<<previous  |  index  |  next>>

III. The Central Intelligence Agency: “Ghost Detainees” and “Disappearances”

In June 2004, U.S Secretary of Defense Donald Rumsfeld admitted that, acting upon a request by George Tenet, then-director of the CIA, he ordered an Iraqi national held in Camp Cropper, a high security detention center in Iraq, to be kept off the prison’s rolls and not presented to the International Committee of the Red Cross. The prisoner, referred to as “Triple X,” was reportedly a senior member of Ansar al-Islam, an organization apparently at the origin of several attacks in Iraq and linked to Al-Qaeda.⁷ Rumsfeld also admitted that there have been other cases in which detainees have been held secretly.⁸

Earlier, a U.S. Army investigation into the abuses of detainees at Abu Ghraib prison in Iraq sharply criticized this practice of keeping “ghost detainees.” According to the report of Maj. Gen. Antonio Taguba:

The various detention facilities operated by the 800th MP Brigade have routinely held persons brought to them by Other Government Agencies (OGAs) [i.e. the CIA] without accounting for them, knowing their identities, or even the reason for their detention. The Joint Interrogation and Debriefing Center (JIDC) at Abu Ghraib called these detainees “ghost detainees.” On at least one occasion, the 320th MP Battalion at Abu Ghraib held a handful of “ghost detainees” (6-8) for OGAs that they moved around within the facility to hide them from a visiting International Committee of the Red Cross (ICRC) survey team. This maneuver was deceptive, contrary to Army Doctrine, and in violation of international law.⁹

An Army report into intelligence activities at Abu Ghraib spoke of eight “ghost” detainees there who were kept off the prison's roster at the CIA's request. In one of those cases, in November 2003, a detainee brought to the prison by C.I.A. employees but never formally registered with military guards died at the site, and his body was removed after being wrapped in plastic and packed in ice.¹⁰

In later Congressional testimony, Gen. Paul Kern, the senior officer who oversaw the Army inquiry, told the Senate Armed Services Committee, “The number [of ghost detainees] is in the dozens, to perhaps up to 100.” Another Army investigator, Maj. Gen. George Fay, put the figure at “two dozen or so.” Both officers said they could not give a precise number because no records were kept and because the CIA refused to provide information to the investigators.¹¹

The CIA’s “Different Rules”

According to the Independent Panel to Review DoD Detention Operations chaired byformer Defense SecretaryJames Schlesinger, “the CIA was allowed to operate under different rules.” ¹² It is not clear what these rules are, however. The Army report into intelligence activities at Abu Ghraib found that “the perception that non-DOD agencies [i.e. the CIA] had different rules regarding interrogation and detention operations was evident.”¹³ The investigators complained that “The lack of OGA [CIA] adherence to the practices and procedures established for accounting for detainees eroded the necessity in the minds of Soldiers and civilians for them to follow Army rules.”¹⁴ They concluded that “CIA detention and interrogation practices led to a loss of accountability, abuse, reduced interagency cooperation and an unhealthy mystique that further poisoned the atmosphere at Abu Ghraib.”

The CIA’s “different rules” in the “global war on terror” can be traced in part to a secret August 1, 2002, Justice Department memorandum to Alberto Gonzales, the White House counsel, in response to a CIA request for guidance.¹⁵ That memo, prepared by Assistant Attorney General Jay S. Bybee (now a federal appeals court judge) said that torturing al-Qaeda detainees in captivity abroad “may be justified,” and that international laws against torture “may be unconstitutional if applied to interrogations” conducted in the war on terrorism. The memo added the doctrines of “necessity and self-defense could provide justifications that would eliminate any criminal liability” on the part of officials who tortured al-Qaeda detainees. The memo also took an extremely narrow view of which acts might constitute torture. It referred to seven practices that U.S. courts have ruled to constitute torture: severe beatings with truncheons and clubs, threats of imminent death, burning with cigarettes, electric shocks to genitalia, rape or sexual assault, and forcing a prisoner to watch the torture of another person. It then advised that “interrogation techniques would have to be similar to these in their extreme nature and in the type of harm caused to violate law.”¹⁶ The memo asserted that “physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” The memo also suggested that “mental torture” only included acts that resulted in “significant psychological harm of significant duration, e.g., lasting for months or even years.”

In June 2004, after the Bybee memo came to public light in the wake of the Abu Ghraib scandal, administration officials disavowed it, and said that it would be re-written.¹⁷

Press reports cited unnamed U.S officials as saying that the Bybee memo was prepared after a debate within the government about the methods used to interrogate alleged al-Qaeda leader Abu Zubayda (see below) after his capture in April 2002.¹⁸ Reports suggest that CIA interrogation methods were authorized by a secret set of rules that were endorsed by the U.S. Justice Department and the White House. These were said to include feigned drowning and refusal of pain medication for injuries.¹⁹ Indeed, according to the New York Times, “The methods employed by the CIA are so severe that senior officials of the Federal Bureau of Investigation have directed its agents to stay out of many of the interviews of the high-level detainees, counterterrorism officials said. The F.B.I. officials have advised the bureau’s director, Robert S. Mueller III, that the interrogation techniques, which would be prohibited in criminal cases, could compromise their agents in future criminal cases, the counterterrorism officials said.”²⁰

High-Level “Ghost Detainees” in Prolonged Incommunicado Detention

As this report details, the CIA is holding a number of “ghost detainees” in prolonged incommunicado detention. The most sensitive and high-profile terrorism suspects have been detained by the United States in “undisclosed locations,” presumably outside the United States, with no access to the ICRC, no notification to families, no oversight of any sort of their treatment, and in many cases no acknowledgement that they are even being held.

Human Rights Watch has pieced together below information on eleven such detainees who have “disappeared” in U.S. custody, though there may be more. They have been apprehended in places such as Pakistan, Indonesia, Thailand, Morocco, and the United Arab Emirates. Some were captured by the United States, and some were turned over to the United States by its allies. Almost all are allegedly leading members of al-Qaeda. Many are reported to have been tortured or mistreated in custody. Some are said to have provided valuable intelligence, some to have lied. The United States has acknowledged the detention of many, but not that of others. In each case, however, the United States has not only failed to register the detainees, but has also refused to disclose their fate or their whereabouts and thus removed them from the protection of the law for a prolonged period of time.

Refusal to Disclose the Fate or Whereabouts of the Detainees

The United States government has consistently refused to provide information on the fate or the location of the detainees listed in this report. Human Rights Watch has made repeated requests for information on Hambali’s location, legal status, and conditions of detention, for instance, none of which has been answered.²¹

The news media has had no more success, as evidenced by a report on ABC’s Nightline: “As for the details of where they are being held, exactly how they are being treated, and what the U.S. plans to do with them, that is all a secret. When asked why, an official from the CIA explained, that's a secret, too.”²²

The International Committee of the Red Cross has also repeatedly sought information on the detainees. In a March 2004 public statement, it noted:

Beyond Bagram and Guantánamo Bay, the ICRC is increasingly concerned about the fate of an unknown number of people captured as part of the so-called global war on terror and held in undisclosed locations. For the ICRC, obtaining information on these detainees and access to them is an important humanitarian priority and a logical continuation of its current detention work in Bagram and Guantánamo Bay.²³

In June, Erof Bosisio of the ICRC complained:

We are more and more concerned about the lot of the unknown number of people captured in the context of what we would call 'the war against terror' and detained in secret places…We have asked for information on these people and access to them. Until now we have received no response from the Americans.²⁴

According to the New York Times,

the agency has refused to grant any independent observer or human rights group access to the high-level detainees, who have been held in strict secrecy. Their whereabouts are such closely guarded secrets that one official said he had been told that [President] Bush had informed the CIA that he did not want to know where they were.²⁵

The United States has hindered other countries’ efforts to bring alleged terrorists to justice by refusing to make the detainees available as witnesses in criminal cases, including the cases against Zacharias Moussaoui in the United States and Munir al-Mutasaddiq in Germany, the only people in custody charged in the 9/11 plot.²⁶ In February 2004, a German court absolved `Abd al-Ghani Mizudi, an alleged member of the Hamburg terror cell, of complicity in the September 11 attacks “not because the court is convinced you are innocent,” but because the defendant could not “bear the burden of missing evidence” – the failure to produce Ramzi bin al-Shibh.²⁷

The United States has even refused to allow the Indonesian government to question Hambali, an Indonesian citizen, causing a strain in the relationship between the two countries. It also denied the Indonesian government access to Omar al-Faruq, even though he was arrested in Indonesia by Indonesian authorities before being turned over to the United States. ²⁸

Allegations of Mistreatment

International monitoring agencies have consistently stated that prolonged incommunicado detention itself is a form of prohibited mistreatment. The Inter-American Court on Human Rights has held that “prolonged isolation and deprivation of communication are in themselves cruel and inhuman treatment.”²⁹ Likewise, the Human Rights Committee found “prolonged incommunicado detention in an unknown location” to be “torture and cruel, inhuman treatment.”³⁰ The U.N. Commission on Human Rights has also noted “prolonged incommunicado detention … can in itself constitute a form of cruel, inhuman or degrading treatment.” ³¹

Worse, secret detention is the gateway to physical torture. “Disappearances” almost always lead to mistreatment, and most often to summary executions. Given the secrecy surrounding “disappearances,” it is difficult for outsiders to intervene to prevent these abuses. International bodies have repeatedly warned that holding detainees in prolonged incommunicado detention, with no judicial or ICRC oversight, is an open invitation to torture because of the removal of key safeguards against ill-treatment.

The former U.N. Special Rapporteur on Torture, Sir Nigel Rodley, has stated that “incommunicado detention is the most important determining factor as to whether an individual is at risk of torture.” ³²

The U.N. Commission on Human Rights in 2004 “remind[ed] all States that prolonged incommunicado detention may facilitate the perpetration of torture and can in itself constitute a form of cruel, inhuman or degrading treatment or even torture, and urges all States to respect the safeguards concerning the liberty, security and the dignity of the person.”

The current Rapporteur on Torture, Theo van Boven, has noted that “Incommunicado detention is aggravated when individuals are held in secret places of detention. … the maintenance of secret places of detention should be abolished under law. It should be a punishable offence for any official to hold a person in a secret and/or unofficial place of detention.” ³³ The U.N. declaration on disappearances says that: “Any person deprived of liberty shall be held in an officially recognized place of detention.”

Human Rights Watch has no first-hand information on the treatment of these detainees, but press accounts have repeatedly cited unnamed government officials acknowledging the torture or mistreatment of some of the detainees.

According to the New York Times, for instance, “C.I.A. interrogators used graduated levels of force [against Khalid Shaikh Muhammad], including a technique known as ‘water boarding,’ in which a prisoner is strapped down, forcibly pushed under water and made to believe he might drown.” ³⁴ (Muhammad’s two young sons were also taken into custody and there have been reports that the CIA is holding them as an inducement to make him talk. ³⁵ ) It was also reported that U.S. officials initially withheld painkillers from Abu Zubayda, who was shot during his capture, as an interrogation device. ³⁶   Tactics used by the CIA, according to the Washington Post, include “feigning suffocation, ‘stress positions,’ light and noise bombardment, sleep deprivation, and making captives think they are being interrogated by another government.” ³⁷

Allegations of abuse against these “disappeared” detainees is rendered all the more credible by recent revelations of the widespread mistreatment of detainees at Iraq’s Abu Ghraib prison and in other acknowledged U.S. detention centers in Afghanistan, Iraq and, to a lesser extent, Guantánamo Bay, Cuba. If abuses took place in these places, visited by the ICRC and subject, in theory at least, to various forms of oversight, it would not be surprising if abuse were also perpetrated against “ghost detainees” in secret detention centers where the recognized protections against mistreatment are not present. ³⁸

As a result of the Abu Ghraib scandal and related revelations, the CIA’s then-Director George Tenet reportedly ordered an investigation in May 2004 into the CIA’s interrogation tactics, and was reported to have scaled back some of its interrogation techniques. ³⁹

Intelligence Collection

United States officials are interrogating the “disappeared” detainees in secret locations to learn about al-Qaeda and to gather information to prevent future attacks. As the Pentagon's top lawyer, William J. Haynes II, said in a letter to Human Rights Watch (in which he eschewed the use of torture), “The United States questions enemy combatants to elicit information they may possess that could help the coalition win the war and forestall further terrorist attacks upon the citizens of the United States and other countries.” ⁴⁰

According to government officials, a number of the detainees have provided important, life-saving, information, as detailed more fully below. Secretary of Defense Donald Rumsfeld said as early as September 2002 that interrogation of captured terrorist leaders had yielded “an awful lot of information” and had “made life an awful lot more difficult for an awful lot of folks.” ⁴¹ Abu Zubayda’s information, for instance, was said to lead to the apprehension of others in this report, including Ramzi Binalshibh, Omar Faruq and Rahim al-Nashiri. As a result of Omar Faruq’s reported disclosures about preparations to attack American embassies in south-east Asia with explosives-laden trucks, the United States issued an alert and closed its embassies. Much of the report of the 9/11 Commission concerning the 9/11 plot is based on information provided by Khalid Shaikh Muhammad and Ramzi bin al-Shibh.

It is difficult to determine exactly what information has been provided by the detainees or to evaluate the U.S. government’s claims about what the detainees have said. (The United States would have various reasons to suggest that al-Qaeda leaders are talking: destroying their mystique, persuading others to talk, justifying the harsh treatment.) More to the point, it is impossible to know whether more or less information, or information of greater accuracy, could have been gathered had the detainees been held and treated in accordance with the law. A number of doubts have been expressed regarding the accuracy of the accounts provided by the “disappeared” detainees. ⁴² It was noted, for example, that two key detainees, Khalid Shaikh Muhammad and Ramzi bin al-Shibh, “appear to have been willing to provide elaborate accounts of past events. But they appeared to have been less willing to describe operations that have not yet been carried out, leading some of the intelligence officials to raise questions about the truthfulness of some or all of their statements.” ⁴³ An April 2003 CIA report on Khalid Shaikh Muhammad [“KSM”] that is cited in a footnote to the commission’s report refers in its title to Muhammad’s “Threat Reporting - Precious Truths, Surrounded by a Bodyguard of Lies,” and concluded that “protecting operatives in the United States appeared to be a ‘major part’ of KSM’s resistance efforts,” noting his “less than satisfactory explanations” for U.S. zip codes in his notebooks. ⁴⁴

These doubts grew after one “ghost detainee,” Ibn al-Shaikh al-Libi,a principal source for Bush administration claims that al-Qaeda collaborated with Saddam Hussein in the use of poison gas, recanted that assertion. (See section on al-Libi below.)

There is considerable evidence that information extracted by torture not as reliable as information drawn out of a witness by persuasive means. Indeed, after the Abu Ghraib scandal led to the curbing of a number of coercive practices used by interrogators on suspected Iraqi insurgents, the U.S. commander in charge of detentions and interrogations at Abu Ghraib said that the number of “high-value” intelligence reports drawn from interrogations of Iraqi prisoners had increased by more than half. Maj. Gen. Geoffrey Miller, who had previously run the detention center at Guantánamo Bay, Cuba, attributed the greater success to a system that encourages the establishment of a "rapport" between interrogator and detainee and bestows “respect and dignity” on the person being interrogated. Miller told reporters that, “In my opinion, a rapport-based interrogation that recognizes respect and dignity, and having very well-trained interrogators, is the basis by which you develop intelligence rapidly and increase the validity of that intelligence.” ⁴⁵

The National Commission on Terrorist Attacks upon the United States (the “9/11 Commission”) used detainee accounts in its telling of the story of the September 11 attacks. This is what it said about those accounts and their credibility:

Chapters 5 and 7 [regarding the 9/11 plot] rely heavily on information obtained from captured al-Qaeda members. A number of these "detainees" have firsthand knowledge of the 9/11 plot. Assessing the truth of statements by these witnesses—sworn enemies of the United States—is challenging. Our access to them has been limited to the review of intelligence reports based on communications received from the locations where the actual interrogations take place. We submitted questions for use in the interrogations, but had no control over whether, when, or how questions of particular interest would be asked. Nor were we allowed to talk to the interrogators so that we could better judge the credibility of the detainees and clarify ambiguities in the reporting. We were told that our requests might disrupt the sensitive interrogation process.

We have nonetheless decided to include information from captured 9/11 conspirators and al-Qaeda members in our report. We have evaluated their statements carefully and have attempted to corroborate them with documents and statements of others. In this report, we indicate where such statements provide the foundation for our narrative. We have been authorized to identify by name only ten detainees whose custody has been confirmed officially by the U.S. government. ⁴⁶

(For each of the eleven detainees profiled below, we state whether their detention has was listed as “confirmed officially by the U.S. government” by the 9/11 Commission.)

The 9/11 Commission reportedly “tried to find out about the treatment of the prisoners but could not.” ⁴⁷ It is disappointing that an official inquiry established by the United States Congress had nothing more to say about the U.S.’s use of prolonged incommunicado detention and about the possibility that these detainees were tortured in U.S. custody.

One 9/11 commissioner, Fred F. Fielding, asked how trustworthy Khalid Shaikh Muhammad’s information was. “Our concern is that while there's some that can be verified, there are other areas where it certainly could be a source of disinformation for whatever reason.” ⁴⁸ The Commission’s director noted that “some of this material has been inconsistent.” ⁴⁹ The 9/11 Commission noted areas in which the detainees’ accounts contradict each other or in which the Commission disbelieved what the detainees told interrogators. For example, it doubted the statement by Khalid Shaikh Muhammad that al-Qaeda had no agents in California to help two of the future hijackers. “We do not credit this denial,” the commission said. ⁵⁰ It found that Ramzi bin al-Shibh “has sought, somewhat incredibly,” to exculpate a host of individuals, from complicity in the 9/11 plot. ⁵¹ Again, it is impossible to say whether better information would have been obtained using more traditional, and legal, interrogation methods.