A/HRC/13/42*
page 87
• Expanded the review procedures for detainees held by the Department of Defense in
Afghanistan in order to enhance the transparency and fairness of U.S. detention
practices. Detainees are permitted an opportunity to challenge the evidence that is the
basis for their detention, to call reasonably available witnesses, and to have the
assistance of personal representatives who have access to all reasonably available
relevant information (including classified information). Proceedings generally shall be
open, including to representatives of the ICRC, and possibly to non-governmental
organizations.
• Established more tailored standards and rigorous procedures for evaluating assertions of
the State secrets privilege, including establishing an internal accountability mechanism,
ensuring that the privilege is never asserted to avoid embarrassment or conceal
violations of law, and creating a referral mechanism to the Office of Inspector General
where the privilege is asserted but there is credible evidence of a violation of law. These
standards and procedures were established in order to strike a better balance between
open government and the need to protect vital national security information.
• The Department of Justice initiated a preliminary criminal investigation into the
interrogation of certain detainees.
• These measures cumulatively seek to reaffirm the importance of compliance with the
rule of law in U.S. detention practices, to ensure U.S. adherence to its international legal
obligations, and to promote accountability and transparency in this important area of
national security policy.
161. The experts welcome the above commitments. They believe, however, that clarification is
required as to whether detainees were held in CIA “black sites” in Iraq and Afghanistan or
elsewhere when President Obama took office, and, if so, what happened to the detainees who
were held at that time. Also, the experts are concerned that the executive order instructing the
CIA “to close any detention facilities that it currently operates” does not extend to the facilities
where the CIA detains individuals on “a short-term transitory basis”.331 The order also does not
seem to extend to detention facilities operated by the Joint Special Operation Command.
162. The experts also welcome in particular the new policy implemented in August 2009, under
which the military must notify ICRC of detainees’ names and identification number within two
weeks of capture.332 Nevertheless, there is no legal justification for this two-week period of
secret detention. According to article 70 of the Third Geneva Convention, prisoners of war are to
331
Executive order: ensuring lawful interrogations”, 22 January 2009, available from
www.whitehouse.gov/the_press_office/EnsuringLawfulInterrogations/. See also CIA, “Message
from the Director: interrogation policy and contracts”, 9 April 2009, available from
www.cia.gov/news-information/press-releases-statements/directors-statement-interrogationpolicy-contracts.html.
332
Ibid. These requests clearly dated back to the time of Camp Nama, noted above, where
allegations of abuse were widespread.
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