Poland taught a lesson, while we refuse to learn

On July 24, 2014, the European Court of Human Rights unanimously ruled that, beyond a reasonable doubt, Poland had violated the rights of Abd al Rahim al Nashiri and Abu Zubaydah under the European Convention on Human Rights by allowing their transfer to a secret CIA black site code-named “Quartz,” located in Stare Kiejkuty in northeast Poland, where they were detained, interrogated and tortured. (In 2011, capital charges were filed before a military commission at Guantanamo against Nashiri for his alleged primary role in the lethal attack on the USS Cole and other war crimes, and Abu Zubaydah, for years held at Guantanamo, has been detained at various sites for over 13 years, while never being charged.) The court—the first anywhere to rule on the existence of the CIA’s secret prisons—entered money judgments in favor of the two prisoners ($114,000 for Nashiri, $148,000 for Zubaydah), and also found that, at the time of Nashiri’s transfer from Poland, there was a “real risk that his trial before the (U.S.) military commission would amount to a flagrant denial of justice” and the risk of a death sentence.[1] The court further found that the Convention requires Poland to seek assurances from the U.S. “that (Nashiri) will not be subjected to the death penalty.” Poland’s request to appeal was rejected.

In February, 2015, Foreign Minister Grzegorz Schetyna announced that Poland would make the required payments, stating: “We will abide by this ruling because we are a law-abiding country….” Then, on March 31, 2015, Christian Lowe of Reuters reported that Poland’s government, in compliance with the court’s order, had directed an official note to U.S. authorities seeking assurances that he will not be executed. The Polish Foreign Ministry stated that it plans to seek further assurances that neither Nashiri nor Zubaydah would be exposed to a “flagrant denial of justice.”

This last request, if made, certainly will fall on deaf American ears. Zubaydah, after all, has been imprisoned for over 13 years, during which time he has neither been charged nor tried, nor has counsel even been assigned to him, despite his many requests. A March 27, 2015 piece by the Miami Herald’s Carol Rosenberg listed the 7 remaining prosecutions envisioned by war court prosecutors, and Zubaydah was not included. As for the military commission circus which has been prosecuting Nashiri since 2011, please refer to my e-book, My Week at Guantánamo’s War Court, and my various articles and blog posts which appear on this site. In sum, we have been inflicting “flagrant denial(s) of justice” on both men for years, and no basis exists for believing that we will stop.

Unlike Poland, the U.S.—which often trumpets its “exceptionalism”—seems unwilling to be taught. When, at long last, the Senate Select Committee on Intelligence (SSCI) last December was able to release the redacted Executive Summary (ES) for its 6,700 page report on its study of the CIA’s Detention and Interrogation Program, it provided a rare chance for Americans to learn of the atrocities perpetrated by the CIA, in secret but in our name. However, four polls following issuance of the ES reported that from 51 to a shocking 59 per cent consider the CIA’s treatment of suspected terrorists justified. This is true, even though neither the 100-plus page statement of the SSCI minority’s views nor the similarly lengthy response by the CIA denies that we tortured plenty of people.

Yet the U.S. representative to the UN Committee Against Torture declared last November that: “We believe that torture, and cruel, inhuman and degrading treatment and punishment are forbidden in all places, at all times, with no exceptions.” The chasm between this statement and what the polls revealed may simply highlight the difference between an aspirational commitment by the Obama Administration and what most of our people really think. Even so, it brings to mind Ambrose Bierce’s definition of “hypocrite” in his famous “The Devil’s Dictionary”: “One who, professing virtues that he does not respect, secures the advantage of seeming to be what he despises.”

[1] The commissions, at the time, were governed by Bush’s Military Order of November 13, 2001 and Rumsfeld’s Military Commission Order No. 1; in June, 2006 the U.S. Supreme Court in Hamdan v. Rumsfeld, 548 U.S. 557, 625, ruled that they “lacked power to proceed,” since their procedures violated the Uniform Code of Military Justice and Common Article 3 of the Geneva Conventions. As a result, Bush signed the Military Commission Act (MCA) of 2006, and President Obama approved a reformed MCA of 2009, which applies to Nashiri’s prosecution. See the main text for my opinions on the Nashiri case.

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