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USA: A case to answer

From Abu Ghraib to secret CIA custody:

The case of Khaled al-Maqtari

14 March 2008

Summary

AI Index: AMR 51/017/2008

One man’s story illustrates the global reach of the USA’s secret detention network and provides chilling allegations of the deliberate and persistent use of torture and other ill-treatment. It is the story of a man who has never been charged with any crime, but who spent nearly three years in US custody as a victim of enforced disappearance.

Khaled Abdu Ahmed Saleh al-Maqtari, a 31-year-old Yemeni, was transferred out of the Central Intelligence Agency (CIA) secret detention program in September 2006. He had been held at Abu Ghraib before being sent to CIA “black sites” in Afghanistan and an unidentified third country, where he was held in utter isolation.

Khaled al-Maqtari was arrested in Fallujah, Iraq in January 2004, during a US raid on an arms market, and was transferred by helicopter to the Abu Ghraib Detention Facility. A US military official in Iraq told Amnesty International that individuals detained in the field, and determined to be “an imperative risk to the security and safety of Iraq”, should have been brought to a Coalition Theater Internment Facility, like Abu Ghraib, and assigned an Internment Serial Number (ISN). Khaled al-Maqtari was apparently never assigned an ISN, which suggests that he was turned directly over to Military Intelligence (MI) and held as a “ghost detainee”.

Khaled al-Maqtari has given a detailed account of his treatment at Abu Ghraib, including repeated beatings, sleep deprivation and suspension upside down in painful positions. He says he was often stripped, beaten, drenched with cold water, and blasted with an air conditioner. Once he was taken to an outdoor area covered in gravel, made to crawl across it cuffed and chained, and then confronted by three dogs. It was cold, and he was naked, wet and shivering. “The dogs came and put their noses right against me and made terrible noises. I had no defence, not even any clothes. ... I still have dreams about this.”

Khaled al-Maqtari said that his interrogators did not identify themselves to him, other than to say that they were “Americans”. Although coalition forces were entitled to detain civilians suspected of criminal activities, including insurgency, they were under legal obligation to treat any such detainees humanely and to provide them with due process, including registration and visitation by the International Committee of the Red Cross (ICRC). At no time during his detention in Abu Ghraib was Khaled al-Maqtari registered, documented or charged with any crime. He did not see anyone from the ICRC, nor was he ever allowed to contact a lawyer or his family.

After nine days in Abu Ghraib, Khaled al-Maqtari was secretly transferred to a CIA “black site” in Afghanistan. He described the plane that brought him to Afghanistan as small and fast and quiet; the engines were barely audible through his hood and headphones. Amnesty International has obtained flight records that corroborate Khaled al-Maqtari’s recollections, at least to the extent that a Gulfstream V jet (N8068V, previously N379P) operated by a CIA front company and widely known to be used for the transport of CIA detainees, left Baghdad International Airport on 21 January 2004, nine days after Khaled al-Maqtari’s arrest, heading for Khwaja Rawash airport in Kabul.

At the time of Khaled al-Maqtari’s detention, US forces in Iraq were bound by the Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), article 49 of which prohibits the transfer of protected persons, including insurgents who are not part of the military, from the occupied territory. Unlawful deportation or transfer or unlawful confinement, as well as torture and other inhuman treatment, in violation of the Geneva Conventions, are war crimes, and prosecutable as such under US and international law. In addition, international human rights law applies, even in time of war.

Khaled al-Maqtari says he was transferred by vehicle from the airport to a secret facility in Afghanistan, where about 20 detainees were held. While in Afghanistan, he said, he was subjected to further torture and ill-treatment, including prolonged solitary confinement, the use of stress positions, sleep deprivation, exposure to extremes of hot and cold, prolonged shackling, and sensory deprivation and overload with bright lighting and loud music or sound effects constantly channelled into his cell.

Khaled al-Maqtari told Amnesty International that during the lapses in the sound effects he began to communicate with other detainees, and figured out who was being held in the cells around him. Majid Khan, a Pakistani who was one of the 14 “high-value” detainees transferred from the CIA program to Guantánamo in September 2006, arrived in the facility in Afghanistan about six to eight weeks after Khaled al-Maqtari. Khan, who spoke little Arabic, told another detainee that he “had been here before, was transferred to another prison in Kabul and then was returned to this prison”.

According to the other detainees, at least three “high value” detainees had recently been detained at this site: Tawfiq bin Attash and Ali Abdul Aziz Ali, who reportedly said they had been arrested in Pakistan together, and Ramzi bin al-Shibh, were all said to have been transferred out in September 2003; they reappeared three years later, among the 14 detainees moved from CIA custody to Guantánamo.

In April 2004, a group of about 10 detainees, including Khaled al-Maqtari were transferred by plane and helicopter to a CIA black site in an unidentified third country. The size and location of this “black site” remains the subject of speculation. Amnesty International has reported extensively on the cases of three other Yemenis who were apparently held in the same site, and two of these men told Amnesty International in October 2005 that they believed this detention centre was in Europe. Khaled al-Maqtari himself firmly believes that the site was not in the Middle East or Afghanistan, citing the food, the climate, the distance they had travelled, and the orientation of the toilets (which were facing Mecca).

In mid-2006, Khaled al-Maqtari says he was issued a blanket on which was written: “To Cuba, to Morocco, to Romania and to this place – Abu Ubeidah al Hadrami”. Abu Ubeidah al-Hadrami is an alias for Ramzi bin al-Shibh, one of six “high value” detainees charged by the US authorities in February 2008 for capital trial by military commission. If accurate, this tiny account suggests that during the four years in which he was “disappeared”, Ramzi bin al-Shibh was held at the CIA interrogation facility at Guantánamo, which was reportedly closed in 2004, and that he was either rendered to Morocco, or held in a CIA “black site” there. The reference to his being held in Romania, and then “this place”, is also intriguing. The Council of Europe’s June 2007 report confirmed the existence of secret detention centres in Poland and Romania up until the end of 2005, when these sites were reportedly closed down, but Khaled al-Maqtari and other detainees who arrived at this site in 2004 were held until mid-2006, while the message on the blanket suggests that some of the “high value” detainees may have been moved from Poland and/or Romania to this site prior to their transfer to Guantánamo. It also seems likely that this facility closed down in September 2006, and that Khaled al-Maqtari and others were transferred back to their home countries while the 14 “high value” detainees were sent to Guantánamo, enabling President George W. Bush to assure the public that “the current transfers mean that there are now no terrorists in the CIA program.”

The facility in which Khaled al-Maqtari was held from April 2004 until September 2006 was new or refurbished, and carefully designed and operated to ensure maximum security and secrecy, as well as disorientation, dependence and stress for the detainees. Every minute of every day was spent under the watchful eye of the two cameras placed at either end of his small, windowless cell, which was entered through a double set of reinforced steel doors. He spoke only to interrogators and medical staff; the black-masked guards – whom he described as the ninjas – remained entirely silent and communicated with him through hand gestures. The detainees were not taken outside for any reason, and Khaled al-Maqtari says he went for more than two years without once seeing the sun or the sky. He was eventually given access to books and writing materials, and to a weekly exercise session, which he took alone locked in an empty room, his leg irons removed for the hour. Although he does not describe being subjected to the kind of physical torture he said he suffered in Abu Ghraib, the abuses that he says have affected him most profoundly were the years of endless isolation, his total uncertainty about his future, the constant monitoring by cameras, and his segregation from the outside world, particularly the lack of contact with his family.

Amnesty International has interviewed other former “black site” detainees, some of whom were held at the same facility. Many of the details in Khaled al-Maqtari’s account of his “disappearance” are corroborated by statements made by other former detainees and former interrogators, and by the detailed investigations carried out by NGOs, journalists and the Council of Europe. Although the secrecy with which the CIA program operates makes it impossible to verify every account, these investigations, together with the statements of the handful of men who have emerged from the secret prisons – released as quietly as they were apprehended – have helped to construct a detailed picture that demonstrates conclusively that the USA has carried out a range of human rights violations through the use of the secret detention program.

All of the former detainees have described years spent in mind-numbing isolation, broken only by interrogation sessions which seemed to them to have very little to do with alleged terrorist activities. During his frequent interrogations in the “black site”, Khaled al-Maqtari was invited to recount his life story in excruciating detail, and to answer questions about the lives of his friends, family and acquaintances. He said he was shown thousands of photographs, including many of the detainees held in Guantánamo, and told to provide any information – first or second hand – he had about those he recognised. Sometimes he had trouble concentrating, describing himself as “mentally exhausted” and unable to talk, and said the interrogators would give him questions on a piece of paper, to think about and answer in his cell. Another detainee described the process as collecting pieces of a puzzle before knowing what the puzzle would turn out to be.

The years of interrogation endured by Khaled al-Maqtari and other detainees who were never charged by the US authorities could perhaps best be characterised as a broad information fishing exercise. In September 2007, however, CIA Director General Michael Hayden defended the secret detention program on the grounds that it was targeted and selective, “designed for only the most dangerous terrorists and those believed to have the most valuable information, such as knowledge of planned attacks.” He and other US officials have used similar reasoning to defend the CIA’s use of “waterboarding”, flying in the face of the absolute prohibition of torture and other ill-treatment under international law.

Whatever its motivation, prolonged secret incommunicado detention, which itself constitutes torture or other cruel, inhuman or degrading treatment, is unlawful. It violates universal standards of human rights, facilitates other forms of torture and ill-treatment, and amounts to enforced disappearance. It jeopardizes the prospect of fair trials, erodes the rule of law, and potentially breeds widely-felt resentment at such injustice, thereby undermining rather than nurturing long-term security.

Khaled al-Maqtari was returned to Yemen in September 2006 after some 32 months in CIA custody, and was held by the Yemeni authorities in Sana’a and Hodeidah until May 2007, when he was unconditionally released. At no stage during this 40-month period was his detention ever reviewed by a judicial authority, and he was never charged with any criminal offence.

On 6 September 2006, days after Khaled al-Maqtari was returned to Yemen, President Bush confirmed for the first time the existence of the secret detention and interrogation program In doing so, and endorsing its continuation, the President was admitting to having authorized enforced disappearances, which are recognized as a crime under international law by a succession of international instruments.

In June 2007, President Bush issued an executive order authorizing continuation of the secret program. The order makes it possible for the CIA to continue to hold detainees in secret custody – to carry out enforced disappearances – and offers little if any protection against the additional human rights violations that stem from secret incommunicado detention. Moreover, it reinforces the enormous accountability gap that persists in relation to past abuses, and seeks to ensure that this lack of accountability continues.

Instead of carrying out its obligation to investigate credible allegations of enforced disappearance, including in the case of Khaled al-Maqtari, the US administration has sought to bend the rules, or simply ignore them. The pervasive secrecy that protects the operation of the CIA’s “high value terrorist detainee program” leaves it immune to political or judicial scrutiny, ensuring continued impunity for the human rights violations it entails.

The record is no better when it comes to accountability for torture. To date, as far as Amnesty International can ascertain, no CIA agents have been brought to justice in relation to acts of torture or other ill-treatment, despite the agency’s own admission of having subjected detainees to “waterboarding”, despite reports indicating that a pattern of such abuses exists, and despite agency personnel allegedly having been involved in a number of deaths in custody in Iraq and Afghanistan.

While the military investigation into intelligence activities at Abu Ghraib concluded that “the CIA’s detention and interrogation practices contributed to a loss of accountability and abuse” at the prison, neither this nor other investigations conducted outside of the CIA Inspector General’s office have had the scope to examine the CIA’s secret program, nor have they had the cooperation of the CIA in their investigations. The Office of the Director of National Intelligence has stated that the CIA program “has been investigated and audited by the CIA’s Office of the Inspector General (OIG), which was given full and complete access to all aspects of the program.” No details or findings relating to any such investigations have been made public. International standards require that investigations into torture and other cruel, inhuman or degrading treatment be prompt and effective, carried out by independent, competent and impartial investigators, and that their findings be made public.

In a March 2005 statement asserting that its agents “do not torture” (while remaining silent on whether or not they engage in cruel, inhuman or degrading treatment), the CIA noted that “CIA policies on interrogation have always followed legal guidance from the Department of Justice. If an individual violates the policy, then he or she will be held accountable”. The absence of prosecutions of CIA personnel suggests that the policy remains out of compliance with international law, and indeed that the secret detention policy goes hand in hand with one of impunity.

The human cost of rendition and secret detention is all too often ignored. Amnesty International first spoke to Khaled al-Maqtari weeks after his release, but he was then emotionally unable to carry out a comprehensive interview. It took him several months to recover to the point of being able to discuss his experiences. His physical condition remains poor, and he is not able to afford to pay for medical treatment. Specialised medical and psychological care for the victims of torture is not available in Yemen, and Khaled al-Maqtari is afraid to travel to any country where he might be able to receive such treatment.

The US authorities apparently concluded that their suspicions about Khaled al-Maqtari’s involvement with the anti-US insurgency in Iraq justified denying him the human rights protections guaranteed to all people. If the US had reasonable grounds to believe that Khaled al-Maqtari had committed criminal acts, international law would have allowed his detention and interrogation, but not his “disappearance” and torture. There are no circumstances – including counter-terrorism operations – that can justify violating these rights. However, while the US authorities have never charged Khaled al-Maqtari with any crime, his account of his treatment points to crimes having been committed against him for which no one has been held to account. There is a case for the US authorities to answer.

This report summarizesa 50-page document (20,544 words): USA: A case to answer. From Abu Ghraib to secret CIA custody: The case of Khaled al-Maqtari (AI Index: AMR 51/013/2008) issued by Amnesty International in March 2008. Anyone wishing further details or to take action on this issue should consult the full document. An extensive range of our materials on this and other subjects is available at http://www.amnesty.org and Amnesty International news releases can be received by email: http://www.amnesty.org/email/email_updates.html

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