In the early days, the black sites were put on boats.
This was shortly before Bagram was acknowledged, and shortly before Guantanamo was opened. It was exactly when the memos were flying, about how to place captured prisoners beyond the reach of law.
I mean, those memos were flying continuously. But the floating dungeons started exactly when the flying memos started.
The black site in Thailand, the black site in Poland, the black sites in Morocco: those came later.
USS Bataan, where Ibn Sheikh al-Libi, and others, were held.
What a Black Site Is
The distinguishing characteristic of a black site is that the program there is unacknowledged. The big news of September 6, 2006 was that President Bush officially acknowledged the existence of the black site program. The program had already been publicly known for a year.
Many nations have security prisons where everyone knows, approximately, what goes on there. But what goes on there is cloaked in official denial. What goes on there is cloaked by official secrecy laws.
At a practical level, the real nature of a black site is not that it is secret, but that it is beyond the reach of law. Military ships, out in oceans, are good for this. It's pretty hard for an interfering human rights lawyer to reach a warship protected by warships.
The Return of Black Sites on Boats
Ahmed Abdulkadir Warsame has been indicted in New York on conspiracy to materially support al-Shabaab, and in parallel, on conspiracy to materially support al-Qaeda in the Arabian Peninsula.
At the time of the indictment, Warsame was imprisoned on a boat. The indictment got around the relation of his current place and his future arrest, like this:
the defendant, who will be first brought to and arrested in the Southern District of New York
Wasame's interrogation and then arrest is a good clear example of current practice about the relation of the war and crime responses to terrorism:
a) First a period of intelligence exploitation. Here, of more than two months.
b) Then a handoff to criminal prosecutors, a Mirandizing, and criminal investigation.
This "clean team" technique was adopted under the Bush administration, after the fact, in reaction to court decisions. It was presumably not much to their liking. Current policy assumes a clean teaming, after the interrogation, from the start.
The announcement that we are back to floating prisons was made at least a month ago, to Congress
In response to senators’ questions, [Vice Admiral William H.] McRaven said that “in many cases” suspects captured in secret operations by Navy SEALs or the Army’s Delta Force are taken to a U.S. Navy ship until they can be tried in a U.S. court or transferred to the custody of an allied country. But if neither option turns out to be feasible, the prisoner is ultimately let go, he said.
Washington Post
and was pretty well overlooked and unnoticed.
The announcement that Warsame was imprisoned on a boat was made by the government telling the Washington Post
The U.S. military captured a Somali terrorism suspect in the Gulf of Aden in April and interrogated him for more than two months aboard a U.S. Navy ship before flying him this week to New York, where he has been indicted on federal charges.
The case represents the Obama administration’s attempt to find a middle ground between open-ended detentions in secret prisons, as practiced by the George W. Bush administration, and its commitment to try as many terrorism cases as possible in civilian courts.
and the New York Times
The decision to fly the man to New York for trial, after interrogating him for months aboard a United States naval vessel, is likely to reignite debate about the detention and prosecution of terrorism suspects.
and the Associated Press
A Somali citizen captured in April was interrogated aboard a U.S. warship for two months and is now in New York to face terrorism charges.
to tell us. Which, as you can see above, they all did.
End Point
Reprieve, a U.K. human rights organization, in a paper discussing imprisonment on ships, describes the elements of our rendition program:
“Post 9/11” rendition involves at least the following three elements:
i. Apprehension – This can be ad-hoc, i.e. involving no semblance of a
legal process, or it can resemble a legal process;
ii. Transfer – This can be entirely ad-hoc and without process, for
example on a CIA plane, or it can involve elements of process, for
example a “deportation” without the victim being given the chance to
adequately challenge his transfer.
iii. End point – This is normally some form of incommunicado or semi-incommunicado US detention, proxy detention by a third-party state, or some form of joint detention.
“Rendition” and “secret detention” together amount to the crime against
humanity of “enforced disappearance,”1 and usually involve other serious abuses of rights, for example torture and inhuman and degrading treatment,
prolonged incommunicado detention and absence of access to due process.
Item iii is relevant here. If Wasame should win his criminal case, he will be locked away in indefinite detention anyway. Indefinite detention is official and acknowledged government policy. The end point will be "semi-incommunicado US detention," whatever the result of the case.
Middle Ground?
The Washington Post, above, said
The case represents the Obama administration’s attempt to find a middle ground between open-ended detentions in secret prisons, as practiced by the George W. Bush administration, and its commitment to try as many terrorism cases as possible in civilian courts.
Going back to the days of prisons on boats, with the people held there in secret and cut off from any possible access to law, interrogated under standards developed back when we did not admit the applicability of the Geneva Conventions, and with open-ended detention as the final result, does not strike me as much of a middle ground.
Further Reading
Indictment.
Press Release, U.S. Attorney for SDNY, July 5, 2011.
Ahmed Warsame and Law of War Detention, Robert Chensey, Lawfare Blog, July 6, 2011.
Eric Holder, Preet Bhrara, and Ray Kelly Planning Civilian Terror Trial in Manhattan, emptywheel, Firedoglake, July 5, 2011.
Somali Man Brought to US to Face Terror Trial, Matt Apuzzo, Associated Press, July 5, 2011.
U.S. Indicts Somali on Terrorism Charges, Karen DeYoung, Greg Miller and Greg Jaffe, Washington Post, July 5, 2011.
U.S. to Prosecute a Somali Suspect in Civilian Court, Charle Savage and Eric Schmitt, New York Times, July 5, 2011.
Enforced Disappearance, Illegal Interstate Transfer, and Other Human Rights Abuses Involving the UK Overseas Territorries. Reprieve, 2008.