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

by Shayana Kadidal

This week the Guardian broke the news that an upcoming report from Reprieve [1] -- our counterparts across the pond in the Guantánamo litigation -- documents the use of as many as 17 American warships as floating prisons [2] 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 [3] -- 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 [4], 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 -- and for his public relations value -- 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 [5] 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 [6]. But the prospect of floating prisons -- and of widespread renditions from those ships to unknown places within Morocco, Egpyt, Jordan or elsewhere -- 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 -- 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 mode [7]l 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 [8] in New York, which brought the case of the detainees to the US supreme court in 2004 and again in 2007.
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