Return of 'black site' prisons would be a return to darkness
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Black sites. Extraordinary renditions. These are actions and tools that by their very name lie outside the norm of ordinary behavior. And for good reason, as the disclosures and investigations regarding the United States' past use of such secret mechanisms and the accompanying torture and abuses document.

Late this month, The New York Times reported that President Trump is preparing to sign an executive order calling for review — and, most likely, reinstatement of — secret overseas prisons for the detention and interrogation of individuals captured in operations against al Qaeda, the Taliban, the Islamic State in Iraq and Syria (ISIS) and any other radical Islamist terrorist groups or those who assist, support or harbor such groups or individuals.

The order's precise genesis is unclear at this point. The Washington Post published a draft of the order, prompting White House Press Secretary Sean Spicer to deny it as a White House document, explaining that the author is "somebody who worked on the transition before who is not in the Trump administration. This is not a product of the administration."

Other reports, however, suggest that the document is indeed a product of the administration and has been circulated among the National Security Council for review.

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Regardless of its precise provenance, the very existence of the document is highly troubling, particularly in light of the president's continued fascination with torture and other coercive interrogation techniques. Although he has stated that he will defer to the secretary of Defense and the director of the CIA on these matters, the desire to potentially establish detention sites out of reach of U.S. courts, advocates and other essential actors raises a huge red flag regarding the administration's approach to counterterrorism.

 

There is little doubt that ISIS, al Qaeda and other terrorist groups pose a threat to the U.S. and our allies, or that comprehensive action to continue to address and contain that threat through military, financial, diplomatic and other means is an essential national security task for the new administration.

But the starting point for any such action is, of course, the rule of law. Our Constitution, our laws, our treaty obligations and our jurisprudence all demand adherence to the law as the foundation for all government action.

The very term "black sites" sends a clear message that what happens at such a site stays at such a site, free from the watchful eyes of the public and the dictates of the law.

There's a reason for the colloquial phrase "shining a light on" abuses. In the darkness, no one — whether judges, advocates, international organizations or the informed citizens at the heart of democracy — can see what is happening, how people are being treated, or whether the activities therein comport with fundamental norms of human dignity and the rule of law.

Knowledge is power. Access is protection. Many fundamental rights rest on these ideas. The writ of habeas corpus in our Constitution mandates that a judge review and pronounce on the lawfulness of an individual's detention, precisely to protect against the executive branch having unfettered authority to detain persons without review.

This protection is so important, so fundamental to our democracy, that we call it the "Great Writ." When the government does not have to justify the detention of an individual, it is not far down the slippery slope to disappearances and other abuses.

Why? Because no one can see and therefore no one knows what is happening.

For this same reason, the law of war requires that the International Committee of the Red Cross — the international body dedicated to protecting all people during wartime — has access to all detention sites and all persons who are detained. Such access ensures that, at a minimum, this impartial humanitarian organization knows who is detained and how they are being treated.

The proposed executive order would revoke such access — in direct violation of U.S. treaty obligations under the Geneva Conventions. One wonders what the reason could be for denying such access, other than the free rein to hold people in secret and treat them in ways prohibited by U.S. and international law.

The rest of the executive order bears out exactly this suspicion, calling for a review of approved interrogation techniques to determine whether more aggressive techniques should be allowed.

Let's be clear: The euphemism of "enhanced interrogation techniques" or any other does not change the fact that acts amounting to cruel, inhuman or degrading treatment or, more severely, torture, are prohibited — no matter what they are called. Both U.S. law and international law prohibit such abuses in wartime and in peacetime, against American citizens and foreigners, including the most heinous criminals or vicious terrorists.

These protections are not just overly generous protections for "the worst of the worst," as our enemies in these conflicts with terrorist groups are often called. As our military leaders emphasize repeatedly, the Geneva Conventions and other fundamental norms of the law of war — including access for the Red Cross and the prohibitions on torture and cruel, inhuman or degrading treatment, arbitrary detention, and disappearances — protect members of our military when engaged in combat or other operations overseas.

Simply put, our soldiers, sailors, airmen and Marines receive better treatment at the hands of others when the U.S. steadfastly adheres to the key principles of international and domestic law.

The proposed executive order would effectively plunge U.S. counterterrorism operations into darkness. When the government controls and prohibits access and knowledge about a detention center and who is there, mere reassurances that nothing illegal will go on can never be sufficient.

Shutting out the world — the essence of a black site — is the first step in shutting out the law, the truth and basic human dignity.

Laurie R. Blank is clinical professor of law and director of the International Humanitarian Law Clinic at Emory University School of Law.


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