GHOST SHIPS
by Shayana Kadidal

The Guardian
June 9, 2008 UK

America's 'floating prisons' are not only illegal, but evidence of
the limitless scale of US detention policy

This week the Guardian broke the news that an upcoming report from
Reprieve â€" our counterparts across the pond in the Guantánamo
litigation â€" documents the use of as many as 17 American warships as
floating prisons to hold detainees in the "war on terror". The report
apparently documents not only descriptions of detentions at sea from
released Guantánamo detainees, most of whom presumably were held in
the early days of the "war on terror", but also more recent detentions
on US warships, particularly in the Horn of Africa, a current hot spot
for disappearances carried out by the US military and intelligence
agencies. The report also claims that in the last two years there
have been several hundred renditions â€" another practice thought to
have ceased after President Bush declared an end to it in 2006.

From a purely legal standpoint, the fact the US may have been holding
a large number of prisoners on its own military vessels is surprising
news, because even before 9/11 there were legal precedents for federal
courts exercising jurisdiction over detentions on warships. The
so-called "American Taliban", John Walker Lindh, was held on an
amphibious warship (the USS Peleliu) between his capture in Afghanistan
and his transfer to the US to face trial. But because Lindh was a US
citizen, it was clear from the start that he would have the right of
access to federal courts in habeas corpus, and for this reason â€"
and for his public relations value â€" the government determined
early on to try him through the criminal process.

In contrast, if foreign nationals were held on US ships, the government
would have every reason to scrupulously hide that fact from the
world in order to facilitate their continued indefinite detention
without trial or any form of oversight from the courts. Administration
officials might have shown off to the press the fact that detainees
were held at Guantánamo because they believed federal courts
would never be able to hold them accountable for anything done at
Guantánamo, no matter how blatantly illegal. But hiding the fact that
large numbers of foreign nationals were held on warships may have been
essential to hide those cases from the scrutiny of the federal courts.

The report also evidences continued Bush administration disrespect for
international law. Even on the (usually-dubious) assumption that these
secret detainees may be held as prisoners of war, Article 22 of the
Third Geneva Convention states that "Prisoners of war may be interned
only in premises located on land." These provisions were included
in the 1949 Conventions in response to the appalling mistreatment
of American prisoners of war by the Japanese, who shipped thousands
of American prisoners to labour camps in the Philippines, Thailand,
Korea and elsewhere under decks in vermin-infested ships. (Indeed,
many of these prisoners were killed when allied armed forces torpedoed
the unmarked prison ships where they were held.)

The Reprieve report quotes a detainee who describes the treatment
meted out on the prison ships as worse than Guantánamo. Again, that's
unsurprising, given the secrecy that surrounds these detentions. One
interesting question the report may shed light on, though, is whether
the abusive practices at sea lasted past the Abu Ghraib scandal and
the supposed end to medieval coercive interrogation techniques by
the US military in 2004, which followed in its wake.

I suppose a final lesson is that there is no limit to the number
of potential Guantánamos for the US to exploit. The US government
currently holds some 270 prisoners in Guantánamo, over 600 at
Bagram in Afghanistan and about 27,000 in Iraq. And much has been
written about the possibility that detainees were held in other
insular enclaves like Diego Garcia. But the prospect of floating
prisons â€" and of widespread renditions from those ships to unknown
places within Morocco, Egpyt, Jordan or elsewhere â€" casts a special
blanket of darkness over these practices. Some of what we know about
previous renditions of innocent men - Maher Arar, Khaled el Masri â€"
comes from flight records cobbled together by planespotters watching
their local airports. Even that bare thread will not be present for
men transferred from below decks on American warships to the secret
prisons run by torture regimes in totalitarian states.

If this is the detention model of the future, it may well be one that
produces no history, no disclosure of abuses and no record of mistakes.

Shayana Kadidal is head of the Guantánamo litigation project at the
Center for Constitutional Rights in New York, which brought the case
of the detainees to the US supreme court in 2004 and again in 2007.