Court Appeal Highlights Poland’s Role in CIA Torture Program

On September 28, a district court in Szczytno, Poland, rejected an appeal by the London-based human rights organization REDRESS to investigate human rights abuses against Mustafa al-Hawsawi, a victim of CIA rendition, current Guantánamo detainee and Saudi national. The CIA and Pakistani intelligence captured al-Hawsawi and 9/11 mastermind Khalid Sheikh Mohammed in Rawalpindi, Pakistan, on March 1, 2003. Al-Hawsawi, along with Khalid Sheikh Mohammed, is one of the five defendants in the 9/11 case: He’s alleged to have been a financier of the terrorist attacks. However, according to the US Senate report on the CIA torture program released in December 2014, CIA officials said that al-Hawsawi “does not appear to the [sic] be a person that is a financial mastermind.”

Although REDRESS lost its appeal, it has had a lingering impact: It raises further questions about the CIA torture program, including details about al-Hawsawi’s confinement and Poland’s role in the program. On a larger level, it underscores how byzantine layers of secrecy impede accountability and justice.

The appeal comes on the heels of two crucial decisions made by the European Court of Human Rights. In July 2014, Poland became the first country in the European Union to be held accountable in court for its role in the CIA torture program. On July 24, 2014, the European Court of Human Rights ruled in two landmark decisions – Al-Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland – that the Polish government violated the European Convention on Human Rights for cooperating with the CIA torture program and allowing two men – Abu Zubaydah and Abd al-Rahim al-Nashiri – to be secretly detained and tortured on its soil. Both Zubaydah and al-Nashiri are currently detained in Guantánamo with al-Nashiri currently facing trial by military commission for his alleged mastermind role in the USS Cole bombing in 2000.

A court factsheet said, “The Court found that Poland had cooperated in the preparation and execution of the CIA rendition, secret detention and interrogation operations on its territory and it ought to have known that by enabling the CIA to detain the applicants on its territory, it was exposing them to a serious risk of treatment contrary to the Convention.” Among the legal obligations with which Poland failed to comply are the convention’s prohibitions on torture and inhuman or degrading treatment, as well as the right to liberty and security. Torture also violates international law, particularly the UN Convention Against Torture – to which the United States is a party.

The Polish government appealed the decision in October 2014. However, the court rejected the appeal and confirmed that Poland was complicit in the CIA’s torture program from 2002 to 2003. As part of the July 2014 ruling, the court ordered Poland to pay each of the men 100,000 euros (approximately $111,000) – along with an extra 30,000 euros (around $33,500) to Zubaydah to cover his legal fees. The Polish government complied.

CIA Black Site in Poland

Poland was an important accomplice in the CIA’s global archipelago of secret torture prisons. On page 96, the Senate report says, “While the CIA held detainees from 2002 to 2008, early 2003 was the most active period of the CIA’s Detention and Interrogation Program.” Of the 119 detainees held by the CIA, “53 were brought into custody in 2003, and of the 39 detainees” who were subjected to CIA torture techniques, “17 were subjected to such techniques between January 2003 and August 2003. The CIA’s enhanced interrogations during that time were primarily used at DETENTION SITE COBALT and DETENTION SITE BLUE.”

“Detention Site Blue” (or “Quartz”) is the CIA code name for Stare Kiejkuty, a village in northern Poland where the CIA interrogated people in a secret Polish intelligence facility. After that sentence lies a footnote – footnote 557 – that points to “detainee reviews and reports” for numerous detainees, including Khalid Sheikh Mohammed, Ramzi bin al-Shibh and Mustafa al-Hawsawi.

Kyra Hild, a REDRESS lawyer working on al-Hawsawi’s case, explained to Truthout that the passage suggests al-Hawsawi was possibly detained in Poland. She said, “Those 17 [detainees] were either subjected to those techniques in Afghanistan or in Poland or in both, based on our reading of the Senate report.” In her statement to the court, Hild said, “It is our assessment that Mr. al-Hawsawi was subjected to enhanced interrogation techniques in both DETENTION SITE COBALT and DETENTION SITE BLUE during this time.”

The Senate report also mentions that “rectal exams” – in actuality, anal rape – “were conducted with ‘excessive force’ on two detainees in DETENTION SITE COBALT,” which is the code name for a secret, dungeon-like CIA prison called the “Salt Pit” in Afghanistan. Al-Hawsawi was one of those detainees, and he “was later diagnosed with chronic hemorrhoids, an anal fissure, and symptomatic rectal prolapse.” He was also subjected to water dousing, which is similar to waterboarding. Detainees in the Salt Pit were subjected to numerous forms of torture, such as forced nudity (including walking around naked in humiliation, and being hosed down in the nude), being subjected to loud music, sleep deprivation, stress positions and waterboarding.

In 2014, shortly after the Senate report was released, former Polish President Aleksander Kwasniewski and former Prime Minister Leszek Miller acknowledged that they allowed the CIA to operate a black site on their country’s soil. “The U.S. side asked the Polish side to find a quiet site where it could conduct activity that would allow to effectively obtain information from persons who had declared a readiness to cooperate with the U.S. side,” said Kwasniewski, according to The Associated Press. “We gave our consent to that.” The CIA operated the secret prison in Poland from December 2002 to autumn 2003. Kwasniewski said the site was part of “deepened” intelligence cooperation between Poland and the United States in the war on terror after the US asked for Polish assistance. At the time, as the CIA began detaining more people, the agency “required a better location” than Cambodia or Thailand, according to The Washington Post. The proposed Cambodia site, which the CIA rejected, was infested with snakes, while the site the agency used in Thailand was not big enough to hold the increasing number of detainees.

The European Court of Human Rights found in Al-Nashiri v. Poland that “Polish authorities followed a special procedure for the landing of CIA rendition flights in Szymany,” a village in northeastern Poland with a regional airport. First, rendition landings “were preceded by a telephone call to Szymany airport” from the Border Guard or a military intelligence official informing the airport that the US aircraft was coming. The army was also informed at the same time and “two military officials” would be on duty at the time. Before “the landings two high-ranking Border Guard officers always appeared in the airport.” The Border Guard ordered that only “military staff and services” could handle the US rendition plane, while “airport authorities should not approach the aircraft.” The “airport manager was instructed to adhere to strict protocols to prepare for the flights, including clearing the runways of all other aircraft and vehicles, and making sure that all Polish staff were brought in to the terminal building from the vicinity of the runway, including local security officials and airport employees.” Airport personnel’s only role was “to complete the technical arrangements after the landing.”

Rendition planes were treated like military aircraft and “not subjected to customs clearance; the military character of the flight was determined by the Border Guard and the relevant procedure was to be followed by the airport staff.” Military officers and Border Guard secured the perimeter and airport grounds. The plane landed at Szymany, taxiing to a halt “at the far end of the runway” out of a visible range “from the four-story terminal control tower; it always parked with the doors facing towards the wood.” Passengers “never entered the airport.” Border Guard officers “approached the aircraft first,” while the “landing team” would wait “at the edge of the runway, in two or three vans with tinted windows, bearing the Stare Kiejkuty army unit’s registration plates; the vans, with their engines often running, were parked in close proximity to the aircraft.” After Border Guard officers drove away, the tinted-windowed vans “drove up to the aircraft and then drove away” and “the planes left shortly afterwards.” Airport landing fees were paid in cash “by a Pole (or a person who spoke Polish very well) the next day and were considerably higher – several times more – than those normally applicable (between 2,000 and 4,000 euros (EUR) per plane), including an amount for ‘non-standard handling.'”

There were “multiple, ongoing difficulties” between the United States and Poland over the program, according to the Senate report. Poland proposed writing a memorandum of understanding that defined “the relative roles and responsibilities of the CIA” at the secret prison, which the CIA refused to sign. Four months after the CIA began holding detainees at Stare Kiejkuty, Poland rejected additional transfers, including that of Khalid Sheikh Mohammed. However, that decision was reversed after the US ambassador “intervened with the political leadership” of Poland “on the CIA’s behalf.”

The following month, the CIA handed Poland millions of dollars in cash. After that money transfer, officials said that Poland “was now flexible with regard to the number of CIA detainees at the facility and when the facility would eventually be closed.” Kwasniewski denied the tie between the CIA prison and the money, which he said was used for other intelligence services. The CIA also gave cash payments to other foreign governments, such as Romania, Thailand and Afghanistan, to host secret torture prisons.

However, both Kwasniewski and Miller claimed they never authorized the torture or abuse of detainees. According to The Associated Press, Kwasniewski “insisted he had no knowledge of what took place inside” the secret prison. Yet, Kwasniewski and Miller condemned the release of the Senate report, “saying it hurt the interests of the United States, and of its allies at a dangerous time for international security. They said it also could undermine confidence in America,” according to The Associated Press. In fact, the Senate report mentions that Polish officials were “extremely upset” when details of the CIA torture program were leaked by US government sources and “deeply disappointed” in not having had more warning before then-President George W. Bush publicly acknowledged the program’s existence in September 2006. The CIA described the disclosure as a “serious blow” to the bilateral relationship between the United States and Poland.

Secrecy Abounds

As usual, because this issues deals with a CIA program, much information remains hidden behind a wall of government secrecy. Even the Senate report on the CIA torture program hardly scratches the surface. What was publicly released was a 500-page summary of the entire 6,000-page document. That means more than 90 percent of the report’s actual contents remain classified.

“The issue of state secrets is a huge problem in all of the jurisdictions where any attempts are being made toward accountability or seeking to obtain and access information about what happened as part of the CIA program,” REDRESS’s Hild told Truthout. “And that’s the case in the context of the investigation in Poland where there’s very little access to what’s actually being done.”

The European Court of Human Rights noted and criticized the lack of transparency about what happened during the CIA torture program, along with the Polish government’s failure to cooperate with the court. In the Al-Nashiri v. Poland decision, the court noted, “The transfers to unknown locations and unpredictable conditions of detention were specifically designed to deepen their sense of disorientation and isolation. The detainees were usually unaware of their exact location.”

Al-Nashiri is forbidden, by strict US government classification rules, from speaking publicly about his experience in CIA secret prisons. The same goes for al-Hawsawi, whose thoughts, memories and experiences in CIA secret prisons remain classified as state secrets. While Majid Khan was able to speak publicly about the torture he experienced at the hands of the CIA, other detainees are not. This is likely because Khan’s case is close to sentencing after striking a plea bargain with the US government in 2012, in which he pleaded guilty to terrorism-related charges in exchange for serving as a government witness against other detainees.

A month after the Senate report’s release, the CIA issued new classification rules that allow disclosing “general allegations of torture” and “information regarding the conditions of confinement.” However, names of CIA employees or contractors and locations of secret prisons – along with other crucial details – remain classified. In September 2015, the US government “blocked the release of 116 pages of defense lawyers’ notes detailing the torture that Guantánamo Bay detainee Abu Zubaydah says he experienced in CIA custody,” according to Reuters. Joe Margulies, Zubaydah’s lead defense attorney, told Reuters, “We submitted 116 pages in 10 separate submissions.” He said, “The government declared all of it classified.”

The court in the Al-Nashiri v. Poland case criticized “the Polish Government’s failure to cooperate with the Court in its examination of the case,” along with “the extreme secrecy surrounding US rendition operations” and “restrictions on the applicant’s communication with the outside world.” Detainees in CIA secret prisons were held in continuous isolation and cut off from the rest of the world, which meant they were often unaware of where they were being detained. This was intentional. As the court noted, “The transfers to unknown locations and unpredictable conditions of detention were specifically designed to deepen their sense of disorientation and isolation. The detainees were usually unaware of their exact location.” As a result, the court had a hard time getting information about the program and relied on information “obtained through the international inquiries, considerably redacted documents released by the CIA, other public sources and evidence from the experts and the witness.”

In her court statement, Hild said, “Mr. al-Hawsawi and his military counsel have been precluded by a highly restrictive classification regime from participating in proceedings outside the USA, as any information from Mr. al-Hawsawi (and therefore his military counsel) on these matters is automatically classified, accessibly only to those with high-level security clearance.” She added that REDRESS is “prohibited from meeting or speaking with Mr. al-Hawsawi to discuss his case and his military counsel are prohibited from confirming or denying any information that details aspects of the CIA’s Rendition, Detention and Interrogation Program and that has not been explicitly declassified by the USA Government.”

US Navy Commander Walter Ruiz, defense attorney for Mustafa al-Hawsawi in the military commissions, explained to Truthout that when it comes to working with groups like REDRESS, his defense team pays attention to their cases but is limited in terms of what they can do. “We’re basically interested observers,” he said, “but we can’t really engage in it in terms of weighing in on strategy or any of those things.” If a “favorable development” happens in one of those cases, Ruiz’s team will look at it “and decide if it’s something we can use in our court.” However, Ruiz said he “cannot confirm nor deny that they’re even in the right ballpark” because he and other defense lawyers are barred from publicly confirming or denying the locations of CIA black sites and other aspects of the torture program relevant to their case. Attorneys in the military commissions can mention the code names of the sites but not the “locations or geographic regions,” according to Ruiz. In the Senate report, numerous names, locations and other chunks of information are blacked out.

What makes the system of secrecy in the military commissions even more bizarre is the fact that even publicly available reports of torture and other details of the CIA torture program cannot be discussed in the commissions, nor confirmed or denied by the defense attorneys. Therefore, even if it’s publicly known that Poland was involved in al-Hawsawi’s rendition and possible torture, defense attorneys like Walter Ruiz cannot publicly comment on it. This is because, under the government’s rules, just because a piece of classified information makes its way into the public domain – via, say, a leak to the press or a medium like WikiLeaks – that does not mean it’s automatically declassified.

“There are people out there who have no responsibility or duty to safeguard information,” Ruiz said. “So they can report on it; they can talk about it. But anybody with a government clearance has gone through a process where you have to incur duties and responsibilities not to reveal that information.”

Ruiz added, “Even though … there may be information in the public domain about specific names of specific countries, it hasn’t been officially declassified. There’s been no classification authority, that I’m aware of, that has comes out and said, ‘This information is no longer classified.'” Ruiz also mentioned that under the US government’s analysis “somebody that has access to classified information commenting on that could confirm, in fact, it was a place…. By virtue of the access to the information that we have, we are in a position to maybe lend more credibility to someone who may be attempting to find that information.”

That is why Ruiz and other defense lawyers cannot name specific locations: Doing so would confirm “that there is something to discuss,” Ruiz said. This byzantine system of secrecy reveals how the military commissions mock the notion of “justice.”

N313P: The Rendition Plane

From September 20 to 25, 2003, a white, CIA-owned Boeing 737 executive jet with registration number N313P flew a rendition circuit that stopped in Afghanistan, Poland, Romania, Morocco and Guantánamo Bay. N313P picked up several “high-value detainees” – Khalid Sheikh Mohammed, Walid bin Attash, Abu Zubaydah, Ramzi bin al-Shibh, Abd al-Rahim al-Nashiri and Mustafa al-Hawsawi.

According to flight data collected by the Rendition Project and Associated Press, N313P picked up al-Hawsawi from the CIA-run Salt Pit prison in Kabul, Afghanistan – where he was first detained – on September 21, 2003. The night before, the aircraft left its home base at Kinston Regional Jetport in North Carolina, flew to Washington Dulles International Airport, and, the next morning, flew through Prague and then Uzbekistan before landing in Afghanistan. The day after picking up al-Hawsawi, on September 22, N313P flew to Szymany, Poland, where it picked up Khalid Sheikh Mohammed, Walid bin Attash and Abu Zubaydah, who were detained at the CIA’s black site in Poland. Afterward, the aircraft flew to and dropped off Mohammed and bin Attash at the CIA’s secret prison in Bucharest, Romania. Out of Romania, N313P flew to Rabat, Morocco, and the CIA picked up Abd al-Rahim al-Nashiri and Ramzi bin al-Shibh, who were flown to the country from Poland in June 2003. Once al-Nashiri and al-Shibh were on board, the plane flew to Guantánamo Bay, landing there in the evening of September 23.

N313P transferred other detainees in rendition flights. On January 8, 2004, N313P flew Hassan bin Attash and Ali al-Hajj al-Sharqawi from Jordan – where they were tortured by Jordanian intelligence – to the Salt Pit in Afghanistan. The aircraft also flew Ethiopian national and British resident Binyam Mohamed to the Salt Pit prison in Afghanistan on January 22, 2004, after he was detained and tortured – which included beatings and cutting his genitals with a scalpel – at a CIA black site in Morocco for 18 months between 2002 and 2004. He spent four months in the Salt Pit until he was transferred to Guantánamo Bay in May 2004 and released on February 23, 2009. On January 24, 2004, Khaled al-Masri, a German citizen of Lebanese origin, was flown on the same aircraft from Skopje, Macedonia, to Kabul through Baghdad. He was detained in Afghanistan for four months until the CIA realized they had the wrong person and sent him back to Europe. In 2012, the European Court of Human Rights ordered Macedonia – which is not a European Union member – to pay al-Masri 60,000 euros (approximately $67,374) in reparations for erroneously arresting and handing him over to the United States.

In September 2015, al-Masri gave his first public interview to The Washington Post. Speaking about his experience in the Afghanistan Salt Pit prison, al-Masri said, “I have been humiliated, insulted and threatened, also stripped naked. There were beatings during the interrogations. I wasn’t in a real cell; it was very dirty. I had one plastic bucket as toilet; the food and water was dirty.”

Al-Masri said he received no apology, explanation or compensation “from the US or Germany. I feel that my family and I actually have been punished instead. Because I spoke up after my return, went to the media and requested an explanation.” As for the Macedonia reparations, “I did not ask them to exchange what has happened to me for money. I want to have answers from Macedonia and not money. Why did Macedonia decide to stop me? Have they informed the Germans? All these are questions I need to know [the answers to].”

Between March 6 and 14, 2004, N313P flew a global circuit with stops in Libya, Diego Garcia, Thailand, Afghanistan and Iraq, transferring four detainees in rendition flights between different locations. According to the Rendition Project, the flight rendered “Abdel Hakim Belhadj and Fatima Bouchar from Thailand to Libya (via a stopover in Diego Garcia), before almost certainly rendering two further detainees Yunus Rahmatullah and Amanatullah Ali from Iraq to Afghanistan.” That was N313P’s last rendition flight.

The CIA owned N313P through various shell companies at different points – Stevens Express Leasing, Premier Executive Transport Services, and Keeler and Tate Management. N313P was “operated by the nominally independent company, Aerocontractors, which in fact worked exclusively for the CIA,” according to the Rendition Project. The Boeing-owned company Jeppesen Dataplan provided logistical support and trip planning services for several rendition flights. One of those services included filing dummy flight plans to disguise trips to Poland and Romania.

Even if al-Hawsawi was not actually detained in Poland, the country still aided the CIA rendition flight he was on – N313P. Hild told Truthout that this information alone is enough to hold Poland accountable. “Even if he was transferred through Poland, the European Court of Human Rights and international law makes it clear that if a state is enabling the transfer of these detainees,” it is still violating international law, Hild said.

In Al-Nashiri v. Poland, the European Court of Human Rights concluded that Poland violated Article 3 of the European Convention on Human Rights, which prohibits torture, because it enabled the CIA to torture people on its own soil and allowed the transfer of detainees from its territory “despite the existence of a real risk” that they would be tortured.

“When they know that there is that real risk then you can’t allow such travel,” Hild said. As the court noted, “Poland knew and should have known about the CIA extraordinary rendition program, the existence of the ‘black site’ in Stare Kiejkuty and torture and inhuman and degrading treatment to which the CIA had subjected ‘High-Value Detainees’ as part of its program.”

REDRESS is also calling for an investigation into Lithuania’s role in Mustafa al-Hawsawi’s rendition. Lithuania (code-named “Violet” by the CIA) is another country to which al-Hawsawi was transferred. He was transferred to Guantánamo in September 2006 after spending three years detained and tortured in various CIA black sites.

Even though President Obama pledged to close Guantánamo and “look forward, not backward” on the CIA torture program when he got into office, those promises have amounted to very little. Guantánamo remains open. Indefinite detention continues and most likely will continue when Obama leaves the White House. Finally, many unanswered questions persist, when it comes to the CIA torture program, and their answers remain hidden beneath repressive secrecy laws that stifle the truth and prevent real accountability.