Al-Nashiri, Abu Zubaydah v Poland: the right to truth

Abu Zubaydah, whose eye was removed by the CIA during detention

“the hearing (…) lasted far beyond the usual 90 minutes. It lasted over three hours.”

On December 2nd, 2013, the European Court of Human Rights (ECHR) held an in camera hearing in the cases of two Guantanamo detainees, Al-Nashiri and Abu Zubaydah, petitioning against Poland for facilitating their detention, torture, and rendition to the United States where they have been detained – without charge – ever since. Their lawyers, representing them in the European institution based in Strasbourg, France, filed simultaneously, allowing their cases to merge and form a more cohesive pattern against the use of what Europe has referred to “black sites” of the CIA: detention sites, secret prisons, located in remote areas, where local law enforcement either turned a blind eye or thoroughly collaborated with American intelligence on suspects of terrorism in the vague, overwhelming and never ending “War on Terror”. During that hearing, representatives of the Polish government, Judges and counsels for both applicants heard testimonies from expert witnesses on the use of torture on the applicants and the specially chartered flights that took them from Thailand to Poland, and from Poland to the United States.

The following day, the hearing consisted in the Polish government forming an argument before the Court as to whether its domestic investigation of the allegations – launched in 2008 – had met the standards of fairness, length and equity required by the European Covenant of Human Rights. Beyond the strict legality of the argument, lawyers for both parties – and especially their Polish advisors – were unequivocally denouncing the political pressure exerted on the Polish government and its intelligence officials onto the Department of Justice, where the investigation has been lingering for five years now, and seeing no sign of ever coming into a close. Nowak-Far, the Under-Secretary of State for the Ministry of Foreign Affairs, opened the seance with a somewhat unassured claim that “trust must be established” that resolution of the investigation would be made domestically; that the Polish government had no intention of burying the case under paperwork or, as counsel suggested, the weight of classified information pertaining to intelligence activities, not only on Polish territory, but also per their agreement with US intelligence officials. Quickly into Nowak-Far’s argument, the issue of secrecy reared its ugly head, in a constructed speech that is all too frequent in the current climate of foreign affairs. Poland, which had requested that the hearings be made behind closed doors – subsequently refused by the ECHR, as per their rules of transparency – lamented that “media pressure, public pressure” were affecting the investigation, meant to be objective and impartial. According to Nowak-Far, Poland is, since 2008, still collecting evidence of the rendition of torture of the applicants, and believes any disclosure or even recourses to a superior Court is “premature”. There was an definite sentiment of wishing to keep the ECHR away from Polish proceedings, and to attribute to the Polish government, and its discretionary use of government secrecy, the right to dispose of the investigation in a manner that they felt was “convenient”. This adjective would be often used against them by the applicants’ legal counsel during the course of the hearing, which lasted far beyond the usual 90 minutes. It lasted over three hours.

No matter how intensive the preparations of the Polish government – by Nowak-Far, at first, later followed by Sliwa, Deputy Krakow Prosecutor of Appeal – it could not manage to hide the blatant and outstanding inconsistencies of the case. From the moment the use of rendition had emerged for Al-Nashiri and Abu Zubaydah, in 2005, it took three additional years for Poland to launch an investigation, a delay that is unacceptable under European standards and especially outrageous given the violations committed by Poland. The second issue was the considerable amount of classified information that was not even made accessible to legal counsel. The entire case is shrouded is secrecy, cloaked with political intrigue, and veiled by the notion of national security – Poland’s and the United States’. At the heart of the Al-Nashiri and Abu Zubaydah case lies the concept of whether national security, its intrigues, its myths, its almost occult following bequeaths the violation – gross and systematic – of human rights not only on European territory, but later on United States territory after leaving the European Union (the Covenant strictly forbids the extradition of any citizen if said alleged criminal is at risk of unfair trial, torture or capital punishment.) Poland has tried its hardest to delay the investigation, to the point of even changing prosecutors on three different occasions, one while one prosecutor was hearing M. Pietrzak, one of the counsels for Al-Nashiri. What the Court heard on December 3rd was nothing short of sheer incompetency in the part of the Polish administration to meet the human rights standards it failed to uphold while the secret prison while still active under CIA supervision. The representatives of the government of Poland looked worried and at a loss for words when counsel after counsel addressed the Court with damning tales of their relationship with the Polish Department of Justice, which spoke volumes as to the ways in which an executive power can go to hide what could be to its disservice.

the European Court of Human Rights, the morning of the hearing.

“Poland not only should have known, but Poland did know”

What emerged from both counsels was fierce determination and the appeal that a sovereign Court might work in their favor. Ms. Singh, counsel to Al-Nashiri, opened the proceedings on the applicant’s side with a powerful and focused call to administer justice in a case that has failed to see any protection of the rule of law for its applicants. The Court, she said, would be the first to “meaningfully address the issue of torture”. In a passionate call to “end the impunity”, she re-assessed the “cogent, credible and categoric testimony” heard during the previous day’s hearing that Al-Nashiri had indeed been transported to Poland, sent to a secret prison built specifically for those practices, detained, then sent back to the United States where he remains today. Legal counsels have even obtained documents from both CIA and USG that attest to that effect – while Poland neither confirms nor denies the accusations, it remains vague and unassertive as to whether it has indeed participated in activities under US auspices. In the case of rendition, Singh insisted that Poland was not only guilty of facilitating the detention of Al-Nashiri, but also to actively cover-up US rendition flights, and not act under the law when they knowingly assisted the torture of the applicants. Payment of fees to CIA officials, extra bonuses in cash granted to Polish officials and airport workers who assisted in the cover up and departure of rendition flights  have all been documented by what the counsel asserted were credible sources, while Poland carried out claiming that bias from witnesses and anonymity of testimonies made them, apparently, unreceivable. Singh added, in a moment that sent a chill down the audience’s spine, that there had even been agreements between Polish and US officials as to the procedure to adopt should a prisoner die during the detention.

M. Pietrzak’s characterisation of a “politically inconvenient” investigation for Poland was echoed by M. Hughes, representing Abu Zubaydah. The applicant, being in detention in Guantanamo Bay for over a decade without being charged, is now, according to his counsel, in “debilitating conditions”. Those crimes were committed by state agents acting, according to M. Hughes, in the name of state secrecy. The counsel insisted that the Court takes into account the severe aspect of the case, which is that those violations of fundamental human rights were committed by state agents, for a nation represented at the Council of Europe. The responsibility is born by the government of Poland, acting in complicity with the United States. The “effective remedy” promised by the rule of law by which each Council of Europe member state is require to abide has not been delivered by Poland, which failed to conduct any fact-finding mission; all the evidence presented, beyond a reasonable doubt, came from independent sources – human rights organisations, investigative journalists – while Polish state agents were placed at the disposal at the CIA under what M. Hughes called “open-ended means”, clearly indicating that Poland had no interest in ever trying to reign in or limit the scope of CIA activities on its territories, no matter how grave the violations and difficult the cover-up operation. The responsibility of the state, he said, can’t be denied. “Poland not only should have known”, he concluded, “but Poland did know”.

Ben Emmerson, QC – UN Special Rapporteur of Human Rights While Countering Terrorism (un.org)

The intensity of the hearing, however, was only matched by the presence of Ben Emmerson, United Nations Special Rapporteur to the protection of human rights while countering terrorism, an issue that has required his expertise a little too often in recent years. Mr. Emmerson, attending the hearing as a third party, insisted on offering his comments to the Court, in a way that took the case out of the legalist field that Poland wished it had maintained, and into a broader and wider scope that question not just the treatment of Al-Nashiri and Abu Zubaydah by Polish and American forces, but also the question of secrecy, confidentiality, classification of information, and access to legal counsel and representation. Mr. Emmerson attended the hearing in order to affirm and perhaps re-affirm the United Nations’ Human Rights Council’s commitment to the right to truth – both as an individual and collective component. In this he wishes to address the ECHR as “we speak in one voice in the understanding of this right”. The role that this case will play in jurisprudence recent and future will be not only to guarantee that the public may know about the suffering of the applicants, “but of other victims, of similar crimes, as members of the public have the right to know what happened”. This declaration comes in direct, diametrical opposition to the wishes of the government of Poland, repeatedly asking, begetting the Court to not let the details of the hearings be reported in the press, not let members of the public attend the hearings, and even blocking lawyers from accessing classified information – information that M. Pietrzak said “should not even be classified”. Both counsels have admitted to having been allowed to access classified information on only two occasions – one for only three hours, the second for fifteen minutes (!) without possibility of photocopy, remote access, and transportation of files. Mr. Emmerson, and through him the United Nations’ Human Rights Council, believe that the accountability of state officials in what he qualified to be “gross and systematic human rights violations” could only be achieved through transparency.

This hearing, and the case of those two applicants before the Court on this December day, is in the direct following of a process of seeking the truth since the Bush-era conspiracy of extrajudicial rendition and extrajudicial processes of suspects of terrorism. In recent years, however, through various jurisdictions, the process has “sped up”, and has implicated an extraordinary number of member-states, besides the United States (54 in total so far). In the high value target program of the CIA, the use of torture was systematic. Mr. Emmerson was deliberately choosing short sentences, and maximum-impact wording for an intervention that was unprecedented in the ECHR. “I use the word torture without hesitation”, he said. “I do not recognize the CIA term of ‘enhanced interrogation'”, this euphemism destined to cover the blithe horror that torture conveys. The judicial proceedings in Italy this year, against the CIA rendition program involving Italian intelligence officers accused of cooperating with the CIA, “was nothing more and nothing less than a straightforward application of the rule of law that bounds each member of the United Nations”. Although Mr. Emmerson strongly encourages the multiplication of proceedings regarding rendition, he expressed his “regret” at the still unbelievable scope of the crimes committed under what he dubbed “an international conspiracy”.

Mr. Emmerson focused on the main issue that riled up the legal counsels of both applicants: that evidence had to be found from outside sources than the Polish investigation, and that every shred of detail they were legally supposed to access was barred from classification and national secrecy. At this stage, Mr. Emmerson explained he formally submitted to the Court a copy of the 2011 Feinstein report – the result of a Senate Intelligence Committee investigation into the CIA high value target program, which Feinstein herself qualified of a “regrettable mistake” (sic). The frustration of the constant impunity and lack of accountability of heads of state on issues of national security may be the biggest issue in violations of international human rights law to this day; the presence of a United Nations Special Rapporteur at a ECHR hearing only highlights further the necessity to reach a common and global agreement on the superiority of fundamental human rights above issues of national security, especially when said national security fails to abide by standards of human rights law when countering terrorism – a post specifically personified by Mr. Emmerson, and a question that the ECHR answered in 2002, releasing a set of guidelines for member states following a series of petition for human rights violations by the United Kingdom under their Anti-Terrorism, Crime and Security Act (ATCSA) 2000. Mr. Emmerson was delighted to also announce that a report on similar activities and collusion in the United Kingdom had been made by Lord Gibson, and the publication was imminent; not in a matter of months, he said, but in a matter of days, in what may be the most comprehensive overview of British and American intelligence cooperation in these matters.

Back in March, Mr. Emmerson took to the Guardian to express his commitment to uncover the truth behind the practice of rendition, and presented a report to the UN Human Rights Council in Geneva calling for the United States, as well as the United Kingdom, to release information regarding the practice under the Bush Administration. The evidence, he said, must also contain what has been exposed by The Guardian and the BBC. It is important to be reminded of this editorial for two reasons: one, the Obama Administration has carried on the practices of the Bush Administration, not only in matters of rendition, but in matters of complete secrecy, of national security classification, of lack of transparency, of covert operations and of extrajudicial techniques of interrogation specifically and counter-terrorism more generally. The accountability that is requested by Mr. Emmerson should of course date back to the first days of the Patriot Act but also continue under the policies of President Obama, whose actions in Pakistan, Yemen, Iraq, Afghanistan, Somalia, and in the military base of Guantanamo Bay must be uncovered, released, exposed in full, in matters of public interest. What makes Mr. Emmerson’s battle for transparency under the Obama Administration so difficult is the current climate is to destroy, intimidate, detain and charge whistleblowers, from Edward Snowden to the tragic case of Chelsea Manning, the recent imprisonment of Jeremy Hammond and the war on the PayPal 14 – the financing behind WikiLeaks. The war on information is no longer a myth or a strange paranoia roaring an ugly head around newrooms. It’s effective and, in its pursuit of Chelsea Manning in military trials, also defers to military commissions digging through charges of espionage and conspiracy: the Administration is, in fact, at war, and not only with those evanescent, vague and ubiquitous terrorists. It is at war against its very own constitutional principles. The second point to emerge in Mr. Emmerson’s quest for accountability in human rights violations is what he calls the “right to truth”. This right to truth is in direct opposition to the current culture of secrecy, of executive authority bypassing regular legislation, of presidential edict avoiding democratic voting, and the extreme militarisation of law enforcement that serves to silence the dissent.

Extent of the damage (washingtonpost.com)

“Confidentiality in no way absolves them of responsibility.”

The point of contention, which should be addressed by the Court in its deliberation, was whether the right to truth – accorded to the applicant receiving victim status – could be extended to the general public. If, in the Del Prada Rio v Spain case, the ECHR granted a personal right to truth to the applicant, the UN wishes for this to be extended to the collective in the name of freedom of information and access to information. The CIA high value target program can be traced back to a foreign policy of systematic violations and enforced disappearances dating back to Latin America in the early 1980s. The United Nations Special Rapporteur on Freedom of Expression said it clearly – “the right to truth is collective. Information is essential to a democratic system – in the context of human rights violations, there needs to be a clarification of the circumstances, of context, of policies, and of the institutional failures that let those happen in order to restore confidence in the system. The right to know what happened is fundamental for participatory decision-making in society.” It may appear counter-intuitive, Emmerson continued, “to conventional lawyers – but once it is recognized, every individual is entitled to invoke that right.” The exposure of grave and systematic violations can not be dependent on the willingness or the disposal of a victim to launch proceedings – the victim, or if deceased, their family, which can be found reluctant to seek judicial redress for various reasons. It is therefore up to the citizenry and specifically the members of the media to invoke the right to freedom of information in cases of systematic violations as to ensure the accountability of the guilty. The presence of the United Nations at the hearing was to be placed in a political and security context. It did not need to reaffirm the commitment to human rights law, embedded into the ECHR; it needs to address the global, international risk of being faced with constant classification of information in the face of important proceedings that need to establish the fundamental and non-derogating character of human rights. Emmerson insisted: “the success of initiatives to counter terrorism depends on persuading societies that democratic governments are committed to the rule of law and respecting human rights. To end impunity.” With a snark it was hard to conceal, he insisted it was “hard to win the hearts and minds” when horrible crimes are committed under the cloak of executive authority.

The United Nations Special Rapporteur ended his intervention by stating that freedom of information and human rights violations are intrinsically intertwined. The right to an effective remedy implies the right to open proceedings, and open proceedings imply access to information, which all lead to the right to truth. The United Kingdom, which has refused to enshrined Article 13 of the Covenant in domestic law, will soon bear the full responsibility of the implication of human rights violations.

Ms. Singh, in conclusive arguments, followed in the path of the Special Rapporteur insisting on Poland trying to “obscure the truth”. The longer the delay, the more difficult it is for the legal counsel to access witnesses, to extract testimonies, and to provide evidence. The facts presented at the in camera hearing were not contestable, she explained, “because they are true”. Mr. Hughes carried on: “Poland is unwilling to face reality. Confidentiality in no way absolves them of responsibility.”

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About K
bastard banshee. devious lawyer. Lucille Bluth. probably jetlagged.

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