Ingrid Burke, RAPSI

More than a decade has passed since that sunny fall morning when four hijacked passenger planes brought the US to its knees.  The coordinated attacks of September 11, 2001 killed nearly 3,000 people, obliterated  New York’s Twin Towers,  caused the partial collapse of the Pentagon, and unrecognizably altered the face of US national security. The attacks compelled security agencies such as the Central Intelligence Agency (CIA) to improvise tools with which to confront a threat unprecedented in the annals of war: worldwide, stateless, ideology-driven terrorism.

As US President Barrack Obama put it in a May 2009 national security speech: “After 9/11, we knew that we had entered a new era -- that enemies who did not abide by any law of war would present new challenges to our application of the law; that our government would need new tools to protect the American people, and that these tools would have to allow us to prevent attacks instead of simply prosecuting those who try to carry them out. Unfortunately, faced with an uncertain threat, our government made a series of hasty decisions.  I believe that many of these decisions were motivated by a sincere desire to protect the American people.  But I also believe that all too often our government made decisions based on fear rather than foresight; that all too often our government trimmed facts and evidence to fit ideological predispositions.”

Extraordinary rendition, the controversial practice of secretly or forcibly sending a suspected criminal to another country to be interrogated or detained, was one of the responses made by the CIA in its jerry-rigged efforts to confront the terrorists. With the world’s initial terrors now mostly a fading memory, rendition is currently on trial across Europe. In one novel effort, attorneys are even trying to use the very words of the sitting President of the United States to pressure him into revealing what his country has done by way of rendition. In an age of rising terrorism, these legal proceedings beg the questions: 1.) how does a nation defend freedom without destroying it?, and 2.) can a civilized nation wage war on the lawless without either becoming like them or fatally handicapping itself?

After discussing the fragile balance to be struck between transparency and national security concerns, Obama vowed: “I ran for President promising transparency, and I meant what I said.  And that's why, whenever possible, my administration will make all information available to the American people so that they can make informed judgments and hold us accountable.”

The four years that have passed since that speech was delivered have carried with them a notable lack of transparency. Rather than wait any longer for full White House disclosure, legal efforts are underway which may shed light on the events of that shadowy war zone.

Poland extends victim status to a third Guantanamo detainee

Yemeni Guantanamo Bay detainee Walid Mohammed bin Attash has formally been recognized as a victim in connection with claims that he was subjected to torture while allegedly detained in a secret prison operated by the CIA on Polish territory, human rights advocacy group Amnesty International announced recently. Walid bin Attash is currently awaiting trial on charges connected with the 9/11 attacks.

According to Amnesty’s statement, Walid bin Attash is the third individual to have been recognized by Polish prosecutors as a victim in the course of an investigation into widespread allegations that the CIA committed human rights violations at a “black site” in the country. A report published by the Miami Herald named the other two Guantanamo Bay detainees that have received victim status as Abd al Rahim al-Nashiri and Abu Zubaydah.

Poland’s investigation has remained shrouded in secrecy, according to Amnesty, which went on to note that prosecutors have demonstrated a great deal of resistance to the idea of releasing details and findings to the public.

According to the Amnesty statement, the extension of victim or “injured person” status under Polish law emboldens the designee with the right to review files, initiate complaints over the refusal to disclose documents, and challenge delays in proceedings. Explaining the implications of the decision to news agency AFP, Walid bin Attash’s lawyer Mariusz Paplaczyk said, “My client has gained victim status in Poland, which means that we as his legal team have access to the prosecutor's case files and can petition the court.”

Paplaczyk likewise praised the decision in the Amnesty statement: “This is a breakthrough. Information about granting ‘injured person’ status in the Polish investigation is extremely important to my client.”

Amnesty International counter-terrorism and human rights expert Julia Hall praised the development for its potential to propel the investigation forward, saying in the statement: “This development should provide the much-needed push forward for the lagging investigation, which is now over five years running.”

It remains unclear whether the prior two victim designations have served as any such impetus.

The ECHR prepares to hear claims of Poland’s role in the program

Yet another avenue toward elucidation may lie with an upcoming European Court of Human Rights (ECHR) case. The Strasbourg-based human rights course has scheduled a chamber hearing for the morning of December 3, 2012 where two cases are set to be discussed. The cases, filed by Al Nashiri and Husayn (again, reportedly the first two Guantanamo detainees to have been recognized as victims in the case by Polish prosecutors), assert a series of violations of the European Charter of Human Rights (Charter) at the hands of Poland. The complaints of both men center on three central issues: allegations of ill-treatment while under US custody in Poland, the transfer of the men from Poland, and the alleged failure of Poland to carry out an effective investigation into the circumstances surrounding each man’s claims of ill treatment, detention, and transfer from the Polish territory.

The hearing – currently set to be open to the public – could certainly prove informative. However, Reuters reported Wednesday that the Polish government had filed a request for a private hearing. This has reportedly alarmed human rights activists, who see it as an attempt to conceal the country’s involvement in the program. According to Reuters, a court spokeswoman said that the request would be examined shortly.

Guantanamo defense attorneys appeal to Obama’s anti-torture rhetoric

Still a third option is that of a letter written by several defense attorneys representing accused 9/11 architect Khalid Shaikh Mohammad (KSM) and his alleged 9/11 co-conspirators have written a letter imploring US President Barack Obama to declassify information on what has come to be known as the Rendition, Detention, and Interrogation (RDI) program, as reported by The Miami Herald alongside a copy of the letter itself.

The letter begins by reminding Obama of his June 2011 vow of commitment to the UN Convention Against Torture, wherein the president asserted: “As President, I have therefore made it clear that the United States will prohibit torture without exception or equivocation, and I reaffirmed our commitment to the Convention’s tenets and our domestic laws.”

Urging Obama to stay true to his word, the attorneys wrote: “We ask that you declassify all aspects of the RDI program with respect to our clients against whom the United States seeks to impose the death penalty. True transparency and meaningful justice can only be achieved by a faithful application of deeds to aspirational statements.”

The letter asserts that the program’s present classification restrictions serve only to enable the cover-up of war crimes.

The program, in the words of both officials and advocates

In September 2006, nearly five years after the attacks, then-US President George W. Bush announced the existence of a clandestine CIA program aimed at turning up answers when other forms of interrogation had failed to do so.

In the former president’s words: “In addition to the terrorists held at Guantanamo, a small number of suspected terrorist leaders and operatives captured during the war have been held and questioned outside the United States, in a separate program operated by the Central Intelligence Agency.”

In an effort to illustrate the imperative of this shadowy parallel program, Bush pointed to the example of a terror suspect who had stopped responding to more traditional interrogation methods. Having established that the suspect seemed to have undergone training on interrogation resistance methods, “the CIA used an alternative set of procedures.” The former president added, “I cannot describe the specific methods used… [b]ut I can say the procedures were tough, and they were safe, and lawful, and necessary.”

On the issue of lawfulness, Bush pointed to a review by the Department of Justice (DOJ) authorizing the methods at issue.

This sentiment was echoed later by then-Director of the CIA General Michael Hayden. In an October 2007 statement on what is referred to as the CIA’s Terrorist Interrogation Program published on the agency’s website, Hayden stated that the initiative had been closely scrutinized for legal and policy issues, adding: “The Agency has worked closely with the Department of Justice and others in our government to ensure that the interrogation program operates in strict accord with US law and takes full account of any changes to the law.”

He noted in the statement that less than 100 “hardened terrorists” had participated in the program by that point, of which under a third had required “special methods of questioning.”

A month prior, while delivering statements to the Council on Foreign Relations (CFR), Hayden was presented with the question of whether the enhanced techniques utilized by the program were in fact necessary. While framing this and other questions relating to the program’s legality, an audience member noted: “Last year about this time, the president spoke, and he asked Congress for authority for the agency to be involved in what he called enhanced interrogation techniques.  This is things like stress positions, use of dogs, hypothermia, mock drowning, waterboarding.”

Before addressing the substantive issues presented by the questioner, Hayden responded with: “First let me make comment on your listing of techniques and just frankly add that it's a pretty good example of taking something to the darkest corner of the room and not reflective of what my agency does.”

An issue that resurfaced regularly during this period was the fact that the CIA at that point was not bound by the rules of interrogation featured in the Army Field Manual.

In March 2008, in an interview with NBC’s Meet the Press, journalist Tim Russert noted to Hayden that the Army Manual explicitly banned such techniques as beating prisoners, sexual humiliation, threatening prisoners with dogs, food and water deprivation, carrying out mock executions, electrical shocks, burns, and waterboarding. Hayden then confirmed that the manual did not apply to the CIA.

When asked whether he believed that waterboarding constituted torture, Hayden responded: “What's more important is what the Department of Justice believes, and, frankly, the question of waterboarding, I've, I tried to point this out in as many ways as I can publicly, is an uninteresting question for the Central Intelligence Agency. We have not--and I, I made this public last month--we have not waterboarded anyone in now over five years, and only three people have been waterboarded in in the life of the CIA's interrogation program.”

With regard to the army manual, Hayden added: “The issue with the Army Field Manual is not the false dichotomy that, that some people want to create, that on the one hand you've got the Army field manual and on the other hand you've got the licensing of torture.”

Going back to the CFR speech, Hayden had further elucidated the army manual issue, stating: “The Army Field Manual was crafted to allow America's Army to train large numbers of young men and women to debrief and interrogate, for tactical purposes, transient prisoners on a fast-moving battlefield… CIA handles a very small number of senior al Qaeda leaders.  The average age of our interrogators is 43.  The amount of training for this specific activity is 240 hours.  So the reason we're not covered by the Army Field Manual is that we're not in the Department of Defense (DOD).”

Shortly after entering office in 2009, current-US President Barrack Obama issued an executive order titled “Ensuring Lawful Interrogations.” In relevant part, the order established that the interrogation of all detainees in an armed-conflict setting, when carried out by any government agency, should follow the Army Field Manual’s interrogation standards.

The order further ordered the prompt closure of the CIA’s detention facilities, stating: “The CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future.”

While details of the program remain murky, a number of human rights organizations have endeavored to cast light on the techniques and their implications.

The Open Justice Society Initiative (OJSI), a New York-based program within George Soros’ Open Society Foundations, published a report in February of this year claiming that the CIA had operated so-called “black sites” outside US territory, where detainees were subjected to enhanced interrogation techniques that the organization claims “involved torture and other abuse.” To substantiate its claims, the report references a range of sources, including case law, official statements, and media reports.

The report goes on to assert that as many as 54 foreign governments may have participated in these operations in various capacities, including by such means as hosting CIA prisons.

Poland’s alleged role in this is highlighted later in the report, which adds: “The CIA secretly held its detainees in Afghanistan, Lithuania, Morocco, Poland, Romania, Thailand, and Guantánamo Bay.” Walid bin Attash is described as having been “subjected to secret CIA detention, including in Poland.”

The report claims that another detainee – Abd al Rahim al Nashiri Laden – was subjected to a mock execution by US interrogators in Poland. Notably, the report asserts that the interrogator responsible for the mock execution was reprimanded.

With regard to the probe presently underway in Poland, the report notes that an investigation into the alleged black sites was launched by the Warsaw district prosecutor’s office in March 2008. The OJSI, however – like Amnesty International – expressed disappointment with the lack of transparency thus far, stating in the report: “Although that investigation has been pending since 2008, no meaningful information on its terms of reference, precise scope, or progress has been publicly disclosed. Nor have Polish prosecutors provided any information on when the investigation is likely to conclude.”

Amnesty International’s Julia Hall said in her organization’s statement Wednesday: “If Poland is committed to human rights and the rule of law, its authorities must have the political courage to tell the truth about the CIA secret site and what happened there. The criminal investigation must be truly independent and effective, and anyone responsible for torture or enforced disappearance must be brought to justice,”

Where do we go from here?

The attacks targeting New York and Washington on September 11, 2001 were monstrous. A civilized world must protect its people and territory from such atrocities, punish the perpetrators, and deter the threat of future attack.

At the same time, in response to the horrors of the last century’s wars, the civilized nations of the world have sought to develop and to enforce certain international agreements governing the conduct of war. The signatories of these agreements---which of course do not include Al Qaida and ilk---are bound by specific international and domestic laws and policies. These laws and policies are sometimes contradictory, often vague (and accordingly malleable), and frequently untested – but they do exist.

The question raised by 9/11 and its consequences is: will international law effectively hold sway over the conduct of war or will it be a victim of it? For the heart of the problem is: can a civilized nation effectively defend itself against lawless, stateless adversaries within the bounds of international law or will those legal constraints amount to a suicide pact? For if the latter proves true, no government will long even feign to comply. International law will just be used to punish criminals who lose their wars.

For international law to become an effective force in this area it must be honored by its signatories in letter and spirit in the heat of action when such adherence is nettlesome. At the same time, such law must be so crafted as to permit its adherents to effectively respond to the very real threats posed by those who chose to operate outside the law.

Any law should be examined periodically to see whether it is achieving its intended effects and whether it is producing deleterious unintended consequences. In that spirit, it would be valuable to review the shadowy areas of the initial conduct of the war on global terrorism if such assessment can be conducted in a sober fashion and not as political theater. For the latter would only hasten the consignment of   international law on warfare to the crowded graveyard of plans crushed by the weight of their good intentions.

Hayeden retired as director of the CIA in February 2009, having put in a solid run of nearly three years in the office. In June 2010, he was asked during an interview with the magazine Studies in Intelligence why he had so ardently defended the CIA’s detention and interrogation program, in light of the fact that waterboarding – the most brutal among the so-called “enhanced interrogation techniques” that gained popular notoriety against the backdrop of America’s post-9/11 counterterrorism efforts – had not been used for upwards of three years prior to his entry into the agency’s lead office. To this, Hayden answered: “I didn’t quite defend all the [enhanced interrogation] techniques. I certainly didn’t defend waterboarding. Remember, I said earlier that [former CIA Director] George Tenet made the tough decisions that I thank God I didn’t have to make. People ask me, ‘Well, what would you have done?’ and I say, ‘I thank God I didn’t have to make that decision,’ and that’s as far as I go. What I did was point out that whatever you may think of this, it worked and we did indeed get life-saving intelligence out of it.”

It is difficult to imagine anyone that would have wanted to be in a position to have made the decisions referenced in Hayden’s Studies in Intelligence interview. Difficult decision had to be made, and – one way or another – they were. It is impossible to say with any certainty what happened in that alleged Polish black zone, but if any ounce of the OJSI’s theory is correct – it is imperative that the curtains of this dark era of justice are lifted, at very least for the sake of enhancing the scope of our international and domestic laws and policies so as to – at very least – make it a bit harder for history to repeat itself.

If Walid bin Attash’s grant of victim status can do anything to bring about this elucidation, perhaps the sphere of international law will be better off for it. And as long as we can all agree that waterboarding is a thing of the past, some degree of transparency can surely be achieved without sacrificing meaningful national security information with any degree of present value.

It should be noted that implicit in most of the legal challenges cited in this article is the confidence that first- and second- world nations will be able to stem the tide of terrorism without resorting to harsh methods such as extraordinary rendition. It is to be fervently hoped that such confidence proves to be justified.