If the ramifications of the signing statement are murky, the practical effect of the combined McCain and Graham-Levin-Kyl amendments — stripping the ability of prisoners to challenge their treatment — may be less so. Falkoff says that when he last visited the prison, in April 2006, one of his clients showed up badly beaten. “One eye was swollen shut, the other a deep black and blue. Contusions all over his body, cuts on his head and legs,” recalls Falkoff. “He couldn’t swallow and could barely talk.” The client had been forcibly “extracted” from his cell. The offense meriting the move “was that he stepped over a line that they painted in his isolation cell.
“It’s good that McCain is very clear about it being illegal to abuse detainees,” Falkoff continues. “But for Gitmo detainees the DTA is a net negative. They could torture and beat the shit out of any of our clients and there’s nothing we can do about it after the DTA.”
Though it’s still being litigated, the Supreme Court’s Hamdan decision in June seems to have reined in the DTA’s habeas-stripping provisions. But two other lawyers representing detainees at Guantanamo told me that treatment had indeed become tougher after the DTA, especially the guards’ treatment of detainees on hunger strikes. Hunger strikes have been occurring at Guantanamo for years. It was only early this year, after the DTA was passed, that the military began particularly aggressive force-feedings involving larger than normal tubes, which often resulted in bleeding.
In early November 2005, as McCain’s anti-abuse ban and the Graham-Levin-Kyl amendment were winding their way through the Senate, the Washington Post’s Dana Priest published another seminal piece on the US detention system, this time on the CIA’s network of secret prisons.
The story gave a “rough estimate” of “more than 100” suspects who have been moved through the system, with some being rendered to foreign intelligence services — which held the prisoners “with CIA financial assistance and, sometimes, direction” — and others held directly by the CIA, including some at a “Soviet-era compound in Eastern Europe.”
Contrary to international law, those held at the secret prisons were not registered with the International Red Cross or acknowledged as being held. They were, and remain, ghost prisoners. The policy, as Priest detailed, had started haphazardly as a way of holding only the top al Qaeda suspects, but it morphed into something different. “We never sat down, as far as I know, and came up with a grand strategy,” one “former senior intelligence” officer told her. “Everything was very reactive. That’s how you get to a situation where you pick people up, send them into a netherworld and don’t say, ‘What are we going to do with them afterwards?’”
The Post seemed to suggest that the existence of the prison system itself was breaking news: “CIA Holds Terror Suspects in Secret Prisons.” Additional coverage — and outrage in Washington — followed. ABC News, for example, referred to the “revelation today, first in The Washington Post, about a network of top-secret prisons run by the CIA.”
It’s true that the existence of a “number of secret detention centers overseas” was first revealed by the Post — but the revelation came three years earlier. Priest and her colleague Bart Gellman reported that fact in their little-noticed story over Christmas 2002, the one that detailed “stress and duress” techniques and beatings. That story even listed specific locations, saying there were secret prisons at the U.S. Bagram Air Base in Afghanistan and another at a base on the British island of Diego Garcia in the Indian Ocean. In October 2004, Human Rights Watch also released a report on the ghost prisoners. And journalists abroad had reported on the locations of other CIA prisons, one in Jordan, another in Morocco, and yet another in Thailand.
Priest’s 2005 piece had more detail than anything previously published on the subject — discussion from former intelligence officials about how the program started; and particularly the reference to the existence of prisons in Eastern European countries — but the story’s revelations were actually modest in comparison to the amount of vituperation they stirred up.