America’s New Floating Black-Sites

The exploitation of grey areas in international law created floating prisons, black-sites, and the potential for and the probability of grave human rights violations. In its quest to protect American citizens, the United States continuously stretches the boundaries of legal construction to justify morally reprehensible behavior in the name of “national security.” A seemingly infinite array of state actions is now justified through questionable legal constructions applied to abstract policies such as the “war on terror” and the “war on drugs.” Through the promulgation of these novel constructions of “war” the United States established a history of exploiting legal grey areas to justify the abduction, indefinite detention, torture, and prosecution of individuals suspected of crimes or unwanted behavior. Now the possibility and probability is that the United States is continuing its past behavior of abduction, torture, refoulement, and extraordinary rendition but in the new mobile setting of the high seas.

In the post-September 11^th context, the United States justified its policies of extraordinary renditions (the process of taking custody of a suspected terrorist from the jurisdiction they were found in and moving them to a third-party location to be indefinitely detained and tortured) as a “vital counter-terrorism tool”.^[1] Between 2001 and 2005 alone hundreds of suspected terrorists were taken by American agents to black-sites in countries like Egypt, Poland, and Afghanistan.^[2] Countries with the original territorial jurisdiction over the suspect often consented to the extraordinary renditions out of fear of losing American political and/or monetary support.^[3] The international community deplored American extraordinary rendition because of torture, lack of due process, and refoulement.^[4] Eventually the United States was forced away from operating black-sites in other states, but America’s victims found no retribution in the law because consular immunities protected American agents in foreign and international courts, and “national security” arguments kept the information shielded from American courts, while the “war” on terrorism otherwise justified American behavior.^[5] However, that does not mean the United States is without ability to continue black-site operations.

The United States has a long history of operating in legal gray areas on the high seas. Thousands of miles away from the nearest American port, the United States Coast Guard is operating naval vessels which intercept, board, search, and detain individuals suspected of drug smuggling.^[6] International law states that there is no sovereignty on the high seas, and that primary jurisdiction over vessels and the individuals therein belongs to the state whose flag the ship sails under.^[7] Without consent from the flag state, the only justifications recognized by international law are national self-defense, U.N. Security Council resolutions, and pre-existing treaty rights.^[8] Citing an “existential threat to the United States” General John Kelly justifies American actions of intercepting vessels in the Pacific Ocean bound for Central America.^[9] Individuals onboard vessels found with narcotics contraband are detained on the Coast Guard ships for upwards of 90 days, shackled to the deck while exposed to the elements, and forced to relieve themselves in buckets.^[10] International Tribunals have stated that detention conditions and the necessity for prompt processing are areas where human rights and due process claims could be made,^[11] which raises the question of the legality of American Coast Guard actions. Coast Guard personnel justify their actions by the transportation logistics of getting the detainees back to the United States for prosecution.^[12]

This is not new behavior for the United States though. During the Haitian refugee crisis between 1980 and the mid-1990s, the United States sent the Coast Guard to intercept ships of refugees, who were usually sent to detention camps in Guantanamo Bay, Cuba. Only 6 of 21,461 Haitians detained on these refugee ships were admitted to the United States through their asylum claims.^[13] In other situations the United States has kept their vessels in international waters for weeks on end to justify the continued detention of individuals suspected of piracy or terrorism, before eventually releasing the detainees into the ocean on life rafts to float back to shore because no country was willing to take custody and prosecute.^[14] The United States has similarly employed their naval vessels as quasi-prisons following the capture of suspected terrorists. After the capture of Abu Anas al-Libi in 2013, the Al-Qaeda leader was kept aboard and interrogated on the U.S.S. San Antonio for weeks without being read his Miranda rights and without access to a lawyer.^[15] The United States justified these actions under jus in bello, or the laws of war, which permit extra-judicial detention of enemy combatants.^[16]

American actions show a willingness by the United States to operate black-sites, which employ torture and extra-judicial detention. Similarly, the United States has shown its comfort with stretching the application of international law by detaining individuals on the high-seas without the requisite grant of authority by the state with personal jurisdiction over the suspects. Nor does the United States recognize that American judicial principles apply to its vessels while on the high seas. Taken together, it is no large jump to therefore assume that the United States is likely able to operate mobile black-sites on the high seas, if it is not already. The combination of United States’ actions in regards to black-sites for detaining terrorists and the use of naval vessels are quasi-prisons lead to far-reaching legal implications. No country may claim sovereign authority on the high seas, which leaves the jurisdiction over detainees to the United States as the flag-state of the vessel. Effectively this leaves the detained individuals in a state of perpetual limbo, where they are unable to appeal to any judicial authority for relief, yet they are exposed to the unlimited potential of human rights violations. Violations which the United States justifies by ever-expanding readings of “threat to national security,” “national self-defense,” and “allowed by the laws of war.”

1. Silvia Borelli, Extraordinary Rendition, Counter-Terrorism, and International Law, Research Handbook on Int’l L. & Terrorism 361, 362-365 (2014). ↑
2. Id. ↑
3. Id. at 363, 378. ↑
4. Id. at 362-367 (referencing Convention Relating to the Status of Refugees art. 33, Apr. 22, 1954, 189 U.N.T.S. 137.). ↑
5. Borelli, supra note 1, at 369, 371, 377. ↑
6. Traci Tong, The US Coast Guard is Operating Floating Prisons in the Pacific Ocean, Outside US Legal Protections, The World (Nov. 24, 2017), https://www.pri.org/stories/2017-11-24/us-coast-guard-operating-floating-prisons-pacific-ocean-outside-us-legal. ↑
7. United Nations Convention For the Laws of the Sea art. 89, Dec. 10, 1982, 1883 U.N.T.S. 3. ↑
8. Seth Wessler, The Coast Guards ‘Floating Guantanamos’, N.Y. Times (Nov. 20, 2017) https://www.nytimes.com/2017/11/20/magazine/the-coast-guards-floating-guantanamos.html. ↑
9. Id. ↑
10. Id. ↑
11. Borelli, supra note 1, at 365. ↑
12. Tong, supra note 6. ↑
13. Leti Vollp, Fleeing the Oceans, LawFareBlog (Sept. 10, 2019), https://www.lawfareblog.com/fleeing-oceans. ↑
14. Wessler, supra note 8. ↑
15. Marisa Proges, America’s Floating Prisons, The Atlantic (June 27, 2014) https://www.theatlantic.com/international/archive/2014/06/americas-floating-prisons/373577/. ↑
16. Id. ↑