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

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).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the “Close Guantánamo” campaign, and, if you appreciate Andy’s work, feel free to make a donation.