The Associated Press reported today on the existence of classified detention sites being run by the Joint Special Operations Command in Afghanistan, where detainees are held for weeks in secret for the purposes of interrogation. Daphne Eviatar, a senior associate at Human Rights First, recently interviewed several former detainees who had been held at these facilities. This morning, I asked her a few questions about these sites, whether they're legal, how they compare to the black sites, and whether or not they're consistent with President Obama's executive orders on detainee treatment.
When you say the U.S. military is operating secret detention sites in Afghanistan, what do we mean by secret? Do you mean the Red Cross isn't given access to the detainees?
Not exactly. The government has denied that they're secret because we know that they exist, they call them "classified facilities." It's not clear if the ICRC has access, and the ICRC has not said publicly that they have access. That's really a question. It's not clear even if they have access to the facility, they have access to the detainees, and also at what point they have access to the detainees. Usually, the ICRC does not have access in the first couple of weeks of detention, mostly these facilities seem to be used for initial screening, 14 days. So it's not clear the ICRC has access to the detainees during that time period. Unfortunately the ICRC does not talk about what they have access to.
Are these sites lawful?
The site itself might be lawful, it might be lawful to have a separate interrogation site. The concerns are about whether people are being treated more harshly there and in a way that could violate international law. The truth is we don't know, we don't have enough information about it. Some of the concerns that were raised by former detainees include: they're not able to sleep because the light is on 24 hours a day, and they're interrogated in the middle of the night. Which suggests there might be uses of sleep manipulation or sleep deprivation as an interrogation tactic, which raises serious concerns.
One of the things that wasn't mentioned in the AP story but which I think is important and might help explain why the government says this doesn't violate the law, is that this all seems to be consistent with Appendix M of the U.S. Army Field Manual, which allows certain kinds of unusual interrogation techniques that can be abusive on high-level detainees. So for example, sleep manipulation, in combination with isolation for prolonged periods of time is allowable under Appendix M. We have concerns about whether that can, if that's used for prolonged periods of time, and in certain combinations, that it could rise to the level of abuse that could violate international law.
Are the interrogation techniques being used consistent with Obama's executive order on interrogations?
The executive order said he would abide by the Army Field Manual. In that sense, yes, nothing that we've heard would explicitly violate the Army Field Manual. But Appendix M of the Army Field Manual is a problem, and that was amended during the Bush administration in 2006. The previous Army Field Manual had said you could not use sleep deprivation as an interrogation tactic. The current version removed that, so now a set of techniques are allowed that could rise to the level of abuse depending on how they're used.
How do these detention sites compare to the CIA black sites in a legal sense? Does it matter that they're located in a theater of war and operated by the military?
Since we don't know about what's going on in them, if there's abuse going on because these sites areclassified and no one will talk about them, we can't know what's going on. In that sense, either people are being abused or they're not, it doesn't matter if it's the CIA or special forces.
It might matter in terms of protections -- the CIA might not be protected in various ways, they might not get immunity for their treatment in the way the military does, because they're not lawful combatants. For purposes of detention, for purposes of international human-rights law, it's the government so it doesn't matter if it's the CIA or the military. I want to stress that we don't have any reason to believe that people are being tortured in these sites, or that the kind of techniques were being used by the CIA in the black sites are still being used. We don't know that and have not heard that. On the other hand, we don't know if there are still CIA black sites, because by definition they're secret.
What is the upper limit on holding these people in these facilities?
Well, that's an interesting question. We had thought it was they weren't supposed to hold them there for more than 14 days, but according to the AP story, someone told the reporter that they can be held there longer. That's not inconsistent with the Army Field Manual, which does say that some people can be held in isolation longer for interrogation purposes if it's approved by a military commander. You couldn't do this to normal prisoners of war -- these rules only apply to unprivileged enemy combatants.
Isolation for 14 days, OK there's some reason for that. But if you're talking nine weeks of isolation plus sleep deprivation, that can rise to the level of abuse.
Are you worried about detainees being transferred to these sites from outside the theater?
We asked that a lot in Afghanistan, and we asked people who were in a position to know, and we did not hear that they're doing that. From what I understand, and again we don't know for sure, but the military says they have not picked up anyone outside of Afghanistan and brought them there, and other human-rights groups have confirmed that they don't believe that's happening either. It's possible people are being arrested in Pakistan and brought there, and we wouldn't know it. Since the Boumediene decision, they've been careful not to do that, because they're afraid of granting them habeas rights.
