France toes a thin line on Salah Abdeslam’s detention

Salah Abdeslam, captured on video surveillance inside the prison, 2017.

Disclaimer: the author is a member of 13Onze15, the association of victims of the November 13, 2015 terror attack in France, for which Salah Abdeslam is currently detained. 

France had been doing so well.

Following the simultaneous attacks in November 13 2015 that killed 130 people in the heart of the country on a Friday night, France declared a state of emergency that only ended this week, after almost 2 years. Said state of emergency, based on a law from 1955, led to a declaration of intent to derogate from the European Convention on Human Rights (ECHR) under Article 15. Since then, counter-terrorism measures enacted by France in reaction to the attacks, and those that followed, were scrutinized to determine whether they amounted to a possible derogating right. Little has been written about terror detention.

Salah Abdeslam is the only perpetrator of the attacks to be in detention and to be able to face trial. Six judges are currently investigating the case. Other members of the organization are said to have died in Syria, possibly in drone strikes; Abdeslam, who didn’t detonate his suicide vest, fled to Belgium. A significant portion of the investigation rests on what prosecutors hope to find through his testimony. While there is no consensus on the exact role, determining or not, he would have played in the attack, he will likely be the only one on the stand for those charges, to face victims and answer them. A lot rests on his shoulders.

But as the opening date of the trial approaches, his mental state has been severely deteriorating due to his conditions of detention. Last year, he filed to ease his surveillance, a request that the High Court refused to access. Has France tested the limits of the derogation and Article 5 in detaining Abdeslam in prolonged solitary confinement? Are his human rights violated, a question many refuse to ask given the profile and influence of the attacks for which he is detained?

BACKGROUND OF DETENTION

Abdeslam is portrayed as a key element of an investigation many has claimed is stalling. How crucial role was in the plot, though, there is no way to know. Upon his transfer from Belgium to France, Abdeslam communicated through his lawyer that he intended to cooperate with French authorities. His arrival and subsequent detention at Fleury-Merogis was immediately met with a hearing with some of the six judges instructing the case. Not only has he refused to answer questions, but he has since walled himself into silence. Criminal defense attorneys will correctly point that this is his right. It however took his French representation, then Me. Frank Breton, by surprise. This was not the planned strategy.

Then began a game of chase that could very well lead to a breach of Abdeslam’s rights. As planned by counter terrorism legislation at the time of his arrest in March 2016, a period of solitary confinement was recommended for radicalised prisoners and preserving instruction. Abdeslam had already been interrogated by Belgian authorities, which then in turn shared the information with their French counterparts. At the time, it was unclear whether Abdeslam was aware he was the only suspect that could be reasonably arrested and detained on EU soil as opposed to captured or more likely killed overseas. His lawyer in Belgium, Sven Mary, had famously described his client as a “petit con” – a “wanker”, if you allow such language – “with the intelligence of an ashtray”, hereby inferring he was not the mastermind French authorities were looking for. He was unlikely to had either fabricated the explosive devices, recruited other bombers, let alone devised the plan as a ring leader. But Abdeslam was the one who fled to Belgium, leading police all over Europe in his pursuit to an arguably wide network of recruits guided from Syria, accessing prohibited firearms, and traveling between England, Germany, Belgium and France for the site of their new attack.

Salah Abdeslam, on videosurveillance on a street in Brussels, 2014

Abdeslam’s initial confinement itself is not the contentious issue. The frustration caused by his stubborn silence in court moved from prosecution to victims to his own attorneys, who had come to realise by then no judicial cooperation could ever lead to a more lenient sentence. Given the scope of the attack, the shock it caused in the country and the constant prolongation of a state of emergency, the detainee was the only individual in custody capable of answering questions that extended far beyond the issue of criminal process. Days later, 32 died in an explosion in Brussels’ national airport. The first concern raised by intelligence services continent-wide was whether this specific terror cell was linked to those responsible for the attacks on Paris, for which Abdeslam had only been in custody for four days. The conditions would always been tightening as the attacks grabbed the heart of Europe.

CONDITIONS OF DETENTION

Salah Abdeslam, now 28 years old, is held 22 hours a day in solitary confinement. He is allowed one hour outside, alone – he is walking outside the usual hours of detainees at the prison; he is also granted access to the sports equipment, as long as no other detainee is using it at the same time. This treatment was falsely depicted in the press as Abdeslam benefiting from “his own gym”, a far cry from the reality of total isolation.

Then-attorney general Jean-Jacques Urvoas placed Abdeslam under constant surveillance in his cell by an ordinance filed on June 9, 2016, applicable for three months and renewable. The provisions for this were then allowed on June 21, 2016 when the state of emergency was extended for another 6 months. At the time, Urvoas argued of Abdeslam’s central role in the Paris plot, his connection to a Belgium network for which he was interrogated by Belgian authorities, and his lack of cooperation with the investigation. Three weeks later, a truck driver deliberately ran into a busy boardwalk in Nice during the Bastille day celebrations, and killed 86 people. To this day, investigators, either law enforcement or intelligence, can’t confirm a link between ISIS and the truck driver, who died shot by police. It however entrenched the permanence of the state of emergency and the need to keep Abdeslam on, and talking, at all times.

In an open letter published in the weekly magazine Le Nouvel Observateur, Abdeslam’s former counsel, Me Breton, explains that Urvoas’ imposition of surveillance is a violation of the detainee’s human rights, specifically the right to privacy under Article 8 ECHR. At the time, a member of Parliament, Thierry Solere, had visited the prison and had had unexpected access to the videotapes, commenting on them in the press. Breton replied (translation mine) that he called for the respect of privacy “despite the charges of extreme gravity” and mentioned that his client felt “tracked”, “spied upon”. The sensationalism surrounding the press coverage of his surveillance reveals mostly mundane activities interspersed with moments of lucidity.

Reports of his mental health have shown a young man with a dwindling grasp on reality, becoming increasingly violent, aggressive towards whomever he perceives to be on the other side of those cameras installed in his cell. About to face trial for the police shooting that led to his arrest in Brussels, Abdeslam has unexpectedly petitioned a judge himself, willing to attend. He will be transferred to Belgium under a procedure not yet set (at the time of writing), likely under high security. Whether he will be present and stand at his trial in France remains to be seen. Abdeslam is kept in such conditions for an extremely flexible and volatile reason: that of the threat ISIS poses to France and the EU on a larger scale, and whether possible communications he could present that would assist the investigation. The latter has been contested and will remain contestable if his mental health deteriorates. Assuming Abdeslam has ever been a crucial intelligence asset, it is unlikely he will remain one without his faculties.

Mid-June, Abdeslam writes to one of his cousins in Belgium: the letter will be listed as evidence two weeks later, a once again rare procedure that judges nonetheless exercised, referring to it as a “manifestation of truth”. The point is to gain access to the recesses of Abdeslam’s mind, a means to bypass his silence. While detainees’ correspondence isn’t protected, this notes a constant insistence that somewhere, somehow, actionable information will seep out, in his behaviour, his gestures, or his words. Little is said in the letter, besides reaffirming commitment to religious duties. Psychological assessments put forward the risk of suicide, a decision that has the contradictory consequence to both develop concerns and increase surveillance.

ECHR jurisprudence has been quite keen not to diverge too much from member states’ assessments of the threats to their national security even when it touches Article 5 or Article 8. It is likely any challenge to the Court would rest on the Conseil d’Etat’s argument that the “exceptional circumstances” of his arrest and the nature of the crimes for which he is accused justifies this detention, prolonged only after a few hearings. Salah Abdeslam is twice a prisoner: in his cell and of a state of emergency that self-perpetuated for almost two years. As such, the Commission’s long held view that solitary confinement for the purposes of addressing a public threat would be well within the larger context of the detention. Allowed to walk, allowed to work out, Abdeslam is not so much removed from the rest of the world as he is confined to himself. It’s the recording Abdeslam considers to be most intrusive, not the confinement, although solitary detention, especially before the opening of the trial and over such a long period, is detrimental to the mental well-being of the detainee.

Research conducted by independent NGOs and brought forward in a report by the former United Nations Special Rapporteur (UNSR) on torture, Juan Mendez, has concluded that prolonged solitary confinement amounted to ill-treatment and could amount to torture due to the psychological and psychiatric effect on the mind. The threshold for indefinite confinement was fixed at 15 days. However, in the case of terror detention, solitary has been in fact recommended in order to isolate the suspect from the rest of the incarcerated population, and this as a preventive measure. Yet this is not a regular case with reliable precedent: the political implications are perhaps even more significant than in previous terror detention. After all, shortly after the attacks, President Hollande referred to a “state of war”. This doesn’t trigger any change in the applicability of the Convention however. French authorities meet the criteria thanks to review and the accessibility of the Conseil d’Etat. The isolation is therefore not indefinite, whilst prolonged.

Isolation unit in Fleury-Merogis

Following the notice to the Council of Europe of possibility of derogation to the Convention under Article 15, there was much speculation that Article 5 would be the first to be tested, especially in light of a large, now controversial raid taking place in the Parisian suburb of Saint Denis in the days after the attack. Since then, over 500 arrests have been conducted nationwide, but no claim of infringement of Article 5 has been raised. The review of his conditions of detention, an element permitting judicial review in line with human rights recommendations, is working: in the spring of 2017, following a meeting between magistrates and prison staff, Abdeslam saw the separation panel of his visiting room removed so he could better communicate with his family; the texture of his cell window has also been changed so he could see (literally, might I add) the light of day. This serves two purposes: one, to reflect that Abdeslam has now been in detention for 20 months without a significant progress in the investigation related to his role; two, there appears to be acknowledgement that no information will emerge for as long as the only witness alive is kept in conditions that defy human rights standards. In Van der Graaf v Netherlands, the Court did not find a possible substantiation of an article 3 violation: the application was declared inadmissible. The legal basis for the surveillance was well-founded and the threshold for a finding of ill-treatment remains high; the applicant’s mental health was not at enough risk to warrant adjudication by the Strasbourg Court. On Article 8, however, the judges recognized an interference, but one justified by the exceptional circumstances of the crimes for which the applicant was detained.

France has not breached the ECHR with its detention of Abdeslam; while unprecedented, the penal code provisions on his detention date back to 2011, four years before the attacks and the state of emergency; his surveillance is subject to review; he’s exercised his right to access domestic jurisdictions. It’s unlikely that, according to ECtHR case-law, France would have exceeded an admittedly high threshold. The review of 23 months and 3 weeks of emergency would not find a breach of the ECHR, regardless of Abdeslam’s receding mental health. The gravity of the crime and the outstanding death toll of the attacks in which he was supposed to also die will never be exceeded by the duration of his detention. France is toeing the line of prolonged solitary and permanent surveillance with regular review and access to mental health counseling. Judicial authorities are regularly attempting to interview Abdeslam, in vain, but giving him the possibility to end the circumstances that find him in this narrow, walled-in space. Both prosecution and defense find themselves trapped in a vicious circle in which both sides require relinquishment on the part of the other. There can only be hope that as France finds resilience, its body politic finds within itself the power to adjudicate without further penal measures with the sole means to retaliate.

 

 

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Against politeness

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Photo by Zach D. Roberts for Nation of Change.

I have been made aware of my European identity early, and often. I was born in France, walked my first steps in Ireland, survived my growing pains in Northern Ireland, was educated in Germany, entered adulthood in Switzerland. Every one of those places is determined and defined by war, either present or past, the scars evident for a naked eye to see. Belgium, the Netherlands, Italy, Spain, the Balkans, Austria, Poland, all those bright blue lakes of my childhood and the snow-tipped cold mountain ranges have carried ghosts, whispers and whimpers of the deported, the exterminated, the shellshocked, the wounded of two world wars, at the very least. When a 20 year old student from the University of Nevada called Peter Cvjenatovic says he attended the “Unite the Right” rally in Charlottesville, VA this weekend because the “European culture” means terrorizing the local population with torches and swastikas, brown shirts and black boots is his right, my stomach churned; I blinked at the photo of his comb-over, his facial traits distorted by fanaticism as he screamed “Blood and Soil” on American ground, and the image of a young Otto Van Wächter came to mind.

It’s a nightmare, a nightmare from which we are told not to wake up; it would be an “alternative” reality, a legitimate product of economic disenfranchisement, a “fringe” not present or represented in the current Trump administration, a “rise” contrary to the decades-spanning files of the FBI’s counter extremism task force. It is none of those things, and this piece aims at explaining two things: the issue of free speech absolutism in times of violent politics, and the necessity to call to action without concession.

Free speech absolutism in the age of Trump

 One of the glaring differences in constitutional rights between the US and European member-states – at range, for the purposes of this argument, states party to the ECHR – is the interpretation of the right to free speech, in freedom of expression, opinion, and information. Contained in the First Amendment to the Constitution in the US and Article 10 of the ECHR, the vast difference is of a historical nature, and can vary from state to state in Europe. When it comes to ban on political parties, memorabilia, symbols, or speech, the United States applies a blanket to free speech with a narrow hate speech caveat. In the case of France, a debate regularly arises on the criminality of denying the existence of the Shoah; in Germany, Nazi memorabilia and even performing the Hitler salute in public are banned. Those, to the outside eye, seem necessary given the specific political context inherent to those two countries. In the United States, it appears that events taking place during the 2016 electoral campaign and more recently in Charlottesville, VA have raised the issue of a narrowing, culling, and roughing up the edges of absolutism.

It started when the American Civil Liberties Union (ACLU) represented the leaders of the “Unite The Right” rally in Charlottesville, after the mayor refused them a permit to march. And march they did: the night before the rally itself, the crowd descended on the University of Virginia (UVA) campus in Charlottesville with tiki torches, singing and chanting slogans while marching in pants and shirts, at night, startling the local population with imagery much too familiar to the South and eerily cognizant of its effect on the western world at large. Many felt the ACLU, an organization crucial to the respect of civil rights in the country and generally affiliated with the organized political left, had let them down. The ACLU had been fundraising since the January transition on a platform of opposing the Trump administration at every turn. In that, they delivered: they took the refugee ban to court; they protected journalists targeted by the president’s desire to control the narrative; they were front and center against efforts to repeal the Affordable Care Act. Representing a hate-filled, extremist movement’s right to protest was perceived as a betrayal. Politically, it may be. But the ACLU is a legal organization based on the equal and fair application of constitutional rights; they are not to blame, absolutism is.

There are plenty of arguments in favor of absolutism. They will all highlight that limits to free speech and freedom of the press would yield to state discretion, to judicial bias, to political suppression. They will misquote Voltaire and discern from the old English law that civil rights are not here to be restricted, and that civility will do part with the belief that all positions are equal. They will argue that it’s necessary for expression to take place so rebuttal can also be present and public, and that pushing extremist views further into darkness legitimizes their claim to oppression. In this specific example, they will say that the history specific to mid-20th century Central Europe and French occupation are not the same as the legacy of the Civil War in the United States. Meanwhile, statues of confederate leaders are tumbled down all across the South, and monuments are being used as meeting points for white supremacists. It is very possible to then argue that the legacy of the Civil War has in fact not been dealt with; that the criminal justice system in the United States continues to disproportionality punish black and ethnic minorities; that police violence is unabated and unrestricted; that affirmative action and voting rights are under attack. Is this a reason to curtail free speech? Is extending hate speech territory a violation of free speech? Should the ACLU not accept First Amendment complaints from white supremacist groups?

Legally, the ACLU is being consistent. This is the interpretation of the First Amendment as upheld by the Supreme Court. The aforementioned defense of absolutism makes legitimate points that have been demonstrated as correct: there is a long-standing trail of political bias in freedom of expression. One recent element comes to mind, and that is a much cited court case against former presidential candidate Marine Le Pen being booted off court after filing a defamation claim, the judge outlining in his decision that what is true can not be defamatory in nature: it is therefore legal to refer to Marine Le Pen as a fascist in the course of political debate. This did not prove that hate speech laws in France criminalizing historically verified facts or the ban on neo-nazi parties in Germany are a violation of a fundamental right. Speech is not, as much as one would like it to be, a fundamental right. It is not cited as an absolute because its very nature can pose a threat. What we consider when curtailing free speech is the imminence and reality of the threat said speech poses, and in that states do in fact exercise quite large discretion in determination and definition. Political positions are threatening if they dissent or attack the powers that be; religious beliefs can be seen as isolating and discriminatory. If we do consider human rights to be universal in both nature and scope, we must define them by what they are not. If we are to believe civil rights should be accessed by all, limit them to what they do not tolerate. If political rights are to be exercised safely and in the interest of the collective, they cannot be extended to beliefs that in nature are threatening and lethal. When it comes to the ghosts of slavery and Nazism, ghosts that are very much palpable and cyclically return to haunt the West, there is no debate. Refusing to tolerate such positions is not a question of specific party membership, or political affiliation. Refusing racial supremacy goes far beyond a flag, a border, or a constitution. It is committing to human rights. We should, and must, draw a line.

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Photo by Zach D. Roberts for Nation of Change.

Polarizing attitudes and the Free Ride Theory

 A rose may be a rose by any other name, but an old professor of mine coined the following concept as the Free Ride Theory, and it applies. The dominant narrative, in both glossed-over history reenactments or modern cinematography is that most French people were in the Resistance, the Vichy supporters were passive opportunists, the vote to grant Marshal Pétain full powers all but ignored. This was not the case. A small portion of the population was, in fact, supporting the Vichy regime; held anti-Semitic views; called for the end of Front Populaire policies; believed the Reich could restore order and glory to the fading empire. Another small faction found itself on the other side of the spectrum: they joined the Résistance, engaged in sabotage, conducted counter-intelligence missions, provided safe passage to England, dragged compromised comrades behind enemy lines. The large, vast majority was neither. To support Pétain was to support beliefs that could be unpalatable for many; to join the Résistance was to take incalculable risks. Activism was lethal, and for many, the decision was made for them: communists, Jews, gays, pacifists, artists, they would have died regardless. They were young, had no families to feed, and so many found themselves with the need to follow in exile, or simply rejected resistance because they rejected conflict.

When Paris was liberated in August 1944 and General De Gaulle marched on the Champs-Elysees, people rejoiced, cheered, embraced the Allied troops, whether they had been pro-actively engaged in their victory or had hidden in their rooms waiting for the war to end. The latter, according to my professor, benefited from the actions of a few: they were freed without having seen concentration camps, without having lost a limb or a relative. They rejoiced despite not sacrificing anything in the battle. It was, to him, the free ride all passengers on the merry-go-round win if one child grabs the prize. One fights for the many – and the many claim the same prize as the one. It’s the rule of activism: not everyone can contribute to the resistance as much as the other, but all must win. It is a basic fact of socio-political frameworks, and it must be understood that not every citizen was going to be physically present in Charlottesville, VA over that fated weekend during which fundamental values were tested in an almost unprecedented fashion.

But there is something to be said about commitment to those fundamental values, and to this extremely recent need not to polarize, not to draw lines, not to erect barricades, to compromise. Barack Obama was praised as a Democrat president for reaching across the aisle when most had elected him on a quite progressive platform. This created resentment, bitterness, a feeling of betrayal on the less centrist side of the Democratic party. What’s fundamental is however, by definition, not a question of bipartisanship. It is about collective identity: it is not about local policies or electoral cycles. Those values are often written (or described) in constitutional texts. As such, the United States will hold its First Amendment as a fundamental that cannot be taken away from any American. It however does not say that other American must consider this particular exercise of speech as of equal value to, say, the fight for universal health care, or a Gawker article.

Everywhere, human rights are under attack. They were held as a breakdown in national identity during the Brexit referendum. They were defined as responsible for the sharp divide between the presidential candidates in France. They are at the heart of a 5 year-long civil war in Syria. They are denied to millions of refugees in makeshift, sub-par refugee camps in Australia. Under the guise of civility and tolerance, we are accepting their violation as a legitimate political discourse. We are refraining from resisting and encouraging others not to protest them, we are classifying them as a fringe, a phase, a temporary ill to befell our otherwise civilized, evolved, democratic society. They are none of those things and history has proven that by never taking a stand, or by assuming there is a reasonable expectation of equal treatment and republican commitment, we will fail. Later, the fabric of society will be unraveled, slowly undone, until the law no longer protects the vulnerable and the body politic belongs to a violent few.

Now is the time for a strong moral, ethical and legal line to hold against what have constituted the backbone of modern human rights law as we know it. There is no equivalency to be drawn and no position to “agree to disagree” when fundamental rights are so directly at stake and leaders of the movement discuss creating an “ethnostate”. For all the signs that dystopian pop culture has created in the last few years and the success it’s generated – from Black Mirror to The Handmaid’s Tale – the difficulty to translate this generation’s anxieties and fears for the future has not made it onto the streets nor has it formed a substantial support of the recent warning issued by Human Rights Council treaty bodies. An innate and otherwise legitimate denial of violence in any shape or form from centrist corners has yielded passivity, an apathy, lulling vast portions of the population into a false sense of security. Those movements are not “fringe”; they are not “lone extremists”; they are an armed militia, and they have long claimed casualties. For 74% of the attacks committed on US soil to be attributed to extremists in the last 9 years, it is long, long time to show solidarity in disagreement and initiate false parallels. We are who we stand up against.

The case for re-opening the Gibson Inquiry

“They were accusing me of fighting with Bin Laden in the battle of Tora Bora; of being in charge of weapons stores; of being a terrorist recruiter – though I’d only been in Afghanistan for a few weeks. I start to try to talk but everybody is just shouting and screaming around me. Then suddenly I feel it – douff – this American guy grabs me by the head, and he slams it backwards against the wall. In my mind I think I must try to save my head so I tried to bring it forwards, but as soon as I do he grabs it again and bashes it: douff, then back again, douff, douff, douff.”

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In a interview with the Daily Mail published on December 12, 2015, Shaker Aamer reenacts being hogtied during interrogations at Bagram Air Base, Afghanistan.

Shaker Aamer may be one of the most notorious of Guantanamo detainees, imprisoned on a naval base that once housed more than 700 “enemy combatants” in the so-called war on terror. The ordeal he suffered at the hands of US interrogators during 13 years of detention, as a British national, will not be the subject of a legal challenge against the United Kingdom he accuses of collaborating with his captors: “I do not want to prosecute anybody. I do not want anybody to be asked about what his role [was] in the past. I just want people to tell the truth (…) I don’t believe the court will bring justice because of what happened in the past.

Although we seem to know quite more about him than we do about other prisoners, there is a still a lot that remains unknown, mostly the treatment to which he has been subjected. An independent psychiatric evaluation ordered by his lawyers in late 2013 and released in early 2014 paints a picture of non-therapeutic medical administration, force-feeding, repeated beatings, and submission to the infamous “enhanced interrogation techniques”, or EITs, investigated by the US Senate’s intelligence committee.

Shaker Aamer is not the only victim of British collusion in the CIA’s rendition, detention and interrogation (RDI) program. Belhaj, a dissident who fled Gaddafi’s Libya, was flown back and thrown into the jails were he was submitted to torture, courtesy of the MI-6. Several other detainees recall being transferred to Guantanamo via the base in Diego Garcia, a British overseas territory. Shaker’s prolonged detention – he was cleared for release twice, in 2008 under Bush and in 2009 under Obama, only to see British soil in October 30, 2015 – gained political traction and mass outrage thanks to media coverage and a strong push in Parliament. For a decade, the UK government has replied to calls for information with the same line: that they had sought assurances from the US government that the last remaining British national was receiving fair treatment, and that any conditions of release, if it was to take place, would be solely a matter for US authorities. For a long while, campaigners for Shaker thought he would die in Cuba, without charges, without a trial, and submitted to abject treatment.

Shaker Aamer survived, and is now reunited with his wife, three sons, and daughter. It is a testament to his resilience that he is capable of recalling what he was forced to endure, and feels ready to speak. Many, including former Scottish first minister Alex Salmond, called for former Prime Minister Tony Blair and his former Foreign Secretary Jack Straw to answer questions on Aamer’s detention and continued collaboration with US authorities under the cloak of the “special relationship” that has come to signify gross human rights violations; it is absolutely necessary that the truth emerges. This would not, however, be the first attempt. The Detainee Inquiry, also referred to as the Gibson inquiry, shelved in 2012, released an incomplete report in December 2013 that left many questions unanswered, while raising brand new ones that some feared would never be addressed. The document isn’t as unnecessary and useless as its harshest critics claim. While not shedding light on many areas touching on intelligence-sharing and the modus operandi of British security services in their relationship with American counterparts, it clearly identifies key issues. 

Shaker Aamer’s release, his accusations against the British government, against Tony Blair, and the security services are an opportunity to open an inquiry – not just on Aamer’s detention, but on collaboration in the RDI program as a whole. The momentum is one not to be missed: in addition to Shaker’s release, it has been a year since the US Senate (SSCI) released the executive summary of its own investigation of the CIA torture program; the European Parliament, through a resolution passed in February 2015, has also launched a third inquiry into EU member states’ participation, and accountability systems, in the 8 year long program that claimed many lives and remains a kafkaesque nightmare to this day. It should therefore not be an insurmountable obstacle for British officials: the blueprint already exists.

“We tortured some folks”: A question of truth

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Obama, during a White House press conference on August 1st, 2014: “When we engaged in some of these enhanced interrogation techniques, techniques and that I believe and I think any fair minded person would believe were torture, we crossed a line. And that needs to be understood and accepted.”

 

The Convention Against Torture specifically provides mechanisms of accountability at domestic and international level; most importantly, it makes it an obligation to investigate, prosecute and sentence perpetrators of what is considered an absolute prohibition. Obama’s 2014 speech and that saddening line, “we tortured some folks”, urging the general public to make political amends but move on beyond a previous administration having simply erred in pushing interrogation to the brink of torture, is not enough. It is not satisfying the legal standard. It is not satisfying in terms of moral responsibility. It is not looking at the ethics of the Yoo and Bybee memos. As national organizations engaged in a years-long battle to face their own collaboration, as the APA did, finally passing a motion this summer to ban its members’ participation in interrogations conducted by the CIA and/or the Pentagon, there is simply silence at the highest level of the executive.

There is no US exceptionalism. Everywhere, a blanket denial is applied to any attempt to investigate CIA rendition and the torture of terrorism suspects worldwide. Chastised by the European Court of Human Rights in a July 2014 judgement for negative inference, Poland continues to deny it has ever been complicit in the Stare Kiejkuty black site that once covered up the detention and torture of at least Al-Nashiri and Abu Zubaydah. Ireland, which would have let the CIA’s Gulfstream IV jets land at Shannon Airport for refuel, has arrested two of its TDs (members of Parliament) for trespassing as they investigated. Romanian authorities have also denied knowledge of CIA activities despite Bright Light being located in the basement of Bucharest’s City Hall. The second EU report on collaboration in rendition, compiled by rapporteur Claudio Fava in 2007, lists the names of heads of states and defense secretaries who refused to testify before him in the course of his inquiry, citing national security exemptions. The latest hearing led by the European Parliament’s committee investigating rendition has also recited a long list of states and their officials refusing to collaborate or continuing the now well-rehearsed line that the CIA would have operated for years in at least 14 European member states without anyone’s knowledge.

The battle must continue; the right to truth must be achieved, and if judicial activism seems to be on the side of some inquests – for instance, the Al-Hawsawi case in Lithuania – it’s representative instances in democracies that most often push against the executive Glomar responses and insist on transparency. In the UK, the Joint Committee on Human Rights conducted a public hearing in March 2014 questioning the little mechanisms of accountability and transparency in war on terror, revealing most MPs do not possess the necessary security clearance to access documents related to the activities of intelligence agencies. In France, however, the push was external – through the lawsuit of two former Guantanamo detainees of dual French and Moroccan citizenship seeking reparations for their treatment before French courts. The proceedings long stalled due to French judicial authorities showing reluctance to demand cooperation from US officials, but eventually summoned the former Guantanamo chief, Gen. Miller, to testify. The process is still ongoing. Italy famously convicted 12 CIA agents in abstentia for the rendition of Abu Omar, abducted in Milan, but the Italian Prosecutor failed to obtain convictions for agents of the SISMi, citing state secrets opposition.

The work of an inquiry as vast and difficult as that of the Gibson Inquiry requires time; and time requires the push for action to be maintained. However, the lack of accountability and the complete culture of impunity has left the idea of torture to fester and arise at the first sign of revived trauma. While the release of the SSCI report was celebrated, and for good cause, despite only being a partially redacted executive summary, the results – shocking, nauseating, and a surprise for some – did not yield an charges, let alone convictions. No investigation has been launched. Torture leaves traces. It seeps into the fabric of society in a way that leaves it permanently tainted, and seeks to re-appear after any apparent vulnerability. Without accountability for crimes of torture, the lingering question masquerading as a legitimate debate – does torture work? – continues to be omnipresent and places anti-torture advocates and victims in a situation of having to defend their innocence, as if anything could have justified the treatment they suffered.

And so it happened following the November 13 attacks on Paris, in which 130 people died in the city of lights, the largest attack on French soil since World War II. Suddenly, the threat posed by ISIS, until then elusive on western territories, became very real, and the state response to it, inflated at a high and perhaps unnecessarily rapid rate. In the US Congress, debating a possible new authorization for the use of military force (AUMF) against this new traveling, transnational enemy, Senator Lindsay Graham opposed the closing of Guantanamo; his colleagues reiterated the tired argument of the necessity and efficiency of torture in the face of such a grave threat. Until the truth comes out and is maintained in the public discourse, at government and popular level, that acts of torture are unspeakable ignominies that do not belong in a democratic society, torture will continue to be perpetrated. It will not just be applied to a foreign, distant enemy in covert, extraterritorial prisons: the mechanisms and protocols might also be used by domestic law enforcement against citizens, so convenient the practice is to obtain confessions and recruit informants. Torture, once granted right of passage on a society, tends to stay, unless it is effectively, with the gravitas that it deserves, condemned unequivocally.

An amendment to the National Defense Authorization Act (NDAA) in the US, proposed by Sen. Feinstein, who was Chair of the committee investigating CIA torture, bans the use of torture in the US in the conduct of war – but as psychologist and former APA member Dr. Jeffrey Kaye explains, this does not remove the methods detailed in the Army Field Manual’s Appendix M, nor does it change the 1990 Congressional reservations emitted during the process of ratification of the Convention Against Torture: as long as those are maintained, the US understanding of what constitutes torture and where it applies are in stark contradiction with the requirements of the UN Committee Against Torture, as mentioned in the country’s 2014 review.

While EU member states are bound to the European Convention on Human Rights, banning torture as well as cruel, unusual and degrading treatment in its Article 3, the available domestic remedies are not being used to their full potential, and it is likely that the ECHR’s caseload on CIA rendition cases will continue to increase as Guantanamo and/or Bagram detainees possibly access a lawyer. None of that is new for the European Union, as “legacy” cases – historical inquiries – related to British military intelligence activities in Northern Ireland between 1971 and 1998 are only just emerging. This includes the documents provided by the British government to that same Court of human rights, in an application made by the Republic of Ireland against the United Kingdom. In 1978, the ECtHR ruled that those methods of coercion during interrogation did not amount to torture. 23 years later, the US would use this decision, and British past counter-terrorism policies, to justify and legitimize theirs.

“A slap and a tickle”: from Northern Ireland to the Bradbury memo

96. Twelve persons arrested on 9 August 1971 and two persons arrested in October 1971 were singled out and taken to one or more unidentified centres. There, between 11 to 17 August and 11 to 18 October respectively, they were submitted to a form of “interrogation in depth” which involved the combined application of five particular techniques.

These methods, sometimes termed “disorientation” or “sensory deprivation” techniques, were not used in any cases other than the fourteen so indicated above. It emerges from the Commission’s establishment of the facts that the techniques consisted of:

(a) wall-standing: forcing the detainees to remain for periods of some hours in a “stress position”, described by those who underwent it as being “spread eagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers”;

(b) hooding: putting a black or navy coloured bag over the detainees’ heads and, at least initially, keeping it there all the time except during interrogation;

(c) subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise;

(d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep;

(e) deprivation of food and drink: subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations.

The Commission’s findings as to the manner and effects of the application of these techniques on two particular case-witnesses are referred to below at paragraph 104.

97. From the start, it has been conceded by the respondent Government that the use of the five techniques was authorised at “high level”. Although never committed to writing or authorised in any official document, the techniques had been orally taught to members of the RUC by the English Intelligence Centre at a seminar held in April 1971.

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Nine of the Hooded Men. (c) The Irish Times, December 2014

Those methods, here described in para. 96 and 97 of the ECtHR ruling in the Ireland v United Kingdom case (referred to as the “Hooded Men” case, as the applicants would come to be called) bear striking resemblance to methods employed by the CIA as described in a 2004 internal memo, partially declassified in 2009. It was around the same period that the “torture memos“, authored by government lawyers Yoo and Bybee, would be released, showing reliance on the legal decision (footnote 37) rendered by the Strasbourg Court in 1978 that these interrogation techniques, while in breach of the Convention, did not amount to torture.

Blurring the lines is exactly what the CIA did, has done, and continues to do when it comes to defending its rendition program. While the SSCI report’s executive summary goes in somewhat excruciating detail, it is because it is necessary to decide whether or not the Court has raised the threshold of that dotted line between cruel, unusual and degrading punishment, and torture as defined by the 1984 UN Convention. It became extremely convenient when CIA black sites routinely used sensory deprivation, “noise torture”, and methods of rapport-building with interrogators aimed at provoking psychological disorientation. In a paper called “Torturing the brain“, published in 2009, neuroscientist Shane O’Mara, a researcher at Trinity College Dublin, explains that those methods are not just coercion with the purpose of obtaining information; the long-term effects can affect the neurological structure and chemistry of the brain. O’Mara, whose book released at the end of November this year aims at answering in a scientific manner the never-ending fallacy of the efficiency of torture, may have provided information changing the threshold of acceptable treatment.

Relying on the 1978 ECtHR decision will soon prove difficult for the CIA and other advocates of the rendition program, in the US and overseas: a RTE investigation, “The Torture Files“, based on research conducted over decades by Northern Ireland-based legal charity the Pat Finucane Centre, showed that the British government deliberately misled the Court by handing over incomplete documentation on those methods. Ireland has agreed, in December 2014, to support re-opening of the case, currently under judicial review in Belfast. Because the CIA rendition program and the SERE protocols in place in Guantanamo strongly rely on the MI-5 activities in Ulster, a revision of the past, the legacy of early counter-terrorism legislations, orders, and directives in Europe will affect the process of accountability across the world; the methods of intelligence gathering will be revised, and the permanent political rhetoric surrounding the so-called exemption to the prohibition of torture – terrorism – now can be dismantled. It was affirmed in the judgement that the use of torture on suspected IRA members – whether they proved to be confirmed IRA or not – further radicalized the organisation and prolonged the war: the response to the introduction of the Internment in 1971 – administrative terrorism detention without charge – “surprised” the British government by its effects on a population already considering itself at siege.

In an opinion piece penned by Sen. Feinstein and published by the New York Times in November, the Senator calls for the closure of Guantanamo, speeding up the military commissions process, the enforcement of the decisions of the parole review boards, and, ultimately, end a program and a policy of detention that she admits has become in itself a national security threat. Referring to ISIS dressing up their hostages in orange jumpsuits similar to those worn by Guantanamo detainees, she concludes that ill-treatment, abuse of power, unlawful detention, and general conduct of counter-terrorism outside of legal framework provided by the Geneva Conventions contributes to legitimizing violent response against US forces wherever they are deployed.

It is necessary to specify that the policy the ECtHR details in the introduction to its final judgement was ended in 1974, but torture and ill-treatment by military intelligence continued in Northern Ireland well until a successful peace process could be implemented. The threat posed by the IRA was considered too much of a risk for civilians, both in Ulster and in England, that any method to infiltrate the organisation or obtain information from suspects when captured was politically endorsed. Several euphemisms, again, not unlike that of “enhanced interrogation techniques”, were used by British authorities to hide the dangerous and horrifying reality of their actions. It took Northern Ireland that long to face its past and accept to dig into it, regardless of how scared it was of what it’d find; but there can be no peace without justice, and no justice without truth. From both sides of the Atlantic, western states have to ensure, the sooner the better, that accountability for the crimes they committed in the name of their security is underway. Obama’s desire to turn over a new leaf and continue down its path is unsustainable. The United Kingdom, in 2015, has now failed two opportunities to stop its practice of torture in the name of counter-terrorism. Re-opening the inquiry in parallel to supporting the investigation of legacy cases in Northern Ireland would be unprecedented, but historically significant.

The duty of investigation as guarantee of no-recurrence

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A bomb exploded outside the MI-5 Palace Barracks in Holywood, Northern Ireland, in 2010. R-IRA claimed responsibility for the attack. (c) The Irish Times

 

“There is a need for mechanisms which are apt to examine the more structural and systemic dimensions of the rights violations and abuses of the ‘Troubles’. Such mechanisms should be in addition to, not as a substitute for, procedures that might bring satisfaction to victims in terms of truth and justice.” (…)

The human rights expert cautioned that cases leading to death have received most of the attention, leaving out serious other violations, ranging from illegal detention to serious injury and torture, among others.  “These victims, many of them in situations of particular vulnerability, and they deserve urgent attention,” he underscored.

“I am calling for a comprehensive redress and prevention policy, which must encompass also strategic work towards an integrated schooling system, including on history teaching, the establishment of a trustworthy entity to deal with records and archives on the ‘Troubles’ and more emphasis on psychosocial support to victims and their families.”

This statement from Pablo de Greiff, the UN Special Rapporteur on the right to truth, justice, reparations and guarantees of non-recurrence was released via the Human Rights Council on November 19, 2015 following a 10-day visit in England and Northern Ireland. Such a position as independent expert of the UN Special Procedures mechanisms highlights truth and justice as fundamental rights, pillars of the guarantee of non-recurrence, which translates into accountability as an institutional duty not to engage in those violations in the future.

The duty of investigation is set out in Article 2 of the ECHR; it demands, requires, places an obligation upon member states to seek truth and justice in any exposed and alleged violation of human rights as set out within the Convention. Northern Ireland has relied on Article 2 to maintain the possibility of opening “legacy cases” in its domestic courts, a process under threat by the current Cameron government to repeal the 1998 Human Rights Act, repeal its territories from the jurisdiction of the Convention – this includes Northern Ireland, as national security issues do not benefit from devolution.

As mentioned before, the responsibility to investigate and prosecute perpetrators of torture is also set out in the 1984 UN Convention Against Torture, in both article 4 and article 12. The focus on the responsibility, the requirement to investigate is framed as just as important as the need to prevent from being committed. The language is, at first sight, difficult to interpret outside and beyond what was intended by the authors of the Convention, but the US and the UK maintained a political appearance of compliance through blanket denial and loose interpretation. The discourse surrounding political necessity to answer to hideous crimes of terrorism has become the equally as hideous necessity to commit torture, to the point even well-established lawyers felt comfortable detailing a proposal for torture under judicial warrant. Article 2 (2) is very clear: there is no exemption to the absolute prohibition.

UK Home Secretary Theresa May has several times invoked the fact that ISIS posed an unprecedented threat to the security of the United Kingdom and the safety of its citizens and residents. This implies that, despite the threat of violence being more significant than the actual acts of violence themselves on UK territory, ISIS would pose a bigger and more politically consequential threat than the IRA ever did during the Long War. Not only would this place the Terror Orders and the Prevention of Terrorism Acts in a context, not just of constant legal derogations in the name of counter terrorism, but also of political legitimacy in order to respond in proportional terms to IRA actions; it would also make the ISIS threat bigger, therefore the response stronger, more powerful, intrusive, and less likely to be limited and space and time, or subjected to parliamentary or judicial review. The fear that ISIS provokes in western country is so intense that it is reviving what Europe thought it had buried several decades ago.

The report of the Gibson Inquiry identified 30 (!) issues it would have wished to investigate, ranging from unease at raising the issue of torture with the “partner” (the US) to knowledge of the RDI programme from the executive. All 30 issues are paramount to determining criminal responsibility under domestic and international law. All 30 issues remain relevant to this day, as President Obama seeks – and fails – to close Guantanamo, and the UK seeks – and fails – to hold itself compliant with international humanitarian and human rights law while still creating areas of exemption. Through revisiting the Gibson Inquiry report and use it as a basis to re-launch the detainee inquiry, the UK could find itself in the unprecedented position to establish its own domestic system of accountability, truth-seeking, and transparency in the conduct of the war on terror – in line with the abuses it committed in the past and has yet to condemn at judicial level. With Shaker Aamer free, and 6 UK applicants seeking redress and truth in their own rendition to Guantanamo, there is a political responsibility not to let that time window close – and a legal duty to uphold.

Read the full Detainee Inquiry December 2013 report here

Read the Interim Report of the European Parliament inquiry on CIA rendition here

Read the Marty Report on EU member states and CIA rendition, 2006

Read the Fava Report on EU member states and CIA rendition, 2007

Read the executive summary of the SSCI report on the CIA rendition program, 2014

 

In remission: Miranda v Home Secretary

David Miranda, the threat to the United Kingdom. In “good faith”

Last August, when David Miranda, Glenn Greenwald’s husband, was arrested at Heathrow, the usual tense climate between investigative reporters and the concept of national security had climaxed. It was chilling. It launched an attack on journalism from the ceiling down – a crushing battle aimed at crippling, alienating, and eventually defeating those who acted in the name of public interest. Despite the little attention it seems to have received, nothing in 2013, in the world of civil rights at least, has sent such a message of fear and willingness to crush any democratic spirit than that moment Guardian journalists were made to destroy their own hard drives under the watchful eyes of GCHQ agents. One can’t help but wonder if this event was perceived as either mundane because we have internalised a surveillance state, or insignificant because the Guardian has been so demonized in the eyes of true blue patriots they deserved their fate. Both assumptions are wrong. Both assumptions should be proven wrong.

The Miranda case has been branded as a landmark situation that gave way and motive for a review of the infamous Schedule 7, outlining the powers of detention granted by the Terrorism Act 2000 (ATCSA). It’s a little more complex. Although the judges believed their application for appeal should be made on grounds that the case was fact-dependent, there are several matters of basic, fundamental principles questioned by the provisions of the ATCSA – and the fact the ATCSA is brought up against journalists, or those aiding journalists – that are not fact-dependent. Because the protection that should be awarded to members of the press has been suspended in the name of counter-terrorism, it begets the question of whether terrorism warrants such suspension, and whether the definitions in play in the ACTSA are applicable ones. Although a review of Schedule 7 is underway at Parliament, the recommendations all made for Schedule 7 review are dependant on the definition of terrorism – Article 40 (1) (b).  An officer is granted discretion to assess a terror threat based on that definition, which is vague and circumstancial. It is the belief of many human rights lawyers having observed the increased use of ATCSA powers to persons usually protected from accusations of criminal activity associated to political dissent that it is 40 (1) (b) that can prove to be problematic.

The powers of detention extended to a terrorist suspect are dangerous. What is just as pervasive and dangerous is that said individual can be considered a terrorist suspect in the first place. Terrorism powers always should be granted better and bigger limitation based on the extensive reach they provide. Before the ruling was due, I had mentioned the following –

UK High Court of Justice

Powers granted under Schedule 7, surveillance and improper purpose

Theresa May prided herself in the fall for accessing the demand of a review of Schedule 7, and this a whole year before the Miranda case. Back then, powers granted under Schedule 7 were already difficult to swallow. Although it took her a couple of paragraphs to re-affirm her commitment to the powers of the ATCSA, she threw a small bone at the human rights community and the basic democratic principles by announcing she would launch a public consultation with internal review. This review is prefaced by a solid 67% of respondents saying that, in 2012, Schedule 7 was already “unfair, too wide-ranging and should be curtailed”. The Home Office identified 12 specific questions ranging from detention to strip searches, delays of interrogation and respect of human rights. Of those 12 questions, the internal review concluded 7 needed amendments or modifications. All amendments in question were aimed at reducing the powers of detention, including the maximum time of detention without charge to go from 9 hours down to 6 hours.

David Miranda was detained for 9 hours.

In November 2013, David Anderson QC, the independent reviewer of UK anti-terrorism legislation, released his own report into Schedule 7. He did not conclude the detention powers, as they were, were excessive; he advised that the suspicion from officers that a given individual may be engaged in acts of terrorism fell within the ATCSA definition of terrorism to grant detention. This is a vicious circle. Per his conclusions,

(a) Detention be permitted only when a senior officer is satisfied that there are grounds for suspecting that the person appears to be a person falling within section 40 (1) (b) and that detention is necessary in order to assist in determining whether he is such a person.

Should this all be still confusing, let’s just give a senior officer discretional powers to extend said detention without charge:

(b) On periodic review, a detention may be extended only when a senior officer remains satisfied that there continue to be grounds for suspecting that the person appears to be a person falling within section 40 (1) (b) and that detention continues to be necessary in order to assist in determining whether he is such a person.

Now, although the internal review did recommend that specific, terrorism-related officers working in police stations or in ports be trained in quickly determine or assess the potential threat of an individual seeking entry or transit on UK territory, it appears that in the case of Miranda, the work was cut out for them by the Secret Service. Paragraph 9 of the Court ruling prove that Miranda was, in fact, under surveillance by both US and UK authorities and the Custom Border Protection Officers (CBPs) had been informed of his transit through Heathrow, and seriously advised to keep him and search him.

The Security Service (…) had undertaken an operation relating to Mr Snowden. They became aware of the claimant’s movements. At 0830 on Thursday 15 August 2013 they briefed Detective Superintendent Stokley of SO15, the Counter Terrorism Command in the Metropolitan Police, the second defendant. On Friday 16 August a Port Circulation Sheet (PCS), a form of document used to provide information to counter-terrorism officers, was issued by the Security Service to the Metropolitan Police and received at the National Ports Office at 2159. On page 2, against a box asking for confirmation “that the purpose of an examination will be to assist in making a determination about whether the person appears to be someone who is or has been concerned in the Commission, Preparation or Instigation of acts of terrorism (CPI)”, the Security Service had entered the words “Not Applicable”. On the same page this was stated:

“Intelligence indicates that MIRANDA is likely to be involved in espionage activity which has the potential to act against the interests of UK national security. We therefore wish to establish the nature of MIRANDA’s activity, assess the risk that MIRANDA poses to UK national security and mitigate as appropriate. We are requesting that you exercise your powers to carry out a ports stop against MIRANDA.”

The Guardian’s Ewen MacAskill, Glenn Greenwald and Laura Poitras, who recently were awarded the George Polk Award for journalism

Through paragraphs 10 and 11 of the decision comes a conversation between the Secret Service and the Met Police, that maybe further intelligence and information was necessary to use Schedule 7 at Heathrow to arrest Miranda. Later, the Secret Service would send a note – redacted, even in the ruling – claiming that Miranda was carrying material between Glenn Greenwald and Laura Poitras; that this material had been provided by Edward Snowden; that it contained information pertaining to GCHQ activities; and that it was damaging to UK national security. But the most important part, and what has caused the arrest, detention, interrogation, what would be at the core of Judge Laws’ ruling, is the Secret Service’s final PCS on August 17th, which reads with a sense of emergency, of fear, of confusion, of absolute necessity to stop the ongoing free-flow of material that was provided to Greenwald. It is frankly frantic, a little obsessive, and shows the absolute scare that public interest journalism creates in governments willingly engaging in wrongdoing:

“We assess that MIRANDA is knowingly carrying material, the release of which would endanger people’s lives. Additionally the disclosure, or threat of disclosure, is designed to influence the government, and is made for the purpose of promoting a political and ideological cause. This therefore falls within the definition of terrorism and as such we request that the subject is examined under Schedule 7.”

Everything you ever needed to know about the UK national security principles and what actively constitutes national security is contained in that one PCS. If the ruling provided any sort of information – besides the acknowledgement that we will touch on later – is that the Secret Service is concerned with protecting national interests, government secrets, and that the furthering of the fundamental rights to press freedom constitutes an act of terrorism that falls within the purview of 40 (1) (b). Thanks to this PCS, we are now all clear on where the Kingdom stands.

Before the ruling emerged today, I wrote about public interest journalism and the fear-mongering propagated by both DNI James Clapper in the US and his lethal allies (*) – Theresa May, Andrew Parker, Chris Grayling, et al: all those endangered lives that Louise Mensch ranted on about do not exist. The only thing that’s endangered is the democratic career of the government officials who engaged into unconstitutional and unlawful actions against their citizens and foreign nationals in the name of the threat later revealed to be inexistent or a simple excuse. It is not because the Secret Service claims that Miranda falls within 40 (1) (b) that it effectively does, but the Met Police can’t contradict a PCS. In fact, officers may not even be thoroughly informed of the true motives behind the PCS (intelligence firewall).

Once again, one of the many pitfalls of Schedule 7 is that it exists in itself to ascertain whether the person falls under 40 (1) (b). There is no necessity for the officers to assess whether the person does before launching a Schedule 7 provision. In this case, due to the PCS, even with little knowledge of the content, there was a suspicion that Miranda would fall within Schedule 7 suspicion…  but the PCS had led them on already.

Glenn Greenwald and David Miranda, after his detention at Heathrow

Disproportionality of a Schedule 7 inspection

The question of proportionality can not exist in a vacuum; and it was Ryder’s submission as counsel for the claimant to refer to previous jurisprudence on what exactly should Schedule 7 be measured against in order to assess whether it was disproportionate or justified. In Bank Mellat v Her Majesty’s Treasury (2013), Lord Sumption, usually not one to rule in favor of human rights law or apprehend a counter-terrorism provision or in an international law context, decided (quoted in para. 39):

“The question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to that objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regards to these matters and the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community.”

In the Miranda case, all of this can be easily assessed if we remove the idea of a national security protection from its political context and weigh a Schedule 7 provision against the husband of a journalist transiting through an airport. Is the objective of the Secret Service sufficiently important to limit the fundamental right of freedom of the press? Not if this press is acting in the public interest (strike one). Is the situation rationally connected to the objective? The increasing issue of national security not in protection of citizenry or territorial integrity but rather in protection of state interest does not constitute a rational motive, but rather a disproportionate use of force to protect the state (strike two). Could a less intrusive method have been used? In the case of WikiLeaks material and/or Snowden files, both revolutionary in the approach of whistleblowing in the digital age, I once argued that the Computer Misuse Act could have been useful without calling on to espionage or terrorism charges (strike three). Has a fair balance been struck? If the balance is achieved between the severity of the treatment granted to David Miranda and the protection of the United Kingdom, there is no such thing. It is a complex, heavily funded, internationally supported and executively connected state apparatus against a foreign national not even seeking entry or haven into the territory. Miranda was stuck in-between his departure city (Berlin) and his home (Rio de Janeiro). He was trapped. Is there a balance? Would Miranda alone – and the files he was carrying – bring down the Empire? (strike four).

In case one argues against my vision of Lord Sumption’s criteria number 1 and 2, on the national security imperative not protecting from an internal or international threat of violence against the integrity of the nation – that is, the state and the population, not the government – D/Supt Stokley’s testimony of his reaction upon receiving the PCS should clarify the situation of what the national security imperative actually meant in the Miranda case; it meant that it was handed out to an officer that simply did not make the distinction, and was not properly informed of the meaning of intelligence operations. The decision to call on a Schedule 7 detention was made by an agent of the Crown who was unaware of the activities of other agents of the Crown. I find this testimony disturbing in the light of the realities of GCHQ / PRISM activities (para. 37):

It appeared to me on the basis of what I knew about the stolen material, that it could be used to endanger life and cause harm to the members of the public… It was very clear in my mind that this action was not being executed as a means to prevent political embarrassment in the UK… I believed that the information in the claimant’s possession could potentially compromise the UK’s ability to monitor terrorist networks, posing a threat to the safety of the public… In particular, I considered that the release of information about PRISM technology into the public domain was of use to terrorists. My understanding of the technology from material in the public domain is that it enables security and intelligence services to monitor email traffic. Accordingly, I considered that if nothing was done to try to prevent further damaging disclosures which could directly benefit terrorists, the MPs and I personally would be failing in our obligation to prevent the loss of life, safeguard the public to (sic) prevent and detect crime.

Once again, it has been made abundantly clear at a Senate Intelligence Committee hearing in Washington, DC regarding NSA activities and requesting testimony from DNI James Clapper that, in fact, NSA activities barely amounted to truly specific counter-terrorism measures. An article in The Guardian on January 14, 2014 written by Spencer Ackerman quotes Michael Morrell, a former CIA deputy director:

Morrell added that the bulk collection of domestic phone data “has not played a significant role in preventing any terrorist attacks to this point,” further undercutting a major rationale offered by the NSA since the Guardian first revealed the bulk phone-data collection in June, thanks to leaks by Edward Snowden.

Just like Lord Justice Laws, I find no reason not to believe Stokley was genuine in giving this testimony. He just appears to not have been informed, or been purposely misinformed.

a terrorist Washington Metro bus

Article 10 compliance

Again, back in July, I had denounced a violation of Article 10, and would still to this day recommend a review by Strasbourg. But the current climate between the United Kingdom and the ECtHR is tense, to say the least, and asking for a judicial review in a British domestic court based on ECHR compliance is somewhat defiant. This shouldn’t be an issue, however. As of the date of this ruling, the United Kingdom is still party to the ECHR, and is still required to abide by its standards. Just like any state wishing to assert its national principles as being, if not superior, at least equal to supranational or international law, it all lies within a matter of interpretation. In this case, while Mr Ryder relied heavily on the fundamental principles of the freedom of the press in the handling of David Miranda and his relation to Glenn Greenwald, Laura Poitras and Edward Snowden, the Judges saw fit not to weigh the use of the ACTSA against the ECHR, but to assume, pre-emptively, that the law of the land was already ECHR compliant (which it mostly isn’t) and that said domestic law was not to establish fundamental freedoms, see; those fundamental freedoms exist by sole virtue of being on British soil, and the law only seeks to establish the exception. Referring to Attorney General v Guardian Newspapers (1990), quoting Lord Goff in para. 41:

“I can see no inconsistency between English law on this subject and Article 10 (…) The only difference is that, whereas Article 10 of the Convention, in accordance with its avowed purpose, proceeds to state a fundamental right and then to qualify it, we in this country (where everybody is free to do anything, subject only to the provisions of the law) proceed rather upon an assumption of freedom of speech, and turn to our law to discover the established exceptions to it.”

I have no words.

To understand where the concept of damaging disclosure comes from, we must go back to first the definition of terrorism under the ACTSA, and the already existing but not terrorism related Official Secrets Act of 1989. Per the ACTSA, as mentioned early in the ruling, terrorism constitutes the use or threat of action where –

(b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and

(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.

(2) Action falls within this subsection if it-

(d) creates a serious risk to the health or safety of the public or a section of the public, or

(e) is designed seriously to interfere with or seriously to disrupt an electronic system.

Under this very, very vague definition of terrorism, anything that is done from group acts of political dissent to actual violence against the population can constitute terrorism; it is too broad a spectrum to consider a journalist on the same scale as a suicide bomber entering a busy Guildford pub on a Friday night. The proper law to be applied here is the OSA 1989, on the information resulting from unauthorized disclosures – concerning even journalists and editors. It is an offence to disclose material:

(b) where the material was acquired as a result of an unauthorized disclosure at some stage by a Crown servant or government contractor (5 (1) (a) (i))

(c) where the material was entrusted to the recipient in confidence, or with a reasonable expectation of confidence, by a Crown servant or government contractor (5 (1) (a) (ii))

(d) where the material was acquired as a result of an unauthorized disclosure at some stage by a person to whom it had been entrusted as in (c) above.

Edward Snowden working for the NSA – a branch of the US government, as a US citizen, pertaining to US information – can only qualify under (d) as GCHQ material and information was relayed to the NSA. But the NSA files constituted classified information. They were handed to Edward Snowden in his capacity of cleared government contractor. The concept of damaging closure under the law can apply, and could potentially restrict the application of Article 10 (2), which only limits freedom of the press in line with the Johannesburg Principles … except for that small line,

preventing the disclosure of information received in confidence

Greenwald with two terrorist dogs

This is where the notion of “pressing need” of the public interest comes into view, in Sunday Times v United Kingdom (1979). There is now a need, in the current political context, to update the current public interest jurisprudence, that has made a certain headway in the protection of press freedom against disclosure that was found non-damaging to the government, or could easily be made in the name of public interest on health risks, armed conflict, all concepts easily provable and publishable – but in this era of constant classification of all possible information relative to an extremely wide range of governmental activity at home and abroad, there is no assessing the public interest in a direct political context. This is a context in which PIIs are requested in Court of Appeals. This is a context in which surveillance is authorized by secret courts. This is a context in which Senate reports can not be disclosed even after repeated requests for obtention. It is maddening. There is nothing that has fallen into the public domain that could help a claimant assert their position that they acted in the public interest; unless there is an effort, on the part of the public, and on the part of their representatives, to see the confidentiality as the issue in itself, a red flag for the possible commitment of abuses. Transparency is an extremely perfected tool of accountability. It is, in fact, the only one.

If the High Court believes that in dismissing the appeal of David Miranda, it is ECHR compliant, it is a complete fallacy. Only the ECtHR is apt in 2014 to decide whether the confidential disclosure provision of Article 10 (2) should be upgraded and updated through landmark jurisprudence in order to weigh the damage caused by the disclosure against the notion that it served the public – and the international – interest. Assessing the compliance to fundamental human rights in a court that had already granted an anti-terrorism provision against a journalist does not provide the proper safeguards for the true judicial review of human rights.

The Human Rights Centre at Durham Law, chaired by the wonderful Fiona De Londras, with whom I have discussed a counter-terrorism judicial review, has already tackled the issue of Schedule 7 . Although their review concentrated on the impact of counter-terrorism policies on the Muslim community, their requests for change on Schedule 7 find an echo: they call for increased transparency and accountability, which has been severely lacking in this decision; and a radical demand for the length of examination to be reduced to two hours, in order to curtail the “detrimental effect” a prolonged detention can have on the individual. The intimidating effect such law enforcement powers can have on a person – especially one that is isolated from a group as they travel or transit – can not be stressed enough; and it is at the very core of counter-terrorism powers to act as a powerful deterrent. It is however proportionately damaging when the individual in custody meets no criteria of reasonable suspicion.

seriously, get ready.

When it comes to journalistic rights, where are the legal safeguards that can be used to protect them against discretionary powers and media control? The High Court debated another ECtHR case, Gillan and Quinton v United Kingdom (2010), in which the supranational court absolutely refused to let fundamental rights be curtailed through simple, personal, or guided – as was the role of the PCS in this case – decision making.

For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise

Still Article 10 compliant, Lord Justice Laws?

In another case, Sanoma Utigevers BV v Netherlands (2010), the Court even assessed the long-term damage it could do to a journalist, a newspaper, and their relation to sources, credibility, and transparency if there were to be interference with executive authority:

The Court notes that orders to disclose sources potentially have a detrimental impact, not only on the source, whose identity may be revealed, but also on the newspaper or other publication against which the order is directed, whose reputation may be negatively affected in the eyes of future potential sources by the disclosure, and on members of the public, who have an interest in receiving information imparted through anonymous sources. (…) First and foremost among these safeguards is the guarantee of review by a judge or other independent and impartial decision-making body. The principle that in cases concerning protection of journalistic sources “the full picture should be before the court” was highlighted in one of the earliest cases of this nature (…). The requisite review should be carried out by a body separate from the executive and other interested parties, invested with the power to determine whether a requirement in the public interest overriding the principle of protection of journalistic sources exists prior to the handing over of such material and to prevent unnecessary access to information capable of disclosing the sources’ identity if it does not.

Despite this, Mr Kovats, representing the Government, submitted that the ECHR had “not developed an absolute rule of prior judicial scrutiny” on the protection of private interest journalism. (For the sake of the readers, there are two more decisions I did not see necessary to include). On para. 88 of the ruling, the Lord Justice found that indeed, they could not base themselves on existing ECtHR jurisprudence to establish a fundamental rule and model for them to follow.

Rented world

Justice Ouseley did not encumber himself with grand statements. He did not try to contest anything; Justice Openshaw was barely existent. Ouseley just maintained the principles of 40 (1) (b) and supported that an officer, in order to launch Schedule 7 provisions, just needed to “act in good faith”. In what good faith exactly was D/Supt Stokley? Was position was he in, between uncertainty on his government’s motives and the increased pressure of several PCS sent his way? How could be possibly make the decision, without any sort of independent judicial scrutiny, that his actions were lawfully warranted? The truth is, good faith is not a test of good conscience. It is not a test of good morals, or a litmus test for someone’s willingness to stand up to abuses of power. Good faith is what it is. It is fleeting, unreliable, flaky, and perfectly serves the interests of those who benefit, use and abuse the laws they made – and had passed in good faith.

A legislative review of the ATCSA is now necessary given the judicial deference of the High Court to the executive. This is hardly a new concept in debating anti-terrorism law in the UK. In 2004, Lord Hoffmann, then on record in A v Secretary of State for the Home Department, had already challenged the concept of detention without charge or trial against fundamental liberties he believed were enshrined in British law:

The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such victory.

(*) for those getting the reference: I stand by it.

[ ref.: I get nervous everytime I try to talk in front of a big crowd, a pretty girl, or the police ]

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.

Hassan v United Kingdom: “human rights law is not rhetorical”

Camp Bucca, Iraq, which prison is under US authority. (Photo: 2009 / NYT)

On December 11, the European Court of Human Rights (ECtHR) heard the case of Tariq Hassan, the applicant, a former detainee of Camp Bucca in Iraq, arrested a month after the beginning of the hostilities, then found four months later, his body riddled with bullets, 600 kilometers away from the camp, his hands tied behind his back. Although he had been released from Camp Bucca, he was still carrying his UK-issued Camp Bucca ID tag. The hearing had made waves: the University of Essex was allowed to submit commentary on the case as a third party, and a delegation of Supreme Court judges from around the world were in attendance. This hearing was not a simple case of jurisdiction, as the United Kingdom representative made it out to be. This hearing touched on two core principles: whether human rights law is suspended in times of armed conflict, and the position of a government regarding its own war crimes when security documents are suddenly declassified. The opening sentence of the United Kingdom set the tone for the following two hours: “if I wasn’t nervous before, I’m nervous now.” And well he should be.

“the UK detained the applicant under the pre-emptive assumption he was an enemy combatant.”

Tariq Hassan was captured by British armed forces in Iraq under the suspicion that he was an “enemy combatant”. Detained and interrogated, he was later released after being considered a civilian by the British, who thought fit to keep him in the camp “as Iraq was a dangerous place”, and a civilian would be better off in a British camp than back home. If both parties are disputing jurisdiction, it is based on whether or not the “active” part of military hostilities were still taking place back then, or if the United Kingdom had effectively become an occupying power, per the Geneva Convention. Throughout the course of the hearing, several inconsistencies on the official status of Tariq Hassan will surface: a civilian, suspected enemy combatant, armed combatant, security threat – all of which can be tied to whether the hostilities were still taking place and the UK was effectively at war, or if persons non engaged into active hostilities could be deemed, by default, civilians. If the UK kept on arguing that military action was legitimate in the case of the applicant, who was found on the roof of his house carrying an AK-47, circumstances need to be taken into account: carrying assault rifles was lawful in Iraq at the time, and the applicant acted lawfully. Whether he posed a security threat to British armed forces in Iraq at the time has always been questioned by the applicant’s counsel, who argued his arrest and detention were linked to the applicant’s activity as a high-ranking official of the Ba’ath party. A debate before the Grand Chamber of the ECtHR could not solve the question of the determined date of the end of active hostilities in Iraq, or what could make an enemy combatant out of a civilian. The issue raised – and the claim made by the applicant under Article 5 – was whether it was justified to apprehend an individual, in a context of armed hostilities, and detain him under the pre-emptive assumption he was an enemy combatant.

The UK will maintain their position throughout the hearing, referring to international humanitarian law (IHL) and the Third Geneva Convention (GC3) in a way that will later explain Justice Secretary Chris Grayling’s position this week. The government asserted and repeated that soldiers are the time were “ill-equipped” to make a judgement on the category of armed combatant they were dealing with, later to say “we can not expect soldiers to apprehend someone, and question themselves: ‘what paragraph of the Geneva Convention is this in relation to?'” he would argue, in response to the Court’s questioning. The counsel, however, argues that the arrest and detention was not arbitrary; detaining Tariq Hassan was “a bargaining chip”, a tool of intimidation against the real target of the military operation, the applicant’s brother, a general in El-Quds Army. The counsel rejects the remise that the applicant was an enemy combatant. Its only crime, they say, was to be related to one, which, in the context of the invasion in Iraq and the permanent, global quest for security and safety launched by the United States and the United Kingdom, is enough to justify arrest and detention. In short, Article 5 does not apply, because one, even as a civilian, is a combatant by proxy, by virtue of blood or location.  The government’s claim that Hassan was deemed “probably a civilian” is just one of many inconsistencies mentioned during the hearing that only confirm the fact that military operations in Iraq at the time, classified up until September, were riddled with issues of territoriality, responsibility and, most of all, accountability.

Appropriate and relevant documentation shed a different light on the story for both parties. The applicant, which alleged a violation of Article 2, was swiftly rebutted by the Government in a way that somehow defies logic: there could be no allegation of ill-treatment, the government said, because, due to its civilian status, the detainee must have been released. Discrepancies on the date of release, the area of the camp in which Hassan was detained, and the obscure circumstances of his release are apparently irrelevant: the Government assumes that no violation could have taken place since the Government would have never been in position to violate the law in any way. The location and the timing of the discovery of Hassan’s body are still an issue of contention; the fact that he was detained after being cleared, however, for “security reasons” – his own security – leaves a lot to be desired as to how the United Kingdom interprets the conditions of Article 5 (1) . Never mind the classification of the operation up until September 2013, about a year after the applicant first made their claims to the Court: as far as the United Kingdom is concerned, in the case of the death of a former civilian detainee in one of their camps in Iraq, “there is nothing to investigate, there is no basis to engage the responsibility of the United Kingdom”.

photo 1

James Eadie QC, Counsel for the UK government: “so, this is where Article 5 is .. in juxtaposition with IHL…”

photo 3

“… anyway, my point stands, with respect to the Court, that Article 5 is not applicable.”

To evade said responsibility, the Government made it clear it did not recognize the claim of jurisdiction. Ensued a battle of the legality of jurisdiction in the Iraq war, that could be a simple matter of legal hierarchy if it did not imply a vacuum in accountability for possible violations of human rights in Iraq. According to Article 1 of the Convention, extraterritorial jurisdiction is exceptional. What could be more exceptional than the case of an international armed conflict in which the member state later becomes an occupying power? In a sentence that echoes Lord Sumption’s recent assessment of the ECHR, which he accused of “expanding the scope of human rights law”, the Government explained that this case could not be made as a “fundamental development of jurisdiction”, and this on general principle. According to the government, this is an IHL issue, definitely not under the scope of British jurisdiction, therefore the applicant had no claim to petition to the ECtHR. But what constitutes jurisdiction in international armed conflict? The concept of effective control of the area (ECA) will be defined, redefined, stretched and reduced to being clearly meaningless in the eyes of the government, which could not possibly refuse it had ECA under international law without, in the same step, claim it hereby fell under United States jurisdiction. There can be no void of territorial jurisdiction in armed conflict; if a state can claim it has become an occupying power, and “shared some duties” with another occupying power like the UK claimed, it falls beyond the scope of ECA. The Government found itself in the extremely difficult position of trying to reject a claim of responsibility without arguing in favor of another state – an ally – having this responsibility instead. Given the extent of the US and UK collusion in this case, the battle was lost before it even was addressed before the Court.

According to the United Kingdom, the laws of warfare have changed, for “practical” reasons.

Trying to reject the ECA, the UK argued  that we “need to be thoroughly cautious when establishing jurisdiction. (…) the UK had become effectively an occupying power (…) and were holding the fine line before anarchy… but that doesn’t mean the UK had effective control of the area.” Since the UK insisted on referring to GC 3 as being the only relevant covenant applicable to this case, a cursory glance at the definition of occupying power the Hague Regulations can be relevant. Article 42,

Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.

The Hague Regulations, also mentioned in the opening statements, are pretty clear on the duties of the occupying power and its relation to ECA. On Article 43,

The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

The reference to the UK holding back against “anarchy” clearly satisfies the “public order” criteria; the application of Article 5 of the Convention is also just as clearly in accordance with the 1949 Geneva Convention protecting civilians. Is there such a thing as a civilian in modern warfare? Has the attack on March 20th, 2003 erased the concept of presumption of innocence? It appears to be so, as the United States often excuse their strikes on non-combatant bases as targeting people loosely linked, or related to, combatants – combatants that have never been defined as such after interrogation and investigation. Tariq Hassan was a civilian, but his status had to be defined as such post interrogation as he was pre-emptively deemed a combatant. This is in violation of the Geneva Convention, regardless of whether the active part of hostilities in Iraq had ended or were still under operation, a concept that the UK tried to raise and was quickly dismissed by the applicant’s legal counsel. The UK seemed to operate under the idea that in times of armed conflict, human rights law is displaced. The Court had several questions in that regard, especially considering the UK had assumed Article 5 would not stand and would prefer to see itself subjected to GC 4. However, GC4 is unequivocal in the protection of civilians in armed conflict.

Art. 4. Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

There is no displacement of Article 5 of the Convention under IHL. Article 5 of the Convention maintains the status of civilians and still claims that their rights cannot be renounced. In a previous debate at the House of Lords, Judge Brooks had expressed that it was “utterly unreal” that the United Kingdom be held as having ECA in Iraq, even after they had become an occupying power. In effect, the UK is contesting the very Geneva Convention it is proposing to uphold in lieu of the Convention… by claiming two mutually exclusive concepts, being an Occupying Power and being responsible and accountable under law as having jurisdiction per se. The Government claimed, visibly frantic as he tried to assert his position before a Court that was more than skeptical:  “you can not expect states to establish jurisdiction and all affordable existent rights in cases where they can not practically do so”. According to the United Kingdom, the laws of warfare have changed, for “practical” reasons.

The Court had several questions. Between the US and the UK, who effectively had jurisdiction? Why is the US interrogating detainees in UK custody? How is the UK arguing it was not bound by the Convention, but by GC 4, and how did it explain the alleged lapse in legal coverage? How is the UK addressing the massive discrepancies between what is reported and what has emerged in light of the declassified Blackwatch documents?

Why does it appear, in light of the opening statement and the applicant’s declaration, that the UK not only had little control as an Occupying Power, but was not operating alone in the classification, determination, and release of its own prisoners of war?

“The extent of control as exercised by the UK in Iraq was far beyond usual military activities”

The applicant’s claim was simple: this is under British jurisdiction. The UK was in control of military operations area; the applicant was arrested by UK state agents; he was interrogated, in part, by UK forces; the UK was in control of the camp, which it had derived from the US. The UK was hereby, under Convention as well as IHL, responsible for the applicant’s welfare. Attempting to create a legal void in a conflict zone to avoid accountability can not be upheld by the Court. According to previous jurisprudence, the concept of state agent has no clause for exclusivity or derogation of rights. If the UK tries to escape jurisdiction and refer strictly to IHL – which, again, is in complete accordance with the Convention, it is simply “to substract out of its obligations”. Smith v Ministry of Defense also discussed the same issue: it extends powers of the Convention at home and abroad. Details revealed by the recently declassified Blackwatch document precises that “British armed force were strongly encouraged to intervene in local disputes”, and “extent of control as exercised by the UK was far beyond usual military activities.” Camp Bucca was created for criminal justice purposes. The complete theory of avoidance and dismissive attitude of the UK government in regard for human rights law under the pretense of armed conflict is irresponsible. As stated by the ECtHR itself in the Al-Nasri case, “human rights law is not illusory or rhetorical”.

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Tim Otty QC, Counsel for the Applicant: “there is no displacement of Article 5 in the absence of derogation. I would like to go back to the facts.”

Perhaps one of the most telling moments of the hearing was the hurdle faced by the UK government in trying to explain that not only did it not provide derogations as facilitated by Article 15, but that instead of following a lawful way to extend its powers of detention – at war and at peace time – it suggested a modification (!) of Article 5. According to the representative, the conflict of legislation intervenes when Article 5 provides a thorough and almost absolute prohibition of arbitrary detention – “but the Geneva Convention allows a belligerent state to kill in warfare; but detention would be restricted because of Article 5?” the so-called absurdity hereby pseudo-denounced by the UK government is expressively what the UK policy in its intervention of Iraq and Afghanistan has demonstrated: that it reserves itself the right to auto-derogate to human rights law in conflict zones, so as to provide not only a realm for its forces to kill, but also detain, interrogate and torture protected persons under international law, for the simple reason that war is war, and war is dirty, messy, bloody, and sometimes, absurd. If anything happened during this hearing, and if anything had to be strongly emphasized from the applicant’s statement, is that nothing can be considered in absolution of human rights law. Contrary to what the UK government claimed, there is no lex specialis that could ever authorize gross violations of human rights law under the pretense of international armed conflict and situations in which armed forces are, as they said, “ill-equipped” to behave lawfully with parties concerned by the occupation. There is no derogation clearly formulated simply by circumstance. Perhaps knowing that a derogation under Article 15 would be refused, the UK simply marched into Iraq, and expected its own domestic courts to affirm that human rights law had effectively been suspended. It wasn’t, has never been and never will be. Only recourse for the UK at this stage would be with withdraw from the Convention, which would mean withdrawing from the rule of law altogether. This will still, nevertheless, not stop the violations of the Geneva Convention to be made.

Once the applicant had made this point, he paused, and said he would “like to return to the facts.”

The declassification of Blackwatch documents has been briefly addressed, but was absolutely necessary in the course of the hearing. The obtention of these documents by the applicant helped focus and speed up a process by revealing discrepancies and inconsistencies between the information formally submitted by the UK to the Court, and what was effectively reported and documented by armed forces on the ground. The previous declassification of Blackwatch documents as obtained by the applicant were heavily redacted, and this for national security concern; whether those concerns pertain specifically to the Hassan case, the applicant continues that it has remained wholly unexplained. The relevance of the arrest and detention of Tariq Hassan by UK forces – and its second screening and interrogation by US forces – seems to be beyond what the UK has claimed, saying the applicant was of “no intelligence value”, and had been hereby released two or three days after his arrest. However, the date of his release in the Blackwatch documents is different than from the date specified by the UK government; the detail that the applicant has been interrogated not just by the UK forces, who had arrested him, but also by US forces, who technically did not hold authority over that part of the camp, was also revealed. Faced with this strange and ominous example of collusion the UK government struggled to find an appropriate answer:

I … I would have to double-check… It is believed to be… I am not certain. (…) There were loads of people in the camp at the time… The US and the UK were sharing duties.

When pressed, after this monologue interrupted by flipping pages and shooting anxious glances, the representative of the government replied: “the punchline (sic) is, there was a sharing of duties by the UK and the US, yes.” Asked whether the camp was effectively, however, under UK authority, the answer was yes. Later on, when pressed by the Court a little more on the question of why the UK had not asked for derogations under European law, the representative replied: “On the question of Article 15, this, haha, er, haha way above my paygrade, I don’t need to, haha, get shouted at hereafter.” It became absolutely obvious at this stage that the declassification of Blackwatch document was a massive hurdle to overcome for the UK government, and answering for its behaviour in the early stages of the Iraq War was not something it was prepared for; an expectation was surely made that it would avoid the scrutiny of the ECHR, given the lapse in time since the arrest of Tariq Hassan, and domestic UK law requiring that inquiries be made in a timely manner (European law also stipulates that investigations must be made in a reasonable timeframe, and no independent investigation has ever been launched in the UK for the death of Tariq Hassan).

It is incumbent to the United Kingdom to face its own decisions (…) in time of war, as opposed to interpreting the Convention and later, the Geneva Convention in matters of convenience. 

More dismissively was the question of why Tariq Hassan, supposedly released from Camp Bucca three months before his death, was still carrying his UK-issued Camp Bucca ID tag with him when he died. Asked what the policy on ID tags were, the UK government replied, “we’ll check back on what the policy was (…) but my point is that it doesn’t prove anything about anything.  Contemporaneous evidence was that he was released. If stage agents are involved in the killing, we need more evidence. The theory that we detained the applicant as a hostage for his sought-after brother is not supported. Theories of UK responsibilities are being peddled.” Hassan, who, once again, was still detained in the “civilian area” (sic) of the camp after he was cleared in order to ensure his safety, was last seen and heard by UK forces, in a UK controlled area. The reason why Hassan would leave and be later executed while carrying his UK ID tag appears to be a coincidence to the United Kingdom. If the UK did not have ECA in Iraq, who did?

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“Saying ‘we’ll go to war, we’ll ignore the provision, and argue for lesser rights’ is not, respectfully, a position to take.”

The applicant closed the hearing, replacing the details of Tariq Hassan’s arrest, detention and death into the broader context – the accountability of crimes committed during the Iraq war, and the necessity to refer to existing bodies of law in order to ensure the application of the rule of law even in times of war. The applicant said, “it is not enough for the United Kingdom to answer ‘we will think about that question’, because that question is specifically what this hearing is about”. Truth is, not knowing – or pretending not to know – about war crimes can no longer stand in an era where classified documents are now at the core of a battle between legal specialists and governments for their declassification. Earlier than same week, Ben Emmerson, who had attended the Al-Nashiri, Abu Zubaydah v Poland hearing – called for right to truth and access to documents hidden for “national security purposes”. The retired judge Lord Gibson  just released a report proving the widespread use of torture by British intelligence forces in Libya. The declassification of Blackwatch is no different. Without said declassification and the obtention by the applicant, legal proceedings would have come to a grinding halt. It is incumbent to the United Kingdom to face its own decisions – in situations where it is an occupying power, a belligerent, or in complete collusion with a belligerent state – in time of war, as opposed to interpreting the Convention and later, the Geneva Convention in matters of convenience. The applicant was clear in asserting that there is no basis nor justification for the arrest and detention of Tariq Hassan under either European human rights law or IHL.

Without having lawfully attempted to extend its powers of criminal justice over the territory of Iraq as permitted by Article 15, the UK chose to act differently and carry out unilateral decisions made without the protection of the law. The circumstances of the death of Tariq Hassan are not clear, even after a two-hours long hearing; the discrepancies in the story, however, are addressing the core of the current climate of national security and foreign policy. There is no immunity in a state of war, and there is no escaping the scope of human rights law simply due to armed intervention. Contrary to popular belief and what is enforced at domestic level in both the United States and the United Kingdom, there are still instruments in place to provide accountability for the hundreds of thousands of Tariq Hassan’s across Iraq, Afghanistan, Somalia, Yemen, Pakistan. In the words of the applicant,

Saying “we will ignore those provisions, we will go to war, and argue for lesser rights” is not, we say with great respect, a position to take.  (…)  Engaging in armed conflict, with all the consequences that will flow, must be done in accordance with international law. The United Kingdom says that a derogation is a measure of last resort.  We say, respectfully, that engaging in armed conflict – or at least we hope – is a measure of last resort.

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.”