It is a sign of how U.S. moral values have been corroded in the post-9/11 world that conservatives in the U.S. immediately seized on the killing of Osama bin Laden as justification for torture, with the entirely unsubstantiated claim that waterboarding may have produced a relevant tip-off.
Sadly, this corruption extends beyond the U.S., to European countries that abandoned the principles enshrined in Europe's charter of fundamental rights in order to help the U.S. practice of extraordinary rendition—the secret transfer, without legal formalities, of suspected terrorists to clandestine CIA prisons or to countries that practice torture.
This is painfully clear in the case of Abd al-Rahim al-Nashiri, a Guantánamo prisoner now facing charges related to the October 2000 attack on the USS Cole in Aden. After his capture in 2002, al-Nashiri was held incommunicado and brutally tortured in a CIA prison in Poland, among other secret locations.
Now, eight-and-a-half years after his capture by the CIA, he was charged for trial not in a U.S. federal court, but by a military commission at Guantánamo Bay.
Poland's complicity in al-Nashiri's rendition has now additionally exposed Europe—the stain of the death penalty now being sought by U.S. military prosecutors in al-Nashiri's case.
But the European Court of Human Rights (ECHR) still has a chance to set some things right. On Friday (May 6), the Open Society Justice Initiative, acting on al-Nashiri's behalf, filed an application asking the ECHR to direct Poland to use all available means to prevent use of the death penalty.
The case sets out the facts of Poland's complicity in al-Nashiri's torture as well as his transfer from Poland, despite the risk that the U.S. might sentence him to death.
From about December 5, 2002, until about June 6, 2003, al-Nashiri was held incommunicado by the CIA on a Polish military intelligence base in Stare Kiejkuty. Official US government documents submitted to the ECHR in support of our application confirm that US interrogators in Stare Kiejkuty: subjected al-Nashiri to mock executions with a power drill as he stood naked and hooded; placed a semi-automatic handgun close to his head as he sat shackled before them; held him in “stress positions,” which included lifting him off the floor by his arms while they were bound behind his back and almost dislocated from his shoulders; and threatened to bring in his mother and sexually abuse her in front of him.
Since his capture by the CIA in 2002, al-Nashiri has never appeared in open court. His U.S. lawyers have been unable publicly to relay his account of his torture because everything he says is classified under U.S. government guidelines.
A heavily redacted transcript of a closed-door proceeding held in Guantánamo Bay in 2007 reveals that al-Nashiri said: “From the time I was arrested five years ago, they have been torturing me.” Al-Nashiri's descriptions of his torture are blacked out in the transcript. He does, however, state: “Before I was arrested I used to be able to run about ten kilometres. Now, I cannot walk for more than ten minutes.”
Just last month, the Parliamentary Assembly of the Council of Europe adopted a resolution reiterating its “principled opposition to the death penalty in any circumstances” and regretting that the U.S.'s use of the death penalty had “stained the reputation of this country, which its friends expect to be a beacon for human rights.”
That reputation has been further tarnished by torture and rendition policies formulated at the highest levels of government for which no one has been held accountable. Since 9/11, U.S. courts have largely abdicated their obligation to uphold the Bill of Rights. But the ECHR has a chance in the al-Nashiri case to show the world that Europe's human-rights charter means what it says.