Charging Poland for complicity in alleged US crimes

On Dec. 2 the European Court of Human Rights held an unprecedented fact-gathering hearing on Polish complicity in the U.S.’s extraordinary rendition program, in which terrorism suspects in U.S. custody were secretly flown to other countries for interrogation.

The hearing, conducted without press or public, was an unusual event and signalled the court’s determination to scrutinize the role of the Polish authorities in the torture and secret detention of two CIA prisoners: Abu Zubaydah and Abd al-Rahim al-Nashiri. Abu Zubaydah, whom the U.S. government no longer asserts was an al-Qaeda member, was the experimental subject of the CIA’s development of its torture regime in 2002, but has never been charged by the U.S. with any crime. Al-Nashiri faces a military trial next year in Guantánamo Bay.

For over five hours, experts and witnesses — who on the court’s request must at present remain anonymous — spoke about Poland’s role in the CIA’s black site network. The court ruled that their statements could be used the next day at a public hearing. Their testimony was unequivocal. Polish authorities had known of the site, had known it was a secret prison, and had known that a harsh regime of interrogation was in force there. They had known when the site opened and when it closed, had known the number and identity of the planes transporting prisoners into and out of the site, and had assisted in these transfers, and in security for the prison site itself, in numerous practical ways. As one witness stated, “Poland not only should have known, Poland in fact did know” that the CIA’s torture program was operating on its territory.

The witnesses added authority and nuance to the already overwhelmingly detailed case put together by the two prisoners’ legal teams. Comparison of key passages in declassified U.S. government documents provided the transfer date when Abu Zubaydah and al-Nashiri arrived in Poland. Invoices published by Reprieve, a nonprofit dedicated to protecting the rights of prisoners, laid bare the contracting of the transfer plane. Sworn testimony and evidence published in a civil case in New York (Richmor Aviation v. Sportsflight Air) demonstrated beyond reasonable doubt that this plane was contracted by the U.S. government for the express purpose of transporting prisoners. As summarized in a brief in that case, “it was ultimately learned that the flights [under this contract] would be going to and from Guantánamo Bay and would be used for assorted rendition missions.” One of these flights took Abu Zubaydah and al-Nashiri from Thailand to Poland, arriving on board a rented Gulfstream jet identified as N63MU at Szymany airbase on Dec. 5, 2002. No credible alternative to this narrative has ever been proposed, nor, given the numerous corroborating sources, is it possible to conceive that one ever could be.

So what do the Polish authorities have to say about this? In 2008 — several years after the outline of these events had first surfaced — they launched a pre-trial investigation into what had happened to determine whether Polish officials could face charges. Five years on, the investigation has had no tangible result. Prosecutors have been removed in mysterious circumstances and the case file itself has been subjected to an unexplained migration from one town to another. Media reports that a former head of Poland’s intelligence services had been indicted last year were never substantiated. Every aspect of the investigation is covered by one or another regime of secrecy. Lawyers for the two prisoners have now revealed that they were each granted less than four hours of access to the classified portion of the case file in the last two years. They also pointed out that there had been no change in the number of witnesses examined by the prosecutor between 2012 and 2013, and drew the conclusion, from this and other data, that the investigation stalled some time ago and failed to restart. Its endless prolongation, with neither progress nor conclusion apparent, precluded any result: If it were to be closed, this decision could then be appealed, but as long as it goes on, no mechanism exists to review it.

For their part, the Polish government insisted that the investigation was characterized by dynamism and effectiveness. By the end of public hearing this invocation had begun to resemble a kind of magic spell, devoid of any real-world content or evidential basis, and relying for its force merely on endless repetition. It would be a “paradox,” said prosecutor Janusz Sliwa, if the investigation was assessed negatively “just when it was proceeding effectively.” But the true paradox was that the more the government insisted on the effectiveness and transparency of the investigation, the less evidence they could adduce to support their position. Artur Nowak-Far, Undersecretary of State in the Polish Ministry of Foreign Affairs, told the BBC World Service that the investigation was “effective” and would be concluded “soon.” He knew it was effective because the prosecutor had told him so; asked what “soon” meant, he replied “difficult to say.” In his closing speech to the court he said he was “convinced that Poland did not violate the [European] convention”; but when asked in interview if the facts might turn out to be true — if Poland had indeed knowingly hosted a secret jail — he could only say “at present I’m not very able and do not even have a knowledge which would make it possible for me to somehow qualify it.” That, then, is the fruit of five years of effective and transparent investigation.

Other members of the Polish government have been less circumspect, however. "Of course, everything took place with my knowledge,” former President Aleksander Kwaśniewski said. “The decision to cooperate with the CIA carried a risk, that Americans would use unacceptable methods. But if a CIA agent brutally treated a prisoner in a Marriott hotel in Warsaw, would you charge the directors of that hotel for the actions of that agent?"

The court will issue a judgement on the culpability of Mr. Kwaśniewski’s “hotel” next year.