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Undisclosed U.S. Detention Sites Overseas: Background and Legal Issues

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President Bush's announcement on September 6, 2006, that 14 "high-value detainees" suspected of terrorist activity have been transferred from locations abroad to the U.S. detention facility at the Guantanamo Bay Naval Station confirmed the existence of secret U.S. prison facilities abroad, the subject of previously unsubstantiated media allegations and investigations by foreign governments and human rights bodies. The Bush Administration had neither admitted nor denied the allegations, but had defended the longstanding practice of transporting terrorist suspects to other countries through a process known as "extraordinary rendition." The Administration has reserved the option of establishing overseas prisons to hold and interrogate terrorist suspects that may be captured in the future.

The arrest, transfer, detention, and treatment of persons are governed by a web of human rights treaties and, in some cases, treaties regulating the conduct of armed conflict (humanitarian law), as well as customary international law related to either category of law. In the context of the "Global War on Terrorism" (GWOT), there are significant differences of opinion as to which legal regimes govern the arrest and detention of suspected terrorists. The Bush Administration has characterized the arrests and detentions as the wartime capture and internment of combatants, and has argued that human rights law is thus inapplicable. Prior to the Supreme Court's decision in Hamdan v. Rumsfeld, the Administration argued that treaties regarding humanitarian law did not apply to the detainees. However, the Supreme Court rejected the position that Al Qaeda fighters captured in Afghanistan are not entitled to any protection under the Geneva Conventions, finding instead that all persons captured in the context of an armed conflict are entitled at least to the minimum protections required under Common Article 3. Congress, in enacting the Detainee Treatment Act of 2006 (P.L. 109-163), prohibited cruel, inhuman, or degrading treatment of detainees in U.S. custody regardless of their geographical location.

States parties to human rights treaties generally agree to prevent violations of the civil rights of persons under their jurisdiction, which ordinarily entail the right to a trial or other process of law before a person can be deported or subjected to prolonged detention. The existence of secret prisons on a state's territory or the use of its airfields to transport prisoners, with or without the involvement or knowledge of the government involved, may entail a breach of international obligations.

This report provides background information regarding the controversy and discusses the possible legal frameworks that may apply. It is based on available open-source documentation, as cited, and not on any independent CRS investigation. It focuses on protections accorded to persons under international law, and is not intended to address intelligence operations or policy. It also focuses primarily on the allegations relating to Europe, although other countries may be involved, and includes in its appendix a status discussion concerning relevant investigations being conducted by the European Parliament and the Council on Europe.