EXCLUSIVE: Loophole allows terrorist detentions

EXCLUSIVE:

President Obama’s executive order closing CIA “black sites” contains a little-noticed exception that allows the spy agency to continue to operate temporary detention facilities abroad.

The provision illustrates that the president’s order to shutter foreign-based prisons, known as black sites, is not airtight and that the Central Intelligence Agency still has options if it wants to hold terrorist suspects for several days at a time.

Current and former U.S. officials, who spoke on the condition that they aren’t identified because of the sensitivity of the subject, said such temporary facilities around the world will remain open, giving the administration the opportunity to seize and hold assumed terrorists.

The detentions would be temporary. Suspects either would be brought later to the United States for trial or sent to other countries where they are wanted and can face trial.

The exception is evidence that the new administration, while announcing an end to many elements of the Bush “war on terror,” is leaving itself wiggle room to continue some of its predecessor’s practices regarding terrorist suspects.

According to the executive order, “The terms ‘detention facilities’ and ‘detention facility’ in section 4(a) of this order do not refer to facilities used only to hold people on a short-term, transitory basis.”

Analysts inside and outside government say this refers to so-called safe houses, which are buildings where operatives can go to protect themselves from pursuers or can hide people they have taken into custody.

“This executive order does not close down all operations. There are still facilities on a temporary basis, often called safe houses, for holding someone for a matter of days,” an administration official said.

Ken Gude, the associate director of international rights and responsibilities at the Center for American Progress, said the temporary facilities operated by the CIA should not be confused with the Bush administration’s black sites.

“My understanding is that these types of temporary facilities can be in no way described as a prison,” Mr. Gude said. “They are temporary holding facilities that the CIA has used in the past for decades, … often parts of exchange agreements with other foreign intelligence agencies.”

“For example, we may have an agreement with the Pakistanis, where we agree to pick someone up and we need a place to hold them temporarily while we decide what is the next appropriate course of action,” he said. “This is not like the so-called black site prisons that we heard about as part of the extraordinary rendition program.”

Michael Kraft, a former senior adviser at the Office of the Coordinator for Counterterrorism at the State Department, said the temporary facilities could be used for any number of reasons.

“A scenario might be, someone is picked up in country X, and maybe for logistics reasons, we hold him somewhere else, while a plane with larger fuel tanks is prepared to take him to his final destination,” said Mr. Kraft, who retired in 2004.

Duane Clarridge, who founded the CIA’s Counterterrorism Center, said the temporary facilities may be used for interrogations.

“It seems to me that they will take down terrorist suspects, bring them to a safe house, which is acquired on a temporary basis and controlled by the CIA or the military, where they interrogate the suspect over a period of days before making a decision on future disposition.

“We don’t know what that is; it could be a variety of things. It could be turn him over to the country of origin, or for standing trial in a third country, or release,” Mr. Clarridge said.

The practice of moving terrorist suspects abroad, called rendition, began during the Reagan administration and escalated under President Clinton. After the Sept. 11, 2001, attacks, the Bush administration began classifying terrorist suspects as enemy combatants and holding them indefinitely without formal charges or the protections afforded prisoners of war under the Geneva Conventions.

The closure of black-site prisons by Mr. Obama was part of a series of orders issued last week that included closing the detention facility at Guantanamo Bay, Cuba, and other measures to undo the previous administration’s war on terrorism. The president revoked all executive directives issued by the CIA between Sept. 11, 2001, and Jan. 20, 2009, that have been used to justify harsh interrogation techniques, which critics have called torture. Mr. Obama also revoked Executive Order 13440, which declares al Qaeda and Taliban fighters to be “enemy combatants” and therefore not protected by the Geneva Conventions.

The CIA practiced rendition before Sept. 11, 2001, and in some cases sent suspected terrorists to countries where human rights groups have claimed they were tortured.

The issue of rendition will be one of the policies studied by a Cabinet-level special task force on interrogation and transfer policies.

While the CIA operated special prisons overseas for high-value al Qaeda and Taliban detainees, the agency holds no such detainees in custody today, two U.S. officials said.

The last person in the CIA detention program was Muhammed Rahim, purported to be a driver for Mullah Mohammed Omar, the leader of the Taliban that governed Afghanistan until being overthrown in a U.S.-led invasion shortly after Sept. 11.

Rahim was transferred to the Guantanamo Bay prison on March 14, 2008.

One of the two officials, when asked about the executive order Tuesday, said: “The wording seems to preserve the ability to capture terrorists. But long-term detention by the CIA is out.”

The loophole for safe houses worries the American Civil Liberties Union, which has pressed for the closing of Guantanamo Bay and the black sites.

“This is a place where what we all understood to be the CIA’s secret prison system with prisons in places like Poland and Thailand is shut down here, and there is no future detention authority to operate those facilities,” said Christopher Anders, senior legislative counsel for the ACLU.

“But there is a provision on some kind of short-term detention authority, and our position is that the CIA should have no detention authority,” Mr. Anders said. “If President Obama has taken the CIA out of the prison business, he should also take the CIA out of the short-term jailer business as well.”

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