It was back in June 2008 that the British legal charity Reprieve issued a report alleging “the United States may have used as many as 17 ships as floating prisons.” Moreover, the group claimed “about 26,000 people are being held by the U.S. in secret prisons — a figure that includes land-based detention centers.” The Defense Department, of course, denied anything untoward.
Of course, these were the bad, old days of the Bush/Cheney administration, and things were supposed to be different under the new Obama administration. But since Obama came into office, despite claims things would be different, and executive orders issued by the then-incoming President, evidence continues to grow that many of the old habits of torture and illegal detention remain part of the arsenal of the Obama Defense Department.“We do not operate detention facilities on board Navy ships,” said Navy Cmdr. Jeffrey Gordon, a Pentagon spokesman. “Department of Defense detention facilities are in Iraq, Afghanistan and Guantanamo Bay.”
Egregious practices amounting to torture still remain in the Army Field Manual, and in particular its Appendix M. Reports have been made by major U.S. press about ongoing abuse or torture at the U.S. Bagram facility in Afghanistan. The administration continues to support a rendition program (with its paper-thin guarantee of “promises” by torturing nations that they won’t torture). And of course, Guantanamo remains open.
Now, with the news about Somali prisoner Ahmed Abdulkadir Warsame, we are hearing that — at least — this detainee (and it begs the question how many more like this), was held for two months as a ghost prisoner on a U.S. ship in international waters, uncharged, without access to attorneys or notification of the International Red Cross. In other words, he was held illegally. Now he’s being charged in U.S. courts with terrorism.
It’s not like the military has been completely hiding the fact they have been using naval ships to hold prisoners. As Adm. William H. McRaven told his Senate confirmation hearing last week (McRaven is to be the new head of Special Operations Forces) the U.S. will use ships to detain prisoners captured outside Afghanistan.
As the L.A. Times quoted him, “‘In many cases, we will put them on a naval vessel and we will hold them until we can either get a case to prosecute them in U.S. court,’ send them to a third country or release them.”
Back in 2008, Reprieve explained what their research had uncovered even back then. Reprieve legal director Clive Stafford Smith told Democracy Now’s Amy Goodman:
Today, Center for Constitutional Rights issued a press release condemning the use of ships as floating prisons, and the resulting violations of domestic and international law. The press release also asks a number of pertinent questions. In the reprint of this release, reproduced below, let the press corps take notice, and ask these questions of relevant governmental authorities, from the White House to the Pentagon to Congress.And we’ve identified thirty-two prison ships, sort of prison hulks you used to read about in Victorian England, which have been converted to hold prisoners, and we’ve got pictures of them in Lisbon Harbor, for example. And these are holding prisoners around the world, as well. And there’s a bunch of proxy prisons — Morocco, Egypt and Jordan — where this stuff is going on. And this is a huge concern, because the world focus is on Guantanamo Bay, which really is a diversionary tactic in the whole war of terror or war on terror, whatever you’d like to call it. And actually, most of these people who have been severed from their legal rights are in these other secret prisons around the world.
If Congress had any backbone, and it doesn’t, there would be immediate hearings on this. But the GOP of course isn’t interested, and the Democratic Party is loathe to do anything that might bring the military or interrogation under review going into an election year, and also because, well, they share with the GOP a jonesing for “war on terror” activities. Witness their support for Obama’s military adventure in Libya.While we join with those praising the Obama administration for charging Ahmed Abdulkadir Warsame before a federal court rather than a flawed and lawless military tribunal, and rather than holding him indefinitely without charge, we condemn the administration for holding and interrogating Mr. Warsame incommunicado for more than two months on a U.S. naval ship. Under our domestic and international law, he should have been treated like a civilian criminal suspect and brought to the U.S. for trial immediately.
Moreover, according to The New York Times, the administration did not notify the International Committee of the Red Cross of Mr. Warsame’s capture until approximately two months after his detention. This is illegal and inexcusable. It means in effect that Mr. Warsame was disappeared for this period with all the attendant dangers such hidden detention engenders. It is reminiscent of early Guantánamo Bay and CIA “black site” detention.
We also question under what authority Mr. Warsame was captured and detained. The administration must clarify whether it claims authorization to capture and detain him under the 2001 Authorization to Use Military Force. Such authority only extends to those involved with the 9/11 attacks, and his relationship to those attacks seems remote or nonexistent. Rather, it appears that the administration is stretching the meaning of that law to capture and detain, perhaps indefinitely, anyone it claims is a terrorism suspect anywhere in the world. Such actions undercut the important criminal protections to which every suspect is entitled. Those protections kick in upon arrest and not two months after the fact.
Even accepting the administration’s argument of laws of war, it is illegal under any circumstance to hold people at sea except pending transfer to land and not for purposes of interrogation outside the law. That provision was written into the Geneva Conventions and U.S. military regulations, most likely in response to Japanese abuses of American prisoners aboard ‘Hell Ships’ in World War II.
The administration must answer a host of questions surrounding this action:
First are questions regarding the legal authority for Mr. Warsame’s capture and detention.
*** Under what legal theory and under what power was the administration operating to justify his capture and detention?
*** If the administration claims authority under the AUMF, how would that have justified the detention given that there is supposed to be an explicit tie to 9/11 in those cases?
*** Does the administration believe we are engaged in armed conflict in Somalia sufficient to trigger application of the laws of war? With the Shabab?
*** If Mr. Warsame was purportedly held in connection with an armed conflict, what does the administration claim his status was under the laws of war?
*** Does the administration claim that Congress has authorized armed conflict with the Shabab?
Second are questions concerning his treatment once captured.
*** Under what authority does the administration claim it may hold a person beyond fourteen days without notifying the Red Cross?
*** How long does the administration claim they may hold a person without procedural protections (e.g., access to counsel and being informed of the right to habeas corpus) before they are prosecuted?
*** How can Mr. Warsame’s Miranda waiver have been genuinely voluntary if he was only read his rights two months into his incommunicado detention and interrogation, even after a supposed “break”?
*** Was Mr. Warsame allowed contact with his family?
*** Separate and apart from authority to detain, what authority did they have to interrogate him?
Third are questions regarding how widespread is the practice under which Mr. Warsame was held.
*** How many other people are floating around on U.S. prison ships?
*** How many of those are unknown to the Red Cross?
The proper way to handle Mr. Warsame was the way the U.S. handled other pirate cases in 2009 and 2010: suspects were brought to the U.S. to face criminal charges in New York and Virginia within days of capture at sea. The Obama administration appears to have created a floating legal black hole, just as Guantánamo Bay was originally conceived: no Red Cross, no lawyers, no habeas – no rights.
We more than ever need an independent political force in this country that will confront the unlawful actions of the military and intelligence agencies. But right now, the Empire is in the driver’s seat, and all we can do is protest and demand that something be done.