I heard you like black sites

Hey Donald, I heard you were reconsidering CIA  black sites overseas. I have a few notes for you. It will take more than 140 characters or less to explain the obligations of human rights law under counter terrorism, but I am hoping against hope you will pay more attention to this than you do your own intelligence briefings. 

Let us first agree on what we colloquially refer to as a “CIA black site”: those are secret prisons, detention facilities operated by the Central Intelligence Agency in which detainees are held incommunicado (without access to a lawyer, without knowledge for the International Committee of the Red Cross), for indefinite amounts of time, without charge or trial, and subjected to ill-treatment and torture for the purpose of interrogation. Those “black sites” – a shameful collection of legal black holes, where truth, memory and sunlight never shine – were built overseas.

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The reason they were built overseas is because of legality. This is no secret our profession bypassed ethics (albeit successfully, to our greatest dismay and fatal sadness) in the name of a government-led and government-approved definition of security. The Convention Against Torture, adopted by the General Assembly in 1984, holds torture as an absolute prohibition. The reservations emitted by the US Congress during the ratification process in 1992 established a definition that made torture only possible overseas, outside US jurisdiction – physical custody or control of another party. And thus, Donald, if you want to lift the ban on the use of torture on terrorism detainees, you will need partner countries to assist you in reviving a horror that is very much present: 41 men are still held in Guantanamo Bay, after having transited through one of those sites. I am here to tell you that you will not get what you want, at least not from European member-states. See, we have obligations to uphold: we have a Court tasked with trying violations, and an entire supranational Committee which mission is to ensure the enforcement of this Court’s judgments.

In a hearing in that same Court in December 2013, UN Special Rapporteur on human rights while countering terrorism, Ben Emmerson QC, described the CIA Rendition, Detention and Interrogation (RDI) programme as a “vast conspiracy”. It is: the number countries that have assisted the United States illustrate a form of international deference to the war on terror and the damage it spurred, to the detriment of efficacy and human rights. The Parliamentary Assembly of Council of Europe (PACE) has conducted two investigations into states’ collusion with the CIA, one via the rapporteur Dick Marty in 2006, and another via the rapporteur Claudio Fava in 2007. Both yielded reports that represent a seminal work of independent parliamentary scrutiny. In early 2016, the European Parliament closed its investigation, reaching the same conclusion: not only were states aware that this was happening, they chose not to collaborate with investigations, and raised classification issues. All of this works in the Trump administration’s favour. A culture of secrecy largely cultivated under transnational security agreements; his Democratic predecessor’s distaste of judicial scrutiny and accountability; a conflict in Syria that never ends, creating millions of refugees and destabilising the entire region. A celebrity fascist was elected because Americans, on top of being angry, were afraid. Europeans, on top of being afraid, are also angry at what took place in Paris, Brussels, Ankara, and Berlin, to name a few.

Ireland, the United Kingdom, Romania, Poland, Lithuania, Italy, Macedonia did everything from facilitating the CIA jets’ refuel, to building black sites on their own territory. To this day, only Italy has carried out a domestic investigation into its own intelligence services’ collaboration with the CIA, resulting in the conviction of CIA agents in absentia. The case itself is fraught with procedural errors, deliberate smokescreens, and abusive use of state secrets. Poland has been found guilty by the Court, and now finds itself in the position to ensure Al-Nashiri’s trial and sentence. None of those states have disclosed the agreement – called a memorandum of understanding (MoU) – with the Court, presumably to preserve their special relationship to the CIA, invoking the absolute necessity to remain on the US’ good side while they seek to participate in the purported “eradication” of terrorism. All of this, again, works in the US’ favour. Except for this tiny, insignificant, fraction of a detail: the rule of law.

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Now, we know. It’s been a long, painful and traumatic road since the first rumours, investigations, and articles about secret Gulfstream IV jets flying unidentified “detainee combatants” from one secret prison to another first came light. The European Court of Human Rights has issued a judgment that clarifies that, even in the absence of disclosure of those MoUs, there had been enough substantiated and corroborated evidence published in the press and through legal and academic research to make a conclusive finding on a gross violation of human rights law. A report compiled by the Senate Special Committee on Intelligence (SSCI), still classified but with its executive summary released in December 2014, remains an formidable excercise of domestic parliamentary scrutiny. The SSCI report, dubbed the CIA torture report, reveals the location of several black sites, the budget the CIA required to carry out that programme, in addition to recordings of interrogation sessions, legal memos in preparation of the establishment of the policy, and photos obtained through the Freedom of Information Act. The question, at this point, is whether the truth is as objective as it should be, and if its existence can replace accountability.

For all the bragging and boasting about enjoying the infliction of long term and damaging suffering on other human beings, for all the speeches given at Langley on extending covert operations, you have not created anything. You are simply considering lifting a ban on a period of American history that has not seen any closure because of an admission the government had “tortured some folks”. The United States is still in violation of UNCAT for refusing to prosecute officials that have authorized the use of torture. For the lawyers, this has led to successful careers. For the military, “harsh interrogation” is still present in the books. The black sites, meanwhile, enjoy a second life: the building in Temara, Morocco, has been used, once the CIA had left the premises, by the domestic intelligence agency to torture dissidents. Wherever the CIA has visited and stayed, visible scars are identifiable. Wherever the CIA tortured in secret, the impunity is perpetuated. Lifting the ban Obama enforced in 2009 isn’t the hawkish, vicious, cynical, dangerous and violent regime the Electoral College wished into existence. It is a pathetic, weak, ignorant, and self-destructive vision of counter-terrorism.

Torture is not efficient. Torture does not provide reliable intelligence. Torture has never made a country safer. Torture has never facilitated the end to illegitimate political violence. The unlawful detention of hundreds of men, some of them sold to US forces by bounty hunters and acknowledged as having suffered on the basis of false information, testimonies or mistaken identity, has provided ammunition for insurgency, has encouraged the use of imagery for the dissemination of similarly atrocious behaviour, and has stripped the United States and participating countries of any legitimacy in denouncing, and acting against, other states engaging in such horrific operations. It has reawakened the trauma of those same interrogation methods used in Northern Ireland at the height of its own conflict, mentioned in the footnote of a legal memorandum discussing, at length, how much pain can be inflicted on a human being without crossing an admittedly arbitrary threshold. You are not making America great again, Donald. You are simply returning to a very recent place in time when large-scale, international security operations were launched to the detriment of the rights of the victims, circumventing international law and international institutions, in the name of an irrational appetite for vengeance.

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Whatever the domestic framework, if you attempt to hire John Yoo again, will be hindered by the current National Defense Authorization Act (NDAA), through an amendment introduced by Sen. Dianne Feinstein; it will be blocked by the Detainee Treatment Act (DTA), both texts acknowledging the veracity of reports of the CIA’s conduct, and furthering the importance of ECtHR rulings against offending states. But most importantly, torture is an absolute prohibition; a war crime; indefinite detention without charge, the refusal of access to a lawyer, the denial of access to the ICRC, the removal of detainees to a military base, are violations of both humanitarian law and human rights law; several protocols of the Military Commissions Act (2006) violating fair trial rules. Donald, this is simple: the only national security position you are entitled to take in regards to the RDI programme is instructing the Department of Justice to prosecute officials that have created the programme, the private contractors that have devised interrogation methods, the intelligence agents that have supervised it and carried it out, as well as cooperating in every possible way with every request emitted by the ECtHR in order for our organization to respect our own obligations. Anything else would be in violation of international law; and every step of the way, there will be lawyers, legal academics, researchers, and journalists ready to expose the mechanisms you will use, because we know them by now.

You will drown under the weight of lawsuits, and you are already at odds with the medical professionals that had once assisted the 43rd President of the United States. For every government lawyer that will attempt to argue our role, as international human rights lawyers, is illegitimate foreign interference, that we are a fifth column, there will be the survivors of Guantanamo Bay to testify of what they have been through, there will be the families of victims of terrorism that seek fair redress, and there will be judicial oversight of counter-terrorism operations reaffirming that efficiency is a human rights obligation resting upon states. Including the United States. Including you, as the depositary of executive authority.

The only way to rid your administration of those pesky international lawyers such as myself is to comply with international law. There is no way around it. To quote the wonderful Linda Sarsour, a Palestinian-American who marched against you in DC, “I will respect the presidency, but I will not respect this president”. On this note, I bid you good night, Donald, and there is no need to tweet at me at 2 in the morning. 

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Judicial activism and the right to truth: al-Hawsawi and Lithuania

Mustafa al-Hawsawi, 2012

Last month, an extremely important case hearing took place in Strasbourg, at the European Court of Human Rights (ECtHR). It detailed the collusion of the government of Poland with the CIA in creating a secret prison on its territory, in which prisoners were detained, interrogated, tortured, then shipped to the United States on unchartered flights before being detained again at the horrific naval base of Guantanamo Bay. The worst illustration of a lethal EU-US partnership in the so-called War on Terror was finally exposed, after much obstacles were removed. Lack of transparency, hyperclassification, judicial deference, protection of “vital foreign interests”, and the usual disdain for the basic fundamental rights of terror suspects have led to a considerable delay in trying the Guantanamo Bay inmates, but also to broadcast in a court of law the crimes committed by the nation states and their agents. In the fight against terrorism, counter-terrorism is also on trial.

The establishment of CIA black sites on European soil has been a profound source of shame, a delicate diplomatic issue. Yet a comprehensive document dating back to 2006, the Marty Report, commissioned by the European Parliament to investigate and assess the extent of member-states collaborating with the CIA , brought to light how massive the scale of cooperation has been. If the case of Poland has become a textbook situation for collusion –  from paying airport employees in cash to hide departing flights to the US, to refusing access to classified documentation to defence lawyers – it is important to keep in mind it is not an isolated situation. This week, Lithuania has managed to score a victory in its judicial battle within its own domestic courts, without the help of Strasbourg, in a case that highlights two fundamental difficulties and hurdles in the prosecution of the CIA torture program: not only had the Lithuanian prosecutor refused, twice,  to open an investigation into the prison located in the small village of Antaviliai, but all the information used to re-open the case was not governmental documentation at all – it was journalistic investigation made public that had allowed to provide new information.

Mustafa Al-Hawsawi is a Saudi national, currently detained in Guantanamo Bay as a high value detainee and faces trial by a military commission for his role as a financial backer of the 9/11 attack. He was captured in 2003 in Rawalpindi, Pakistan. According to him, he was then transferred to Lithuania where he was handed to US authorities, subjected to torture and disappeared – he would have remained in the secret prison for two whole years, between 2004 and 2006. It’s only then, in September 2006, that US officials formally acknowledged his detention at Guantanamo Bay. As a high-value detainee, Al-Hawsawi was at a much higher risk of torture than any other inmate, according to a report by the ICRC; later, Ben Emmerson, the UN Special Rapporteur on human rights while countering terrorism – who filed as a third party in the Abu Zubaydah v Poland case – reported, in 2013, that the situation of CIA black sites and the practice of extraordinary rendition for terror suspects involved 54 nation states total, from Lithuania to Morocco and from Poland to Thailand.

The forest on the road from Vilnius to Antaviliai, Lithuania

Thanks to investigative journalist Jason Leopold, we know much more about the arrest, disappearance, detention and torture of Abu Zubaydah than we could have ever hope to find if we had followed the often blocked, often stonewalled round of a traditional legal investigation. In the case of Al-Hawsawi, the road was paved with ill-intentions, over a five-year period: in 2009, an initial investigation into the case was made thanks to a report by ABC news, yet charges were dropped seemingly due to lack of evidence. Back then, Defense Minister Rasa Junkeviciene had released this statement:

“Prosecutors need facts. This is how I understand their decision. One shouldn’t forget that this is not only a Lithuanian issue, and if other states fail to give necessary information, or people who know something also don’t want to give information, then in fact it’s pretty hard to say something.”

Although this sounds logical and a fair assessment of how charges could be dropped in a case of serious violations of international law, this highlights the difficulty to access information when so much redaction, red tape or complete classification of material can not be accessible through the classic and regular means of transfer of information in a transnational case. It was obvious that due to the lack of compliance displayed by the United States at the time, further investigation into the lost two years of Al-Hawsawi’s life would lead to empty boxes, unaccessible documentation, or even possibly a request not to look further into this case. However, thanks to the ABC News report, the Lithuanian Parliament created a committee tasked with investigating the alleged CIA black site. And they found one. In fact, they found two. But those were empty, and there was absolutely no written trace, documentation, or evidence made available to them that any prisoners under any authority had been brought to those sites.

Former president Valdus Adamkus and former prime minister Algirdas Brazauskas, the executive authority in place at the time, denied any allegations. The investigation, which came to a screeching halt in 2011, had however unearthed some pretty disturbing evidence, that, linked to other similar cases of detention and torture at CIA black sites, could determine a pretty serious pattern of corrupting local officials, building sites in remote rural areas, and circumventing airport rules for flights to depart and land unsuspected. According to the Prime Minister, who took part in the committee:

The committee also said that five airplanes “linked to the CIA” landed in Vilnius and Palanga airports from 2002-2005, and on at least two occasions border procedures were bypassed with the help of high-ranking Lithuanian State Security officials.

As I wrote in December following the Abu Zubaydah hearing, which I attended, the facts of the case soberly enunciated by the lead counsel, Ms. Singh, illustrated one thing – that it would have been impossible for the CIA to have operated in Poland without national officials knowing about the site. In fact, as it was said then – “not only should Poland know, but Poland did know.” Ms. Singh recounts the different steps taken into the detention and rendition of Abu Zubaydah:

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.

al-Hawsawi at his arraignment in 2008. (c) Janet Hamlin

If Poland appeared to have maintained a political facade since the case was first brought to its attention in 2008, things were not sailing smooth with Lithuania: the Foreign Minister resigned in 2010 over the black site investigation. Back then, President Grybauskaite had publicly acknowledged she knew about the presence of CIA black sites in the country, but following the Parliament report lacking information regarding prisoners, their identity, and travel dates to the prison, Usackas, then Foreign Minister, strongly dismissed all allegations that any torture site, CIA-operated or otherwise, had detained prisoners. Grybauskaite said she had lost trust in the members of her government at the time, and asked her Prime Minister to dismiss Usackas. Usackas, in turn, resigned from his position.

In 2011, Amnesty International obtained information that was relevant to the case and urged Lithuania to re-open an investigation into the secret prison. The claim made during the Abu Zubaydah hearing that an investigation into collaboration with the CIA was “politically inconvenient” echoes the case of Lithuania. It appears that the Parliament report should have consisted in enough evidence to either admit or dismiss the case in court. Since the report could neither assess the presence of prisoners nor the knowledge of executive officials at the time, counsel for Al-Hawsawi relied on investigative missions and victims’ testimonies to provide new information to the Court. The admissibility of this evidence was contested by the Prosecutor. In Poland, lawyers for the government alleged that media publicity and “interference” (sic) with the investigation had made it difficult to carry on in what they believe would be a consistent and objective manner; that NGOs were pressing an agenda on Poland to prosecute human rights violations they weren’t sure existed. The issue of transparency and the obtention of material outside the realm of the legislative inquiry or the executive’s agreement to disclosure is yet another pattern in the prosecution of CIA crimes. Disclosures, both prosecutors argued, are premature, and affect the course of the inquiry by being influential.

They’re influential because they expose the failure of the authority to comply with the judicial inquiry.

In the case of Lithuania, however, the prosecution failed short of upholding the important role of journalistic investigation and obtention of victims in the care of human rights-focused organisations. Says Joe Margulies, a professor of law at Northwestern and counsel for one of the victims, said in 2011:

“[t]he Prosecutor is trying to deflect blame for the failure of his investigation onto NGOs and the media. It’s ironic that an official investigation into a secret torture facility should claim to be thwarted because the media is insufficiently transparent.”

In September of last year, things moved at an incredibly fast pace. Basing their evidence on publicly available information such as EU Parliament reports, flight data gathered by NGOs Reprieve and REDRESS, the counsels submitted a new complaint calling for a new investigation into the detention of Al-Hawsawi. The complaint explained that a thorough and effective investigation had to be made to “secure evidence, seek clarification, seek urgent preservation and disclosure of all relevant evidence, and identify all officials involved in the alleged violations with a view of ensuring they are prosecuted.”

Ben Emmerson, QC

The importance and effect of publicly available information and thorough disclosure could not be stressed enough in this case. The similar that has emerged against Poland will pave the way for those that will surely follow. Ben Emmerson had re-affirmed his commitment to the right to truth as a universal human right and a cornerstone of the legal commitments binding on all member-states not just at the Council of Europe, but at the United Nations. From our piece on Abu-Zubaydah, again:

“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 month following the filing, the Prosecutor informed both NGOs that he refused to launch an investigation. They immediately appealed his decision. The EU Parliament in Strasbourg adopted a resolution on October 10, 2013 urging Lithuania to re-open an investigation into CIA black sites, in regards to 4 cases already pending at the ECtHR, and a fifth application made in a domestic court in Italy:

whereas Parliament has condemned the US-led CIA rendition and secret detention programmes involving multiple human rights violations, including unlawful and arbitrary detention, torture and other ill-treatment, violations of the non-refoulement principle, and enforced disappearance through the use of European airspace and territory by the CIA; whereas Parliament has repeatedly called for full investigations into the collaboration of national governments and agencies with the CIA programmes;

whereas the Lithuanian authorities have reiterated their commitment to reopening the criminal investigation into Lithuania’s involvement in the CIA programme if new elements emerge, but still have not done so;

Reiterates its call on those Member States which have not fulfilled their positive obligation to conduct independent and effective inquiries to investigate human rights violations, taking into account all the new evidence that has come to light, and to disclose all necessary information on all suspect planes associated with the CIA and their territory; calls in particular on the Member States to investigate whether operations have taken place whereby people have been held under the CIA programme in secret facilities on their territory; calls on the Member States concerned (France, Italy, Lithuania, Poland, Romania and Sweden) to respond to the letters sent by the UN Special Procedures;

In this staunchly strong-worded resolution, which urges member states to launch thorough and detailed investigations from government records to phone records, and even forensic investigations at the prison sites themselves, the EU Parliament follows a trend of transparency regarding the collaboration with CIA of EU member states, and has called on every member states not to just comply with recommendations and requests of the ECtHR, but also those made at the UN. The practice of rendition and black sites by the CIA is not an American concern; it is a worldwide concern, that must be addressed by all member states.
In spite of this call, the appeal was just as quickly dismissed.  Yet another one was made, in a remarkable show of consistency and perseverance in the pursuit of truth and justice – and this time, the Vilnius Regional Court upheld the demand for an investigation, and the case is now re-opened. The Regional Court claimed that previous dismissal by the Prosecutor General had been “groundless”.  Julia Hall, Amnesty International’s expert on counter-terrorism and human rights, was justifiably and understandably delighted with the news. The persistence of the counsel for Al-Hawsawi must be commanded. In a statement released shortly following the decision of the Vilnius Regional Court,
“The Lithuanian government and Prosecutor General must now open a full and effective investigation into Mustafa al-Hawsawi’s claims and ensure that any other individuals who have alleged that they were held in secret CIA detention there are afforded the same right.”
As of today, investigative journalist Jason Leopold, whose thorough body of work includes the obtention and publication of the diaries of Abu-Zubaydah, clearly detailing his arrest, detention, and torture, has filed a Freedom of Information Act (FOIA) lawsuit to obtain a copy of the Senate Intelligence Committee’s torture report and CIA activities, chaired by Senator Dianne Feinstein. This is the exact same report that Ben Emmerson asked to be released in this UN report from March 1, 2013; a situation he called “a pressing concern”.  After Leopold’s amended claim, a response came, a peculiar and unusual one: his request was denied; the Senator has “full control” over the report and its hypothetical release. The Court argued it had no jurisdiction over Leopold’s claim. The Senate’s torture report will not be released anytime soon.

Al-Hawsawi is still detained in Guantanamo. NGO REDRESS, represented pro-bono in the case, filed a motion on October 17, 2013 to submit against the classification regime blocking them from accepting complaints to third countries, hindering the investigations in the case, which amounts to a violation of his right to a fair trial. On November 27, 2013, the military judge denied the motion.