As Poland’s Legacy of CIA Torture Erupts, Europe’s Human Rights Court Must ActFor more visit the Open Society blog.
Poland has never officially acknowledged allowing the CIA to hold and interrogate suspects at a secret CIA “black site” in 2002 and 2003, despite a judicial investigation into the affair launched in 2008.
But this week, just days after the visit to Warsaw by President Barack Obama, the issue has erupted into a major political row, after a front-page story in the leading daily newspaper Gazeta Wyborcza claimed that the prosecutor heading the black site investigation had been removed for political reasons.
The newspaper asserted that the previous prosecutor may have been preparing to charge high ranking [Polish, I believe] officials with crimes against humanity over the human rights abuses that occurred at the site, which included torture and the holding of suspects incommunicado.
On Tuesday, the Polish media additionally reported that Jozef Pinior, a Polish member of the European Parliament, has confirmed the existence of a document signed by Mr Miller regulating the functioning of the secret CIA prison at Stare Kiejkuty. The document, according to Pinior, included establishing what should be done “if a dead body of one of the persons held there should appear.”
His statement —- especially in light of attempts by Poland and the U.S. to evade every measure of accountability for torture and rendition -— further underscores the need for the European Court to swiftly intervene in the case of Guantánamo prisoner Abd-al Rahim al-Nashiri, who was brutally tortured at that prison and now faces the prospect of an unfair trial by military commission followed by the death penalty.
On May 6, 2011, the Open Society Justice Initiative filed a case against Poland on behalf of al-Nashiri before the European Court of Human Rights. The case -— still pending before the Court -— seeks accountability for Poland’s active complicity in al-Nashiri’s torture and incommunicado detention at the CIA prison in Poland, as well as in his transfer from Poland despite the substantial risk of his facing the death penalty in U.S. custody. The case also urges the Court to direct Poland to use all available means to preclude the death penalty in his case.
The governments of Poland and the United States appear to be working hand in glove to evade accountability for torture and rendition. According to Gazeta Wyborcza, Poland and the US agreed that the US would not reply to a Polish request for assistance in the pending Polish investigation, so as to prolong the investigation until the case could be suspended.
Meanwhile, on May 16, 2011, the United States Supreme Court declined to review the last remaining legal challenge to U.S. rendition practices in the case of Mohammed v. Jeppesen, leaving intact the dismissal of the case on grounds of the state secrets privilege.
President Obama lavished praise on Poland during his visit there, declaring Poland “one of our closest and strongest allies,” and a “leader” on the rule of law.
The visit certainly confirms the strength of the alliance between Poland and the United States. But all the evidence suggests that in dealing with the legacy of the CIA's "extraordinary rendition" program it is regrettably an alliance to subvert rather than uphold the rule of law. U.S. courts have largely ratified such subversions of the rule of law and denied rendition victims their day in court. It is now up to the European Court of Human Rights to lead the way forward.
Thursday, June 2, 2011
Wednesday, September 8, 2010
The five men include former prisoner Binyam Mohamed, whose case has been covered extensively by the press, and whose torture is a key reason the government of Great Britain recently announced that there would be an investigation of British collaboration with the United States on the torture and rendition programs. A UK Guardian story reported on protests by the legal charity Reprieve over the appointment of the intelligence-linked Sir Peter Gibson to head the inquiry. I'd made much the same exception to Gibson's appointment in my coverage of the announcement of the inquiry back in July. Of course, the British government claims no conflict of interest for the 76-year-old Gibson, who is Intelligence Services Commissioner, responsible for monitoring secret bugging operations by MI5, MI6 and GCHQ (Britain’s version of the NSA).
The 9th Circuit's final vote was tight, 6-5, and the decision and the dissents are well-worth reading (PDF). But this ruling is an outrage, and another indication of the anti-democratic nature of this supposed democratic state, made more ironic and sickening when you consider that the U.S. military spills the blood of hundreds of thousands, and makes refugees out of millions more, all in the name of spreading "Democracy." It would be funny, if it weren't so... so criminal and disgusting.
Consider this story from just one of the five defendants, Ahmed Agiza, seeking damages against Jeppesen DataPlan, Inc, the Boeing subsidiary that leased the planes used in some of the torture renditions. He was kidnapped by the CIA from Sweden and sent to Egyptian torturers three months after 9/11. Note, too, that Sweden had negotiated with Egypt guarantees of humane treatment (for all of you who believe the Obama administration's claims that getting guarantees regarding conditions of imprisonment and interrogation from "host" countries makes rendition "safe"). From the court's ruling:
Plaintiff Ahmed Agiza, an Egyptian national who had been seeking asylum in Sweden, was captured by Swedish authori- ties, allegedly transferred to American custody and flown to Egypt. In Egypt, he claims he was held for five weeks “in a squalid, windowless, and frigid cell,” where he was “severely and repeatedly beaten” and subjected to electric shock through electrodes attached to his ear lobes, nipples and geni- tals. Agiza was held in detention for two and a half years, after which he was given a six-hour trial before a military court, convicted and sentenced to 15 years in Egyptian prison. According to plaintiffs, “[v]irtually every aspect of Agiza’s rendition, including his torture in Egypt, has been publicly acknowledged by the Swedish government.”From the ACLU press release:
SAN FRANCISCO – A federal appeals court today dismissed a case against Boeing subsidiary Jeppesen DataPlan, Inc. for its role in the Bush administration's extraordinary rendition program. The American Civil Liberties Union and the ACLU of Northern California filed the lawsuit in May 2007 on behalf of five men who were kidnapped by the CIA, forcibly disappeared to U.S.-run prisons overseas and tortured. The Bush administration intervened in the case, improperly asserting the "state secrets" privilege in an attempt to have the lawsuit thrown out.Others are responding to this terrible decision by the Ninth Circuit, including Marcy Wheeler, Nick Baumann, Josh Gerstein, and Garrett at Daily Kos. For more on the rendition story, see my article at Firedoglake last July, UK on U.S. Rendition: “Is it clear that detention, rather than killing, is the objective of the operation?” For an even longer historical perspective, read The Real Roots of the CIA's Rendition and Black Sites Program by H.P. Albarelli and Jeffrey Kaye, published at Truthout.org last February.
In April 2009, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled that the government must invoke the state secrets privilege with respect to specific pieces of evidence – not over an entire lawsuit. The Obama administration appealed that ruling, and in December the appeal was heard by an en banc panel of all 11 Ninth Circuit judges. According to the ACLU, today's ruling all but shuts the door on accountability for the illegal program. The ACLU intends to seek Supreme Court review of the decision.
The following can be attributed to Ben Wizner, staff attorney with the ACLU, who argued the case before the Ninth Circuit:
"This is a sad day not only for the torture victims whose attempt to seek justice has been extinguished, but for all Americans who care about the rule of law and our nation's reputation in the world. To date, not a single victim of the Bush administration's torture program has had his day in court. If today's decision is allowed to stand, the United States will have closed its courtroom doors to torture victims while providing complete immunity to their torturers. The torture architects and their enablers may have escaped the judgment of this court, but they will not escape the judgment of history."
Attorneys on the case are Wizner, Steven Watt, Steven R. Shapiro and Jameel Jaffer of the national ACLU, Julia Harumi Mass of the ACLU of Northern California, Paul Hoffman of the law firm Schonbrun DeSimone Seplow Harris & Hoffman LLP and Hope Metcalf of the Yale Law School Lowenstein Clinic. In addition, Margaret L. Satterthwaite and Amna Akbar of the International Human Rights Clinic of New York University School of Law and Clive Stafford-Smith and Zachary Katznelson represent plaintiffs in this case.
Bottom line? Ben Wizner described it well, calling it a sad, sad day for all torture victims, as well as those who care about the rule of law. Marcy Wheeler put it more acerbicly:
So basically, the government can kidnap you and send you to be tortured – as they did with Binyam Mohamed – yet even if your contractors acknowledge what they were doing, if the government wants to call their own law-breaking a secret, the most liberal Circuit Court in the country agrees they can.In a related story, see Adam Goldman's AP piece on the torture of Abd al-Rahim al-Nashiri at a CIA black site prison in Poland, where he had been sent via rendition back in 2002 and 2003. Al-Nashiri famously had both a gun and a drill held threateningly to his head during the torture. Ostensibly, according to the article, the torturer in question was an ex-FBI agent and CIA interrogator named "Albert." The article looks meant to warn DoJ prosecutor John Durham not to bother with a prosecution of the CIA agents involved, as doing so would open a can of worms, since previously DoJ declined prosecution, and "Albert" went on to work for the CIA for years after his "reprimand" in the Nashiri case.
As al-Nashiri's attorney said about her client's case:
"Terrorizing a hooded, shackled prisoner is torture," [Nancy] Hollander said. "I will do everything in my power to make sure the world knows that agents of the U.S. government tortured my client and have now held him in violation of U.S. and international law for over eight years."
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