Jeremy Scahill at the Nation has an investigative report on U.S. counterterrorism operations in Somalia.
It is very difficult for a reporter to pierce the secrecy of capture and rendition programs. Scahill provides us with a detailed glimpse into our current practices.
According to former detainees, the underground prison, which is staffed by Somali guards, consists of a long corridor lined with filthy small cells infested with bedbugs and mosquitoes. One said that when he arrived in February, he saw two white men wearing military boots, combat trousers, gray tucked-in shirts and black sunglasses. The former prisoners described the cells as windowless and the air thick, moist and disgusting. Prisoners, they said, are not allowed outside. Many have developed rashes and scratch themselves incessantly. Some have been detained for a year or more. According to one former prisoner, inmates who had been there for long periods would pace around constantly, while others leaned against walls rocking.
A Somali who was arrested in Mogadishu and taken to the prison told The Nation that he was held in a windowless underground cell. Among the prisoners he met during his time there was a man who held a Western passport (he declined to identify the man’s nationality). Some of the prisoners told him they were picked up in Nairobi and rendered on small aircraft to Mogadishu, where they were handed over to Somali intelligence agents. Once in custody, according to the senior Somali intelligence official and former prisoners, some detainees are freely interrogated by US and French agents. “Our goal is to please our partners, so we get more [out] of them, like any relationship,” said the Somali intelligence official in describing the policy of allowing foreign agents, including from the CIA, to interrogate prisoners. The Americans, according to the Somali official, operate unilaterally in the country, while the French agents are embedded within the African Union force known as AMISOM.
The CIA's Secret Sites in Somalia
Somalia is in a state of long-drawn-out civil war, with political collapse and humanitarian disaster. Al-Shabaab and related groups hold large parts of the country. The officially recognized government holds small portions of the capital.
The CIA/Somali partnership is described as being at a level below the national leadership:
The CIA personnel and other US intelligence agents "do not bother to be in touch with the political leadership of the country."
The Somali leadership is too corrupt to work with, and thus we pay off corrupt lower-level Somali intelligence officials to run secret prisons for us.
The Current Theory of Military Capture and Detention
Barack Obama's legal theory of military capture and detention powers has recently become much more clear and publicly articulated. "Detention as authorized by the AUMF, and as informed by the Laws of War" is a standard phrasing. Under the theory, the indefinite detention power, and ordinary military capture and detention powers, come from the same place. They are, essentially, the same thing.
"As informed by," as opposed to say "as consistent with" or "under" or "following" the law of war, is crucial to the legal theory. They are indirectly referencing standard Prisoner of War capture and detention powers. They have read the law of war, they have been informed by it, they have indirectly borrowed an idea from it, but the theory is not the law of war, and they certainly won't say that it is. Claiming POW powers as justification would get us in all sorts of trouble, given our interrogation practices and our conditions of confinement.
Transfer of persons captured in war across national boundaries is authorized under standard Prisoner of War powers. You may (and must) set up the POW camps away from the fighting. But forced transport of non-POWS is strictly and clearly forbidden. This was a part of our outlawed practices that Bush Administration lawyers did not much even try to invent justifications for.
Our War with al-Shabaab
The Administration publicly takes a nuanced position on the scope of our war with al-Shabaab. Al-Shabaab is a broad based coalition, and we are at war with a part of al-Shabaab, rather than the whole of it.
But the administration does not consider the United States to be at war with every member of the Shabab, officials said. Rather, the government decided that Mr. Warsame and a handful of other individual Shabab leaders could be made targets or detained because they were integrated with Al Qaeda or its Yemen branch and were said to be looking beyond the internal Somali conflict.
“Certain elements of Al Shabab, including its senior leaders, adhere to Al Qaeda’s ideology and could conduct attacks outside of Somalia in East Africa, as it did in Uganda in 2010, or even outside the region to further Al Qaeda’s agenda,” said a senior administration official. “For its leadership and those other Al Qaeda-aligned elements of Al Shabab, our approach is quite clear: They are not beyond the reach of our counterterrorism tools.”
U.S. Tests New Approach to Terrorism Cases on Somali Suspect
Drone strikes are conducted this way too. They don't see themselves as launching drone strikes against all of al-Shabaab, but only against a part of it.
The position has an inconsistency to it. The Transitional Federal Government side that we are in joint operation with, as in the secret prison operation, is a CIA creation: our covert war in Somalia using a coalition of secular warlords to take down the ICU. Aside from the question of who started it, if you are in joint operation on one side of a civil war, the notion that you are only against a portion of the other side in the war is absurdist.
Covert Programs
This gets into notions of what the legal term of art "covert" means. Covert is not necessarily secret. You can read about our covert war in Somalia, in the daily press. Covert means unacknowledged, it means unadmitted. It means, importantly, unadmittable. It means something we are doing, where admission that we are doing it would itself be seen to harm national security.
A covert war, in Somalia, would necessarily mean that public government statements about what we are doing there can not be fully true. The government views the harm to national security, of admission of what we are doing, as outweighing the harm to national security, of government statements to the public being balderdash. And they see this, it's clear from government legal filings in State Secrets cases, as being absolutist. This national security need to protect covert programs now applies, not just when forced in defense of cases, but to cases the Department of Justice launches itself.
The Flexible Approach
The recent military capture, intelligence exploitation, and then indictment and arrest, of Ahmed Abdulkadir Warsame, is a good instructive example of the Administration's "flexible approach" policy on counterterrorism. Warsame is charged with conspiracy to materially support al-Shabaab, and in parallel, with conspiracy to materially support al-Qaeda in the Arabian Peninsula.
The flexible approach was well articulated back in May of 2009. It is a pragmatic combined approach of military capture and detention, prosecution in Article III court, or prosecution by military commission. It combines options of rendition to foreign imprisonment, or imprisonment in America. If the imprisonment is here, it can be either military or civilian, and if military, either under military justice, or otherwise. Which approach gets used depends on the circumstances. Protection of previous torture and abuse is one factor in the calculations.
The approach has an underlying inflexibility to it, though. Whatever the result of trials or commissions, it ends back at a state of military detention. The results of trials and commissions have no real effect. This point was strongly stressed in the speech:
Now, let me begin by disposing of one argument as plainly as I can: We are not going to release anyone if it would endanger our national security
Now, finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people. And I have to be honest here -- this is the toughest single issue that we will face. We're going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who've received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.
Let me repeat: I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture -- like other prisoners of war -- must be prevented from attacking us again.
Remarks by the President on National Security, May 21, 2009
Changes since the time of the speech include:
- Handling of new captures, rather than those already held at Guantanamo.
- Congressional enactment of restrictions preventing the reopening of Guantanamo in Illinois, and preventing transfers for Article III trial from Guantanamo.
- An abandonment of a shared powers arrangement
we will do so within a system that involves judicial and congressional oversight
for the unilateral executive system of the indefinite detention executive order of March of this year.
- An expansion of the capture and indefinite detention justification: the power comes not from the threat any individual poses, but from a much broader security justification. Someone could be held, even though not posing a security threat themselves. The national security need to protect our torture, and the fact that this need drives policy, should be remembered here.
- An increased debate and questioning, as time passes, about the applicability of the September 18, 2001 Authorization for Use of Military Force, which is distinctly past tense
those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons
in who it applies to.
The Continuation of the Shifting Rationale
In the Bush years, captured prisoners would be shifted from military to criminal back to military imprisonment, as needed to keep them one step from the reach of any judicial restriction on their treatment.
The physical shifting of prisons mirrored a logical shifting of rationale, a legalistic sleight of hand to keep captured prisoners from ever having any legal protection.
Use of shifting rationales continues. Warsame was captured, by the military, with a Prisoner of War like justification. But at the instant this happened, he was shifted away from having any Prisoner of War protection.
Prisoners of War can't be tried in civilian court: it must be UCMJ here. U.S. law on terrorism contains statutes that make his prosecution easier, and are a pragmatically flexible option. But then he cannot have been transported here for the non-military prosecution.
It's a "Hide the Convention" game. Captured prisoners magically swing back and forth between GC-III and GC-IV status, always avoiding clear restriction on us.
The Return of the Secret Prisons
2005:
The CIA has been hiding and interrogating some of its most important al Qaeda captives at a Soviet-era compound in Eastern Europe, according to U.S. and foreign officials familiar with the arrangement.
...
The hidden global internment network is a central element in the CIA's unconventional war on terrorism. It depends on the cooperation of foreign intelligence services, and on keeping even basic information about the system secret from the public, foreign officials and nearly all members of Congress charged with overseeing the CIA's covert actions.
CIA Holds Terror Suspects in Secret Prisons, Dana Priest, Washington Post, November 2, 2005
2009:
President Obama yesterday eliminated the most controversial tools employed by his predecessor against terrorism suspects. With the stroke of his pen, he effectively declared an end to the "war on terror," as President George W. Bush had defined it, signaling to the world that the reach of the U.S. government in battling its enemies will not be limitless.
Bush's 'War' On Terror Comes to a Sudden End, Dana Priest, Washington Post, January 23, 2009
CIA no longer operates detention facilities or black sites and has proposed a plan to decommission the remaining sites.
Message from the Director: Interrogation Policy and Contracts, Leon Panetta, April 9, 2009
2011:
As part of its expanding counterterrorism program in Somalia, the CIA also uses a secret prison buried in the basement of Somalia’s National Security Agency (NSA) headquarters, where prisoners suspected of being Shabab members or of having links to the group are held. Some of the prisoners have been snatched off the streets of Kenya and rendered by plane to Mogadishu. While the underground prison is officially run by the Somali NSA, US intelligence personnel pay the salaries of intelligence agents and also directly interrogate prisoners.
The CIA's Secret Sites in Somalia, Jeremy Scahill, The Nation, July 13, 2011