A/HRC/10/3 page 13 not use their prerogative to order medical examinations, to visit barracks which are used for garde à vue detention, or to verify the records on the arrest, questioning and release of detainees held by the DRS. The Special Rapporteur is concerned that these circumstances substantially increase the risk that persons are arbitrarily detained or will be exposed to torture or other inhuman treatment. 40. The Special Rapporteur is gravely concerned about situations, for instance in Morocco,35 Jordan36 and Pakistan, where the detention and interrogation powers of the intelligence services in counter-terrorism operations and investigations have no clear statutory basis.37 The arrest and detention of persons on grounds which are not clearly established in domestic law is a violation of article 9, paragraph 1, of the International Covenant on Civil and Political Rights. Without such a legal framework there is a danger that intelligence services arrest people on the basis of sheer assumptions, which might be based only on a “guilt by association” pattern. 41. The Special Rapporteur notes that since September 2001 there has been a trend towards outsourcing the collection of intelligence to private contractors.38 While the involvement of private actors can be necessary as a technical matter in order to have access to information (for instance for electronic surveillance), there are reasons to be wary of using contractors to interrogate persons who are deprived of their liberty.39 The combination of a lack of proper training, the introduction of a profit motive into situations which are prone to human rights violations, and the often questionable prospect that such contractors will be subject to judicial and parliamentary accountability mechanisms, justifies the conclusion that intelligence activities that may affect the life, physical integrity or liberty of individuals should remain within the exclusive domain of the State. If States however decide to contract private military and security companies, they should, as a minimum, comply with the Montreux Document on pertinent 35 See Alkarama for Human Rights, Contribution dans le cadre de l’examen périodique universel de Maroc, 2007, pp. 2-4; Amnesty International, Morocco, submission to the Universal Periodic Review, 2007, p. 5. 36 Human Rights Watch, Suspicious Sweeps - The General Intelligence Department and Jordan’s Rule of Law Problem (2006), vol. 18, No. 6 (E), pp. 11-17. 37 Eminent Jurist Panel on Terrorism, Counter-Terrorism and Human Rights, forthcoming report, chapter IV, part 2.2.2. 38 In general, 70 per cent of the intelligence activities of the United States are being outsourced to private actors nowadays. See S. Chesterman, “‘We can’t spy ... if we can’t buy!’: the privatization of intelligence and the limits of outsourcing ‘inherently governmental functions’”, New York University Public Law and Legal Theory Working Papers, No. 82, 2008, p. 2. 39 See for instance United States v. Passaro (No. 5:04-CR-211-1, United States District Court for the Eastern District of North Carolina, 17 June, 2004). See also the statements of Central Intelligence Agency (CIA) director Michael Hayden, who has confirmed that contractors “under governmental direction and control” have waterboarded detainees at CIA black sites: Hearing of the United States Senate Select Committee on Intelligence, Annual Worldwide Threat Assessment, 5 February 2008, p. 26.