On Bitter Satisfaction

The verdict was more forceful than expected. On July 24, 2014 the European Court of Human Rights in Strasbourg handed down two unanimous rulings in the cases of Al Nashiri v. Poland and Husayn (Abu Zubydah) v. Poland. The cases concerned the extraordinary rendition by the CIA of two terrorism suspects to a secret detention site in Poland. Both men alleged that in December of 2002, during the early phase of the Bush administration’s “War on Terror,” they were secretly transferred to Poland, where they were tortured while being held, for nine and six months respectively, in an unacknowledged detention facility.

Having examined the evidence, including expert statements and findings of several international inquiries (but not documents from the Polish investigation, which the Polish government withheld), the Court found that the applicants’ allegations were sufficiently convincing. It ruled that by “acquiescing to and conniving in the CIA’s High Value Detainee program,” the Polish state violated several articles of the European Convention on Human Rights and Fundamental Freedoms, notably Article 3, which prohibits torture and inhuman or degrading treatment or punishment.

The Court noted that the interrogations carried out at the facility in Stare Kiejkuty were the “exclusive responsibility of the CIA.” “It was unlikely,” the holding reads, “that the Polish officials had witnessed or known exactly what had happened inside the facility.” Their culpability, according to the Court, is in their failure to ensure that persons under Polish jurisdiction were not subjected to treatment prohibited by the Convention. The Court ruled also that the Polish investigation into the allegations of ill-treatment was ineffective, and that the applicants had thus been denied an “effective remedy.” Most observers had expected that the judges would condemn the inadequacy of the Polish proceedings in the case, which have been conducted in secret and without conclusion for the past six years. But the far-reaching nature of the rulings surprised commentators and seems to have caught the Polish government off guard. The Court ordered Poland to pay the men, who are presently being held in Guantánamo, damages in the sum of €100,000 each, and additionally €30,000 in costs and expenses to Al-Nashiri. Members of the Polish government have already hinted at the possibility of appeal.

“I receive this verdict with bitter satisfaction,” said Mikolaj Pietrzak, one of Al-Nashiri’s attorneys. He noted that the Polish state could have avoided the judgment by conducting an effective investigation itself, but regrettably chose not to. Now the Court’s decision carries major implications for other European states that collaborated with the Bush administration’s secret programs (related cases against Lithuania and Romania are pending). But to regard it as the final settling of accounts in the nearly decade-long debate concerning Poland’s co-responsibility for torture would be a mistake.

Human rights advocates, including lawyers directly involved in the case in Poland, rightly praised the decision as “historical,” “the best possible,” and a “comprehensive condemnation of the CIA, the black site program and Poland’s role in it.” In the words of Anne Brasseur, the President of the Parliamentary Assembly of the Council of Europe, the verdict is a sign of progress in the “onward march of truth.” But to stick with Brasseur’s phrase, truth still has some way to go. In the United States, no court has ever acknowledged the program of extraordinary renditions. Similarly, Polish authorities never admitted that they hosted a black site prison, and some of the politicians who condoned its establishment still enjoy thriving careers while continuing to refuse to concede that Poland’s complicity with torture may constitute a problem.

In the US Senate, a 6,000-page report on CIA detention and interrogation practices awaits declassification. In Poland, where I have closely followed the issue since 2005, the status of documents and other evidence in the case is shrouded in mystery. We do not know who exactly authorized the landings of rendition flights, who granted the CIA access to the remote government-owned villa and on what terms, who took care of on-site logistics, and who assisted with the cover-up. We do not know either what happened with the $15 million in cash that the CIA allegedly paid for Polish cooperation.

Ever since the Washington Post and Human Rights Watch revealed in November of 2005 that the US chose Poland, Romania, and Lithuania as its partners in the interrogations of terrorism detainees, the Polish public has encountered persistent obfuscation from its leaders. The reticence of officials was remarkably consistent from the left to the right of the political spectrum. It was on the watch of the former President Aleksander Kwaśniewski and the former Prime Minister Leszek Miller that the CIA flew terrorism suspects in and out of Poland. Both of them have a long record of public denials and assertions that whatever may have happened, they only ever acted in the best interest of the state. Kwaśniewski and Miller are erstwhile colleagues in the party that passes in Poland as the mainstream “left,” but on this issue (and this issue only), they have found support across the political spectrum all the way to the far right.

This state of official denial has persisted in spite of several high profile international inquiries, notably two Council of Europe reports on extraordinary renditions in Europe complied by the Swiss Senator Dick Marty and the Fava Report issued by the European Parliament’s body, which investigated the use of European countries by the CIA for secret prisoner operations. Following a political shift in Poland in 2007, the then-new Prime Minister Donald Tusk initiated a domestic criminal investigation to determine if public officials abused their powers by allowing the establishment of an extraterritorial zone under the control of another state’s jurisdiction. It is this investigation that has now been condemned by the European Court.

And here we are now, in 2014, in a paradoxical situation that has been brewing for a long time. On the one hand, international law carries an absolute prohibition of torture. The principled rejection of inhuman and degrading treatment or punishment by democratic states is as close to a universal international consensus as it gets. Practice may fail to live up to principle but that does not invalidate the principle. On the other hand, however, we have a democratic government in Europe, which is sending a clear signal to its constituents that sometimes torture is not only permissible, but it may be in fact the right thing to do.

“I wish this issue [Poland’s cooperation with the CIA] was never leaked,” said Polish Foreign Minister Radoslaw Sikorski in a TV interview on the day the Strasbourg judgment was announced. “There are things between allies, and between secret services, which ought to remain secret.” He also warned against “excessive sympathy for the terrorists who pretend to be victims.” It is, of course, impossible to say what proportion of Poles would fully concur. However, an unscientific survey of online comments section of Polish papers on the left and on the right suggests that there is no shortage of those who declare that terrorists deserved the treatment they got and worse, and who hope that Poland will reject the Strasbourg judgment and never pay the damages.

No matter what happens next, people who hold such views will not change them overnight, and will not change them in response to the ruling of a Court perceived by many as distant and ideologically suspect. But what could begin the difficult work of delegitimizing such discourse would be a strong political response coming from the government itself.

Józef Pinior, an independent liberal senator and former Member of the European Parliament, who stood out among Polish politicians as the most outspoken critic of the policy of denial, noted at a press conference that what is needed is “a very clear declaration of the Prime Minister that Poland will not tolerate violations of international law on its territory, that there will be no torture and no private prisons.” He called for a swift completion of the domestic investigation and added that “generations of Polish opposition fought for Poland to be governed by the rule of law, for freedom from torture in prisons, and for freedom from arbitrary detention by the political police.” Pinior’s long-held position has been judicially vindicated in Strasbourg, but surely he and other Poles outraged by what the government did in their name would have preferred for justice to be served closer to home. The European Court has offered satisfaction, but the bitterness is certain to linger.