Secret Detention and the Right to Information Jonathan Hafetz* Introduction Secret detention is fundamentally inconsistent with the right to information. States, however, sometimes invoke national security to limit the public’s access to a variety of information surrounding detention. Claims of national security are made, for example, to conceal the specific identity, location, and treatment of prisoners as well as policies underlying their detention and treatment, thus contributing to a “secret law” of detention. In many instances, those claims are not only exaggerated but have led to egregious human rights violations, including torture and enforced disappearance. In addition to undermining core human rights protections, secret detention threatens the principles of openness and transparency on which democratic societies depend. Despite international norms forbidding secret detention, the practice remains, and has been reinvigorated by counter-terrorism operations, notably by the United States in its launching of a global “war on terror” in response to the 9/11 terrorist attacks. Terrorism is frequently framed in vague terms, thereby limiting the public’s access to information about detention and weakening accountability mechanisms. Indeed, States may label certain acts or groups as “terrorist” in order to deviate from ordinary detention rules and apply a special regime with limited substantive and procedural safeguards. Secrecy helps enable the military, intelligence agencies, and law enforcement to operate in a legal vacuum, freed from * Associate Professor of Law, Seton Hall University School of Law. the constraining effects of law or other publicly available control mechanisms. Secret detention not only conceals the impact on victims and their families but also hides human rights violations from the public in the name of security. This paper examines the practice of secret detention in the context of national security and counter-terrorism operations. It will explain why secret detention is incompatible with all potentially applicable legal frameworks— whether the threat to the public order is defined as one of criminal law enforcement, armed conflict, or a combination of the two. As the paper explains, the Global Principles on National Security and the Right to Information (“The Tshwane Principles”) mark an important step in helping to improve public access to information about detention, and thus ensuring human rights protections and the transparency that democratic societies depend for accountability and informed public debate. Part I discusses the International Convention for the Protection of all Persons from Enforced Disappearance, as it presents the most specific prohibition against secret detention in international law. Part II looks at secret detention in the context of international human rights law more generally. As the paper explains, secret detention contravenes a constellation of human rights norms, and renders protection and enforcement of those norms a dead letter. Part III examines secret detention from the perspective of international humanitarian law. As the paper explains, States cannot evade the prohibition against secret detention by framing the struggle against terrorism in terms of armed conflict because, like international human rights law, international humanitarian law prohibits secret detention. Part 2 IV considers how secret detention—including secret rules or policies permitting the practice—are incompatible with democratic principles of transparency and the rule of law. I. The Prohibition against Enforced Disappearance The International Convention for the Protection of all Persons from Enforced Disappearance (“Enforced Disappearance Convention”) constitutes the most specific articulation of an international prohibition against secret detention.1 The Convention, which entered into force in 2010, defines enforced disappearance as “the arrest, detention, abduction, or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the law.”2 This definition plainly encompasses the practice of secret detention. As the U.N. Human Rights Council has explained, “[e]very instance of secret detention also amounts to a case of enforced disappearance.”3 The Enforced Disappearance Convention applies at all 1 International Convention for the Protection of All Persons from Enforced Disappearance, G.A. Res. 61/177, U.N. Doc. A/RES/61/177 (Jan. 12, 2007) (“Enforced Disappearances Convention”). The Inter-American Convention on Forced Disappearances (IACFD) was the first treaty defining the notion of enforced disappearances. See Inter-American Convention on Forced Disappearance of Persons, June 9, 1994, OAS/Ser. P AG/doc. 3114/94 rev.1 (entered into force Mar. 28, 1996) 2 Enforced Disappearances Convention, supra note 1, art. 2. 3 See Human Rights Council, U.N. Joint Study on Global Practices in Relation to Secret Detention in the Context of Countering Terrorism, p.17, U.N.Doc. A/HRC/13/42 (Feb. 19, 2010) [hereinafter Secret Detention Study], available at http://www.un.org/Docs/journal/asp/ws.asp?m=A/HRC/13/42. 3 times, including during armed conflict or internal instability.4 Moreover, it requires States to make enforced disappearance a crime under their domestic law,5 provides that the widespread or systemic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law,6 and requires States parties to provide victims with the opportunity to obtain reparations for enforced disappearance in their respective legal systems.7 The Enforced Disappearance Convention further obligates States parties not to transfer an individual to another State where there are substantial grounds for believing that individual will be subjected to enforced disappearance.8 This non- refoulement obligation—which mirrors the non-refoulement obligation under the Convention against Torture or other Cruel, Inhuman or Degrading Treatment or Punishment9—seeks to close potential loopholes by prohibiting a State from engaging in secret detention by outsourcing it to another State.10 It also implicitly 4 Enforced Disappearances Convention, supra note 1, art. 1(2) (“No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance.”). 5 Id. art. 4. 6 Id. art. 5. Under the 1998 Rome Statute's Elements of Crime, enforced disappearance may also be part of a crime against humanity. See Rome Statute of the International Criminal Court, art. 7(1). July 17, 1998, U.N. Doc. A/CONF. 183/9 (1998), 2187 U.N.T.S. 90 (1998). 7 Id. art. 23. 8 Enforced Disappearances Convention, supra note 1. art. 16(1) ((“No State Party shall expel, return (‘refouler’), surrender or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to enforced disappearance.”). 9 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 113. 10 See Vijay M. Padmanabhan, To Transfer or Not to Transfer: Identifying and Protecting Relevant Human Rights Interests in Non-Refoulement, 80 FORDHAM L. REV. 73, 104-05 (2011) (describing general trend in human rights treaties to include a 4 recognizes the degree to which secret detention relies on systems of transborder cooperation, in which prisoners may be transferred from one government to another to conceal information surrounding their confinement. As the U.N. Human Rights Council observed, “Practices such as ‘hosting’ secret detention sites or providing proxy detention have been supplemented by numerous other facets of complicity, including the landing of airplanes for refueling, short-term deprivation of liberty before handing over the ‘suspect,’ the covering up of kidnappings, and so on.”11 More than ninety states have signed the Enforced Disappearance Convention.12 While only about forty states have ratified it thus far,13 forced disappearance is among the customary prohibitions that have attained the status of jus cogens.14 II. Secret Detention and International Human Rights Law The specific prohibition on enforced disappearance also forms part of a larger web of protections against the practice. Secret detention effectively takes prisoners outside any legal framework and renders meaningless the safeguards non-refoulement provisions and explaining how those provisions seek to “deepen rights fulfillment). 11 Secret Detention Study, supra note 3, at 5. 12 International Convention for the Protection of All Persons from Enforced Disappearance, United Nations Treaty Series, available at https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV- 16&chapter=4&lang=en. 13 Id. Notably, the United States and United Kingdom have not signed or ratified the treaty. 14 Restatement (Third) of the Foreign Relations Law of the United States, § 702 (1987). 5 contained in international agreements and under customary international law.15 Numerous human rights norms that do not specifically reference secret detention form part of the prohibition against secret detention and serve as a prophylactic against