July 24, 2014
The European Court of Human Rights (ECHR) ruled that Poland had violated the United Nations Convention Against Torture when it allowed the CIA to torture and abuse prisoners on its territory. It also ruled that the country had violated the Convention by allowing the CIA to transfer prisoners, even though they would likely be subject to undisclosed detention. And the court ruled that Poland had violated the Convention by transferring prisoners to a country where they had a real risk of facing a "flagrant denial of justice."
The complaints of violations of the torture convention came from Abu Zubaydah [PDF] and Abd al-Rahim al-Nashiri [PDF].
Poland was ordered to pay 130,000 euros to Zubaydah and $100,000 to Nashiri for "enabling US authorities" to subject the two men to torture and ill-treatment. ECHR also sought to hold the country accountable for its "failure to carry out an effective investigation," a violation of the torture convention as well.
The Polish government has not decided whether it would like to appeal. Throughout the ECHR proceedings, the government consistently refused to constructively participate and provide information that would help the court make a fair ruling.
The United States government has alleged that Abu Zubaydah had a role in the planning of al Qaeda terrorism operations as "Osama bin Laden’s senior lieutenant." Zubaydah was the first so-called "high value detainee" captured by the CIA and, when he was captured in Pakistan, he was shot multiple times in the groin, thigh and stomach. Seriously wounded, he was transferred to a secret prison in Thailand, code-named "Cat’s Eye," and then transferred again to a restricted military area, Stare Kiejkuty, in Poland. There, he was subjected to "enhanced interrogation techniques" or torture.
Al Nashiri is alleged to have been involved in the bombing of the USS Cole in 2000 and the bombing of a French oil tanker in 2002. He was captured in Dubai and transferred to CIA custody. The CIA sent him to a secret prison in Afghanistan known as the "Salt Pit," where he was "shackled to a bar or hook in the ceiling above" his head for "at least two days." Al Nashiri was transferred to the same secret CIA prison where Zubaydah was held. He was also eventually transferred to Stare Kiejkuty as well.
While in CIA custody, Zubaydah (and Nashiri) were waterboarded. Zubaydah was waterboarded 83 times in Thailand. Zubaydah was subjected to beatings, confinement in a box, sleep deprivation, prolonged nudity, prolonged shackling of hands and or feet, exposure to cold temperatures, threats of ill-treatment to family, forced shaving and "stress standing positions" often while naked and with arms extended and chained above his head.
Al Nashiri was threatened with a handgun and a power drill during an interrogation in December while he was in detention in Poland. Interrogators also would smoke cigars and blow it into his face. He was put in stress positions where one officer expressed concern that his shoulders may have been dislocated. He also was subjected to a stiff brush that was used to induce pain.
Both Zubaydah and Nashiri were transferred to Guantanamo in 2006, where they remain in detention today. Nashiri has been put on trial before a military commission for his alleged role in the USS Cole bombing.
"All the measures were applied in a premeditated and organized manner, on the basis of a formalized, clinical procedure, setting out a 'wide range of legally sanctioned techniques’ and specifically designed to elicit information or confessions or to obtain intelligence from captured terrorist suspects," the court found, "Those explicitly declared aims were, most notably, 'to psychologically 'dislocate’ the detainee, maximize his feeling of vulnerability and helplessness, and reduce or eliminate his will to resist…efforts to obtain critical intelligence’; 'to persuade High-Value Detainees to provide threat information and terrorist intelligence in a timely manner’; 'to create a state of learned helplessness and dependence’; and their underlying concept was 'using both physical and psychological pressures in a comprehensive, systematic and cumulative manner to influence [a High‑Value Detainee’s] behavior, to overcome a detainee’s resistance posture.’"
Zubaydah and Nashiri were subject to "physically aggressive methods" and "psychological pressure" that was intended to cause "deep fear, anxiety and distress arising from the past experience of inhuman and degrading treatment in the hands of the interrogators" and "inhuman conditions of detention."
Poland knew that terrorist suspects like Zubaydah and Nashiri would be tried before a military commission and would receive a "different standard of justice" than US citizens, which would "amount to a violation of a right to receive a fair trial," according to the court’s rulings.
Secret detentions were a feature of the CIA’s rendition program. The court maintained, "Poland was aware that the applicant had been transferred from its territory by means of extraordinary rendition and that the Polish authorities, by enabling the CIA to transfer the applicant to its other secret detention facilities," exposed Zubaydah and Nashiri to risks of further abuse and torture.
The ECHR castigated Poland for the "lack of will" to conduct any type of investigation at the domestic level.
What most probably do not know is that Poland initiated an investigation in March 2008. For over six years, the country has been investigating the alleged existence of a CIA secret detention facility and not once bothered to name any Polish officials believed to have been involved.
As the EHCR concluded:
…In the Court’s view, this failure to inquire on the part of the Polish authorities, notwithstanding the abundance of publicly accessible information of widespread ill-treatment of al’Qaeda detainees in US custody emerging already in 2002-2003 could be explained in only one conceivable way. As shown by the sequence of the subsequent events, the nature of the CIA activities on Polish territory and Poland’s complicity in those activities were to remain a secret shared exclusively by the intelligence services of the two cooperating countries.
The Court sees no other reason capable of explaining why, when in November 2005 Poland was for the first time publicly named as a country that had possibly hosted a CIA secret prison and received CIA-associated flights at the Szymany airport, there was no attempt to initiate any formal, meaningful procedure in order to clarify the circumstances surrounding the aircraft landings and the alleged CIA’s use of, in the words of the 2005 HRW Statement, "a large training facility and grounds near the Szymany airport" maintained by the Polish intelligence service. Nor did the inquiries instituted by the Council of Europe and the European Parliament prompt the Polish State to probe into those widely disseminated assertions of human rights violations. Indeed, the only response of the Polish authorities to the serious and prima facie credible allegations of their complicity in the CIA rendition and secret detention was to carry out a brief parliamentary inquiry in November-December 2005. The inquiry produced no results and was held behind closed doors. None of its findings have ever been made public and the only information that emerged afterwards was that the exercise did not entail anything "untoward"…
Previously, the ECHR held the European Union responsible for the CIA’s detention and rendition of German national Khaled El-Masri and unanimously found Macedonia responsible for his "unlawful detention, enforced disappearance, torture and other ill-treatment and for his transfer out of Macedonia to locations where he suffered further serious violations of his human rights." The court accused Macedonia of not carrying out a full investigation, and he was awarded 60,000 euros.
The ECHR has demonstrated a willingness to do what US courts will not do, which is validate the claims of torture victims and allow them to bring cases against US government officials without permitting the government to invoke the "state secrets privilege" to shield themselves from being held responsible for criminal misconduct. They have exhibited a willingness to not permit European Union countries to get away with being complicit in CIA torture.
The court has set an example for the American justice system, one that will obviously not be followed by judges. Nevertheless, the rulings should force Americans to confront how the country has failed to investigate claims of torture appropriately and failed to publicly acknowledge the widespread abuses and violations of human rights that, despite the effort of the Senate Intelligence Committee, still remain concealed at the behest of the CIA.