European Court of Human Rights Delivers Powerful Condemnation of US Torture Program and Poland’s Role Hosting a CIA “Black Site”

3.8.14

Last week there was some extremely important news for those of us who have spent many long years hoping to hold senior US officials — up to and including former President George W. Bush and former Vice President Dick Cheney — accountable for approving and implementing a torture program in the “war on terror,” when the European Court of Human Rights unanimously condemned the US for implementing a program of extraordinary rendition and torture, and condemned Poland for its involvement in the program by hosting a secret torture prison — a CIA “black site” –  on its soil in 2002-03.

The rulings were delivered in the cases of two men, Abd al-Rahim al-Nashiri, a Saudi national accused of masterminding the attack on the USS Cole in 2000, and Abu Zubaydah (a Saudi-born Palestinian whose real name is Zayn al-Abidin Muhammad Husayn), mistakenly described as al-Qaeda’s number 3 after his capture in March 2002. In its report on the rulings, the New York Times provided a more appropriate description of Zubaydah as someone who is “believed to have overseen the operation of guesthouses in Pakistan,” who vetted recruits and “provided letters of recommendation allowing them to be accepted for training at a paramilitary camp in Afghanistan” — which, it should be noted, was not affiliated with al-Qaeda.

Both men are currently held at Guantánamo, where they have been since September 2006, but they were held for over four years in “black sites” where they were subjected to torture, including the site in Poland that the European Court of Human Rights highlighted in its rulings.

The existence of the prison was first exposed in November 2005, and I have been writing about it since 2006, although the Polish authorities have refused to officially acknowledge its existence. Nevertheless, an investigation into the prison began in Poland in March 2008, and al-Nashiri and Zubaydah — and a third man, Walid bin Attash — were given “victim status” as a result of that investigation between 2010 and 2013 (see here and here).

The rulings by the European Court of Human Rights followed a hearing in December, which I wrote about here, and an archive of my articles about European complicity in torture, primarily involving Poland, but also Romania and Lithuania, where “black sites” were also located, but where there has been greater resistance to investigations, can be found here.

As the Guardian described it, Poland “became the first EU country held to account for its involvement in the CIA’s extraordinary rendition programme” when the court “found it guilty of the unlawful detention and torture” of al-Nashiri and Zubaydah, by failing to prevent the two men from being subjected to “torture and inhuman or degrading treatment” after their arrival at the prison.

The court also ruled that the Polish government “had failed to conduct a proper investigation into the episode, and ordered it to pay €100,000 (£79,000) compensation to each of the men,” as the Guardian put it, adding that the rulings “are the first in a series of cases being brought against European states,” with Romania and Lithuania to follow. The court noted that the compensation was awarded because of the “extreme seriousness of the violations” of the European Convention on Human Rights, and also awarded Abu Zubaydah €30,000 costs.

At December’s hearing, the court heard that the prison both men were held at, at the Stare Kiejkuty military base in north east Poland, was codenamed “Quartz,” and that both al-Nashiri and Zubaydah, who had previously been held in Thailand, were flown there on the same executive jet in December 2002. Both men are amongst the three men the US has admitted subjecting to waterboarding (a form of controlled drowning and an ancient torture technique), the other being Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks.

As the Guardian noted, the judgment in the Abu Zubaydah case “recounted how he had described being repeatedly beaten, confined in a small box, and brought out to be repeatedly waterboarded.”

In Zubaydah’s words, taken from the account he gave to representatives of the International Committee of the Red Cross, after his arrival at Guantánamo in September 2006, which was later leaked:

I was … put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position. The bed was then again lowered to horizontal position and the same torture carried out again with the black cloth over my face and water poured on from a bottle. I struggled against the straps, trying to breathe, but it was hopeless. I thought I was going to die.

In al-Nashiri’s case, the judgment described “how he had been kept naked, subjected to mock executions, hoisted by his wrists while his arms were shackled behind his back, and told that his mother would be sexually abused before him,” as the Guardian put it.

As well as condemning Poland for its involvement in the torture of Abu Zubaydah and Abd al-Rahim al-Nashiri, the court also made a point of noting that Zubaydah’s continuing imprisonment without trial at Guantánamo was “a flagrant denial of justice,” words that the US will presumably try to ignore, even though it applies not just to Zubaydah but to almost all of the 149 men still held — although not al-Nashiri, who, ironically, is on trial at Guantánamo, but is engaged in a protracted struggle to get the authorities to allow evidence of his torture to be discussed.

In another blow not just for Poland but for the US, The court found that “the rendition programme was completely illegal,” as the Guardian described it, because its rationale had been “specifically to remove those persons from any legal protection against torture and enforced disappearance and to strip them of any safeguards afforded by both the US constitution and international law.”

The court also spelled out what it thought of Poland’s involvement, calling it “inconceivable” that plans “could have landed in Poland,” and the CIA “could have operated the prison,” without the awareness of the Polish government — as Senator Josef Pinior has long maintained (and as I wrote about in 2012).

The court stated, “It is also inconceivable that activities of that character and scale, possibly vital for the country’s military and political interests, could have been undertaken on Polish territory without Poland’s knowledge and without the necessary authorisation being given at the appropriate level of the state authorities.”

In addition, the court ordered the Polish government to “seek assurances from the US that Nashiri will not face the death penalty” in his trial by military commission, knowing full well, I am sure, that, when charges were referred against al-Nashiri, in September 2011, the Pentagon stated, “The Convening Authority referred the charges to a capital military commission, meaning that, if convicted, Al-Nashiri could be sentenced to death.”

The court also criticized Poland for its prosecutor-led investigation, which, the Guardian noted, has “faced accusations that it has been drawn-out and ineffective,” although it should be noted that the US’s absolute refusal to cooperate has not helped matters. However, the court criticized Poland for having “failed to provide an effective remedy,” adding that its attitude to the investigation also “amounted to a breach” of the European Convention on Human Rights.

Responding to the ruling, Joseph Margulies, who is one of Abu Zubaydah’s lawyers and a visiting professor of law and government at Cornell University, told the New York Times that, the ruling was “a seminal decision that would help force a public reckoning in Europe and the United States about the secret rendition program and its tactics,” as the Times put it.

Margulies said, “It’s the first time a court has condemned a European state for its role in the rendition program. From top to bottom, the case is a comprehensive condemnation of the CIA, the black-site program and Poland’s role in it.”

Amrit Singh of the Open Society Justice Initiative, which represents al-Nashiri and produced a major report on the rendition and torture program last year, said the ruling “ended the impunity for those engaged in abuses connected with the rendition program,” as the Times described it. “In stark contrast to US courts that have closed their doors to victims of CIA torture,” she said, “this ruling sends an unmistakable signal that these kind of abuses will not be tolerated in Europe, and those who participated in these abuses will be held accountable.”

For the Polish president, spokeswoman Joanna Trzaska-Wieczorek admitted that the ruling was “embarrassing for Poland,” and called it “a burden both in terms of our country’s finances as well as its image,” although she did not rule out an appeal. That, however, strikes me as unlikely.

What needs to happen now is for the Polish ruling to have a tangible impact on the imminent release of an edited and redacted version of the Senate Intelligence Committee’s damning report on the torture program, and for Romania and Lithuania also to face condemnation from the European Court of Human Rights. It is not time for President Obama to try and brush it all under the carpet once more by conceding, as he did on Friday, “We tortured some folks,” but adding, “it is important for us not to feel too sanctimonious in retrospect about the tough job that those folks had,” because “a lot of those folks were working hard under enormous pressure and are real patriots.”

As Article 2.2 of the UN Convention Against Torture (which Ronald Reagan signed) states, “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 of torture.”

Andy Worthington is a freelance investigative journalist, activist, author, photographer and film-maker. He is the co-founder of the “Close Guantánamo” campaign, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here – or here for the US).

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6 Responses

  1. Andy Worthington says...

    My apologies for posting this late in the day, but I’m in Dorset, after visiting Avebury and Stonehenge, travelling west to Cornwall on a two-week family holiday that involves camping and staying with friends. My apologies also for writing so belatedly about the European Court of Human Rights’ rulings, which were delivered while I was at the WOMAD world music festival. My internet use will be patchy over the next 12 days or so, but I’ll check in when I can, and hope also to write a few articles along the way. I hope you’ll like and share this story if, like me, you hope one day that the torturers of the Bush administration (up to and including Bush and Cheney) will be held accountable for their crimes.

  2. arcticredriver says...

    Thanks Andy! Enjoy your well deserved break!

    Abu Zubaydah’s case is so strange — more strange than any thriller writer would make up.

    Abu Zubaydah lost his eye in captivity. I think I read an account that they took him to the torture chamber with two healthy eyes, endured a lot of pain, he woke up back in his cell, with his head bandaged, and only one eye. If I am remembering this account suggested that part of his interrogation plan that day was to either threaten to tear his eye out of his head; or to start to tear an eye out of his head; or to first threaten to tear an eye out of his head — and if he didn’t confirm some wacky false amateur theory the interrogators held the plan was to actually rip his eye from his head. The account implied to me that they actually planned to tear his eye from his head; or that the prying of his eye out its socket, without severing the optic nerve or muscles, to scare him, failed — and they ended up tearing the eye out without meaning to go that far.

    John Yoo’s bizarre memo, claiming the President had the authority to order any kind of torture, without limit, contained some bizarre, extreme, explicit examples. One of those explicit examples was that interrogators could rip a subject’s eye right out of his skull. I think practically everyone assumed Yoo included the more bizarre, extreme examples, like ripping eyes out of subject’s skulls for some idiosyncratic reason of his own.

    But I think Abu Zubaydah’s missing eye strongly implies that Yoo knew that the CIA had already ripped Abu Zubaydah’s eye from his skull, when he wrote the memos.

    Haven’t some commentators speculated that legal memos like Yoo’s were written after the CIA, Special Forces, and other members of the intelligence establishment, like Carolyn Wood had already began to use torture.

    If Abu Zubaydah lost his eye before President Bush had endorsed the Yoo memos, then, even if one were to accept the dubious proposition that President Bush’s permission removed the use of torture from being a war crime, could Bush’s endorsement make the use of torture not a war crime — retroactively?

    If the account I read of how Abu Zubaydah lost his eye is correct, what it strongly suggests is that if he couldn’t even remember how he lost his eye during that torture session then the session was totally worthless.

    One of the bizarre elements of his case is that no one in the US intelligence establishment seems to have given any consideration to his claim that the Khaldan camp was never an al Qaeda camp. The USA has never made any evidence public that it was an al Qaeda camp. I think it is most likely true that Abu Zubaydah and al Libi were rivals of Osama bin Laden.

    I haven’t read FBI interrogator Ali Soufan’s book. But I think if he had shown any sign of considering that Al Libi’s opposition to Osama bin Laden in 2000 made those who worked at the Khaldan camp potential allies, or at least neutrals, not enemies, press coverage of him would have covered this.

  3. Andy Worthington says...

    Thanks, arcticredriver, for your considered comments, as ever.
    I’m very much enjoying my break – we’re in Dorset now, and about to head off to Cornwall. The promised rain has finally arrived, but hopefully won’t settle in for the duration.
    Thanks for mentioning Abu Zubaydah and the loss of his eye – a horrific story that deserves to be remembered. I’m not sure that it was anything other than a disgraceful demonstration of his captors’ absolute power over him, but it gives me the chills thinking about that level of control over another person – and it fits with the clinical cruelty of the use of torture in the “war on terror.”
    I cross-posted – with a brief commentary of my own – Jason Leopold’s story about Abu Zubaydah’s eye here: http://www.andyworthington.co.uk/2011/05/19/high-value-detainee-abu-zubaydah-blinded-by-the-bush-administration/

  4. Andy Worthington says...

    Peter B. Collins wrote, in response to my first comment above:

    No need to apologize, Andy….this is an important addition to the limited coverage of this story. It’s outrageous that Poland will be held accountable for what Obama described ineptly: “We tortured some folks”. He followed that with bald rationalizations for Americans who authorized that torture, suggesting it’s “sanctimonious” to call them criminals. So enjoy your break with the family…..looks like Feinstein’s review of the redacted Review will delay the torture report at least until you return.

  5. Andy Worthington says...

    Saleyha Ahsan wrote:

    And Blair

  6. Andy Worthington says...

    Thanks to everyone who has liked and shared this important story. Good to hear from you, Peter and Saleyha. I saw, just before I left, that Sen. Feinstein was so appalled by the extent of the CIA’s redactions that the report won’t be released without further wrangling, which I think is necessary. I do think, however, that the full, unredacted report is crying out for a whistleblower!
    And thanks for the reminder of Blair as a major player in the Bush administration’s war crimes, Saleyha. Here in the UK there was a tendency to think of Blair as Bush’s poodle, but that underestimates how much of a part Blair played in providing credibility for the Iraq invasion within the US.

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