A court handed down a huge victory yesterday, for two men who were rendered to a secret prison in Poland and tortured by the CIA. But it wasn't in an American court. And it wasn't the United States that was held to account.
In two landmark decisions, the European Court of Human Rights found "beyond reasonable doubt" what the world has long known – that the CIA ran a black site at Stare Kiejkuty, Poland, and that it tortured al-Rahim Hussayn al-Nashiri and Husayn Abu Zubaydah there. It also found that Poland was complicit in the CIA's "rendition, secret detention, and interrogation operations" in that country.
The court ruled that Poland breached the European rights treaty in multiple ways. Most notably, Poland violated the prohibition on torture by facilitating the CIA's torture, allowing the men to be taken out of Poland to another secret detention facility where they were likely to be tortured again, and failing to conduct a prompt, thorough, and effective investigation. In addition, Poland infringed on the men's fair trial rights by permitting them to be sent to Guantánamo in June 2003 where they would face trial by military commission. Such a trial would be "a flagrant denial of justice," the court wrote.
To remedy these violations, the court ordered Poland to pay 100,000 euros (about $130,000) to the two men who are back at the Guantánamo prison after having been transferred through multiple CIA black sites. Further, the court ruled, because Mr. al-Nashiri currently faces the death penalty in the military commissions, Poland must seek "assurances" from the United States that it will not execute him.
That this ruling came out of the European court only underscores the accountability gap in the United States where, to date, every case brought in our courts by victims of the torture program has been dismissed – on state secrecy or other grounds – without even considering the merits of the victims' claims.
While the European court stressed the importance of transparent investigations when serious human rights violations are at stake, the United States continues to insist that even the locations of the CIA's secret prisons are classified. The Obama White House is currently reviewing the Senate Intelligence Committee's several hundred page summary of its 6,000-page investigation into the CIA torture program for release later this year; there are reports that the names of the countries that participated in the torture program may be blacked out. Especially now that the European court has confirmed so many details about Poland's role in the CIA's torture program, it would be absurd if those facts are redacted from the Senate torture report.
The torture report is widely predicted to address the CIA's torture of al-Nashiri and Abu Zubaydah. A small – but telling – test for transparency will be whether references to these two men and to Poland appear in the public version. The American public shouldn't have to get the truth from a European court.