Prisoner? What prisoner?

It appears that four of America’s most highly-valued terrorist prisoners were secretly moved to Guantánamo Bay in 2003 – years earlier than had previously been disclosed – then whisked back into overseas prisons before the Supreme Court could grant them access to lawyers.

This is just one of several creative techniques the US have employed during the ‘War on Terror’ to exclude prisoners’ rights to due process. Terms such as “enemy combatant” have removed legal protection under the Geneva Conventions, while domestic legislation has been rushed through to give more powers to the executive government.

During times of emergency, the courts are often the only bulwark between the individual and the state. Happily, in June 2004, the US Supreme Court successfully defended the rights of hundreds of men stranded in the legal black hole at Guantánamo Bay, when the case of Rasul v Bush granted detainees the right to challenge their detention in federal courts.

And yet on the eve of the Rasul v Bush decision, the Bush administration secretly spirited away four so-called “high value detainees” from a CIA camp at Guantánamo back into secret prisons abroad. The missing detainees—identified in an Associated Press report on Friday—were Abu Zubaydah, Abd al-Nashiri, Ramzi Binalshibh and Mustafa al-Hawsawi.

The story of their arrival and hasty departure from Guantánamo was pieced together by the Associated Press using flight records and interviews with current and former US officials and others familiar with the CIA’s detention programme.

Zubaydah, al-Nashiri and Binalshibh are believed to have been held by the CIA in a facility at Stare Kiejkuty, Poland, before being transferred to Guantánamo on 22nd September 2003 on a Boeing 737, registered N313P and operated by Stevens Express. According to the AP, Al-Hawsawi was taken from the Salt Pit prison in Afghanistan to Guantánamo on the same flight. The flight began in Kabul and stopped in Szymany, Poland, Bucharest, Romania, and Rabat, Morocco before the plane landed at Guantánamo.

After their removal from Guantánamo, the four were to spend a further two and a half years in the CIA’s secret prisons programme. In September 2006, President George W. Bush announced that they had been transferred out of the CIA programme and into the Defense Department’s prison at Guantánamo, where they remain today.

The US government thereby removed the possibility of the prisoners speaking with attorneys or human rights observers, or challenging their detention in US courts. Zubaydah and al-Nashiri would have been able to tell their lawyers about being waterboarded at a black site in Thailand in 2002. Al-Nashiri might have discussed having a drill and an unloaded gun held to his head at a CIA prison in Poland. But as one US official said, “Anything that could expose these detainees to individuals outside the government was a nonstarter.”

The CIA’s secret detention programme was authorized by a 2001 classified presidential directive, the contents of which remain a secret. While government officials would occasionally refer to individuals in CIA detention in “undisclosed locations abroad”, it took five years for President Bush to officially acknowledge the programme. Even after admitting its existence in a White House speech of 6th September 2006, he asserted that “those charged with crimes will be given access to attorneys who will help them prepare their defence, and they will be presumed innocent”. It is now clear that this couldn’t have been further from the truth.