He announced the transfer of 14 terrorist suspects to the U.S. military facility at Guantanamo Bay from CIA custody in locations outside of the United States. This report provides background information regarding the controversy and discusses the possible legal frameworks that may apply. It is based on available open-source documentation, as cited, and not on any independent CRS investigation into factual allegations. It focuses on protections accorded to persons under international law, and is not intended to address intelligence operations or policy. It also focuses primarily on the allegations relating to Europe, although the practice extended elsewhere, and includes in its Appendix a status discussion concerning the relevant investigations conducted by the European Parliament and the Council on Europe. By the end of 2006, none had found specific evidence to confirm the existence of the U.S. secret prisons in Europe. U.S. Legal Framework and Issues

The arrest, transfer, detention, and treatment of persons are governed by a web of human rights treaties and in some cases, treaties regulating the conduct of armed conflict, as well as relevant tenets of customary international law. In the context of the "Global War on Terrorism" (GWOT), there are significant differences of opinion as to which legal regimes govern the arrest and detention of suspected terrorists. The Bush Administration characterizes the arrests and detentions as the wartime capture and internment of combatants, and argues that human rights law is thus inapplicable. The Administration previously took the position that the Geneva Conventions applicable to international armed conflicts do not apply with respect to Al Qaeda, because Al Qaeda is neither a state nor a party to the Conventions, and that the minimal set of rights set forth in the Conventions for armed conflicts "not of an international nature" do not apply because the GWOT is international in scope. However, the Supreme Court rejected that position in Hamdan v. Rumsfeld , interpreting Common Article 3 of the Geneva Conventions to apply regardless of the nature of the conflict. Congress, in enacting the Detainee Treatment Act of 2006 as part of National Defense Authorization Act for FY2006 ( P.L. 109-163 ), used human rights terminology in explicitly prohibiting the "cruel, inhuman and degrading treatment or punishment of persons under the detention, custody, or control of the United States Government." From this perspective, such persons would be entitled in most cases to a trial or other process of law to determine the lawfulness of their continued detention. It is widely held by international legal experts that, at a minimum, all detainees are entitled to humane treatment that meets their basic needs, are to be protected against treatment that amounts to torture or inhumane, cruel or degrading treatment, and may not be subjected to punishment without a fair trial. In their responses, no government affirmed official involvement in the detention or transport of terrorist suspects.
President Bush's announcement on September 6, 2006, that 14 "high-value detainees" suspected of terrorist activity have been transferred from locations abroad to the U.S. detention facility at the Guantanamo Bay Naval Station confirmed for the first time the existence of secret U.S. prison facilities abroad, the subject of previously unsubstantiated media allegations and investigations by foreign governments and human rights bodies. Before September, the Bush Administration had neither admitted nor denied the allegations, but had defended the related long-standing practice of transporting terrorist suspects to other countries through a process known as "extraordinary rendition." President Bush stated that no more suspects were being held in CIA prisons but that the Administration reserved the option of establishing overseas prisons to hold and interrogate terrorist suspects that may be captured in the future.
The arrest, transfer, detention, and treatment of persons are governed by a web of human rights treaties and, in some cases, treaties regulating the conduct of armed conflict (humanitarian law), as well as customary international law related to either category of law. In the context of the "Global War on Terrorism" (GWOT), there are significant differences of opinion as to which legal regimes govern the arrest and detention of suspected terrorists. The Bush Administration has characterized the arrests and detentions as the wartime capture and internment of combatants, and has argued that human rights law is thus inapplicable. Prior to the Supreme Court's decision in Hamdan v. Rumsfeld, the Administration argued that treaties regarding humanitarian law did not apply to the detainees. However, the Supreme Court rejected the position that Al Qaeda fighters captured in Afghanistan are not entitled to any protection under the Geneva Conventions, finding instead that all persons captured in the context of an armed conflict are entitled at least to the minimum protections required under Common Article 3. Congress, in enacting the Detainee Treatment Act of 2006 (P.L. 109-163), prohibited cruel, inhuman, or degrading treatment of detainees in U.S. custody regardless of their geographical location; the 110th Congress may remain engaged on related aspects of detainee treatment.
States parties to human rights treaties generally agree to prevent violations of the civil rights of persons under their jurisdiction, which ordinarily entail the right to a trial or other process of law before a person can be deported or subjected to prolonged detention. The existence of secret prisons on a state's territory or the use of its airfields to transport prisoners, with or without the involvement or knowledge of the government involved, may entail a breach of international obligations.
This report provides background information regarding the subject and discusses the possible legal frameworks that may apply. It is based on available open-source documentation, as cited, and not on any independent CRS investigation. It focuses on protections accorded to persons under international law, and is not intended to address intelligence operations or policy. It includes in its Appendix a status discussion concerning relevant investigations being conducted by the European Parliament and the Council on Europe.