law and individual rights after decades of Soviet domination. Each has been trying to cleanse its intelligence services of operatives who have worked on behalf of others -- mainly Russia and organized crime. . . .
The agency set up prisons under its covert action authority. Under U.S. law, only the president can authorize a covert action, by signing a document called a presidential finding. Findings must not break U.S. law and are reviewed and approved by CIA, Justice Department and White House legal advisers.
Six days after the Sept. 11 attacks, President Bush signed a sweeping finding that gave the CIA broad authorization to disrupt terrorist activity, including permission to kill, capture and detain members of al Qaeda anywhere in the world.
As they say, read the whole thing. It raises some very difficult questions about the extent to which intelligence operations can, and should, operate pursuant to a clandestine law, accountable only to four elected legislators, and characterized by practices that would be plainly unlawful -- even as to these high-level suspects -- if they occurred within the United States.
I don’t like journalists having to go to jail because they refuse to identify their sources, but wouldn’t it be justified for a prosecutor to ask for the names of the informants that contributed to this WP story? I mean, it seems pretty obvious to me (I know that John Yoo thinks otherwise) that what is reportedly being done by the CIA is illegal, i.e. against US law. And if it isn’t, technically, illegal, it certainly makes the President’s words (“torture is never acceptable, nor do we hand over people to countries that do torture”) a lie, which would seem to me (but not to Prof. Woo) an impeachable offence.
How is the leak that led to this report a less serious illegality than the Plame leak? It is certainly a greater threat to national security. Under the Fitzgerald precedent, the reporter should be subpoenaed and the leaker strung by his thumbs. Either the Plame prosecution was a bad idea never to be repeated, or this story (and the hundreds like it) should be a prosecutor's employment act.
I can't help but say I told you so, to a certain extent. The revelation of these sites is going to cast a cloud over the McCain bill's efficacy for its stated claim of improving public diplomacy.
Without a comprehensive code of conduct on the CIA, one that governs its activities regardless of any technicalities, such as being outside of the "physical control" of the US government, torture and inhumane treatment driven by US policy will endure.
I don't quite see, Michael, how "the revelation of these sites is going to cast a cloud over the McCain bill's efficacy for its stated claim of improving public diplomacy."
The McCain bill, if it's enacted as is, would prohibit the CIA from engaging in conduct that shocks the conscience, which almost certainly would eliminate at least the most egregious of the techniques the agency is allegedly employing at the "black sites," such as waterboarding and false burial. Will McCain solve all the recent problems (e.g., prohibiting the "black sites" altogether)? Of course not: But it makes no pretense to being a comprehensive statute regulating every aspect of U.S. interrogation.
If I wanted to give this country a black eye, I would wait a few months after the McCain bill passed, then I would leak to the press the name and location of this facility in Eastern Europe, or a couple of others. It would undermine the idea that America is doing anything to resolve torture because the incremental move would be perceived as a cover-up, a mere attempt at PR, and not as a sincere effort to improve our legitimacy as an agent in the world promoting democracy, human rights, and an abolition of inhumane treatment and torture.
I don't have enough of a megaphone, really. I strongly encourage someone with your credibility and public stature to come right out and say that McCain's bill does not go far enough. I know that you are a person of conscience on this subject; you were the first to expose so many people, including me, to the games that the CIA is playing with what regulations on interrogation practice apply to which government agency. And I think if you were to amplify the message that so much more needs to be done, it would have a strong effect.
Options like the Torture Outsourcing Prevention Act proposed by Rep. Markey exist, and we should all be encouraging Senator McCain *now* to go the next step, and stop speaking so triumphantly about how much his amendment will accomplish. When I read his speech introducting the amendment, triumphalism is what I see - especially when he points out that he's merely codifying stated executive branch policy.
I think we are in agreement that McCain has a lot of stature after introducing the bill in the first place; he should be strongly pushed to start marching in the next direction. Without such pressure, I'm not sure he will use the capital he is building with this move to go there.
I am actually really concerned about this leak. The stated rationale for keeping these facilities "black" was that if their existence was known they would become targets of terrorist attack.
It seems to me that Special Access Program top secret materials are at least as sensitive, if not more sensitive, than a piece of confidential or secret level classified information regarding the employment status of a CIA desk officer who was formerly operational, and i believe the statues relating to classification authority and defining appropriate levels of classification support this contention.