2011-06-07 Poland, the CIA and the Abd al Nashiri case [Update]

The role of European countries in the rendition, detention and torture of alleged terrorists has been scrutinized numerous times. The most comprehensive overview was compiled by Swiss politician Dick Marty on behalf of the Council of Europe in 2006. This report is freely available on the internet.

This document describes a network of European countries facilitating extrajudicial measures taken by the CIA. If these allegations can be proven, they are in violation of national and international law.

In the above report, two European countries are said to have hosted so called "black sites" in which detainees would be subject to torture, Poland and Romania. The main arguments supporting these allegations are flight tables, from which can be proven that aircraft connected to the CIA landed at airports which are not normally used for international traffic of this scale.

These assumptions are also supported by eye witness accounts of airport employees, detainees, and others with a knowledge of these sites.

This information has been in the public domain for years, but there have not been any serious legal consequences for those involved. Even though a parliamentary committee investigation in Lithuania concluded that there were at least two black sites in the country, this did not lead to a prosecution. (Lithuania is not mentioned in the Marty report as these prisons were in operation in 2005 and 2006, during and after the report was written).

Of these three countries, Poland's role has been scrutinized most in the international press:
http://news.bbc.co.uk/1/hi/world/europe/6212843.stm
http://www.guardian.co.uk/uk/2007/jan/04/politics.usa
http://www.spiegel.de/international/world/0,1518,621450,00.html
A criminal investigation was opened by Warsaw prosecutors in 2008, but appeared to proceed at a snail's pace.

These things quickly changed when on May 7th, New York based Open Society Justice Initiative submitted an application with the European Court of Human Rights to open proceedings against Poland on behalf of Abd al Nashiri, who is currently held in Guantanamo. Al Nashiri has been charged with planning the attack on USS Cole and may face the death penalty. He was allegedly held and tortured in a CIA facility near the village of Stare Kiejkuty in Masuria from December 2002 to June 2003.

The charges brought against Poland include torture, unlawful detention, transfer to a country where al Nashiri could be subject to an unfair trial and the death penalty, and a failure to investigate the case.

A few days later, the criminal investigation into alleged CIA detention facilities on Polish ground which had been active since 2008 suddenly came into the spotlight of national media again when Warsaw prosecutor Jerzy Mierzewski was abruptly removed from the case. According to documents obtained by Gazeta Wyborcza, and to a source with knowledge of the investigation, he had planned to file charges against leading political figures. These included breach of the constitution, false imprisonment and assistance in crimes against humanity.

According to Dr Adam Bodnar, a legal expert affiliated with the Helsinki Foundation for Human Rights, these charges most likely evolved around two aspects, whether the government allowed for the creation of an extraterritorial facility, and whether those detained in such a facility were subject to torture. This is what he said in a recent interview:

"Wcześniej była informacja o możliwości postawienia zarzutu, że na terytorium Polski doszło do tortur, i że władze polskie mogą za to ponosić odpowiedzialność."

"Earlier, there was information that it could be possible to file charges, that there was torture on Polish territory and that Polish authorities could be liable."

"Jeżeli była baza CIA a nie było tortur, to i tak to jest naruszenie prawa międzynarodowego i naszych standardów konstytucyjnych. Nie można na terytorium naszego kraju tworzyć baz eksterytorialnych bez umowy międzynarodowej. Nie można nikogo przetrzymywać bezprawnie bez wyroku, bez postanowienia naszego sądu. Jest to standard konstytucyjny, że jeżeli kogoś pozbawiamy wolności to musi być decyzja sądu."

"If a CIA base existed and there was no torture, this is also a breach of international law and of our constitutional standards. It is not possible to create an extraterritorial base on our territory without international agreements. One cannot detain anyone without legal basis and without a sentence, without a decision by our courts. This is a constitutional standard, if we deprive someone of his freedom there has to be a court decision."

Given Poland's history, either of these scenarios is likely to cause a strong reaction from the Polish public who still remember losing their territory to foreign powers and being victim of crimes against humanity.

In the present situation, Poland is faced with a dilemma - on one hand it is being sued at the European Court of Human Rights for a failure to investigate, and on the other hand any investigation could lead to serious consequences on a variety of levels.

It is now crucial that these two open investigations into Polish complicity in extrajudicial detention and rendition remain in the spotlight of the press, in particular as Polish daily newspaper Gazeta Wyborcza is now itself facing legal actions for publishing classified information. The matter is currently under-reported.

The USA are one of Poland's key allies. Even though a nuclear defense shield that was promised to Poland did not materialize (according to US embassy cables published by Wikileaks the missiles were delivered in 2008, but without live ammunition), Poland plans to extend its military collaboration with the USA as a protection against Russia. One of the reasons for Barack Obama's visit to Warsaw last week were negotiations about the deployment of F16 fighter jets on Polish soil.

For previous coverage see http://wlcentral.org/category/content-topics/cia-prison-poland

Update:

Polish newspaper Rzeczpospolita published facsimiles of the flight plans which are now being or not being used as evidence in the court case:

http://www.rp.pl/galeria/2,2,291762.html
http://www.rp.pl/galeria/2,3,291762.html

GLF seems to stand for "Gulfstream", which is one of the types of plane used by the CIA, and the flights in question are labeled "State". According to the dates in the right hand side column, there were very few flights to and from Szymany.