Looking to Poland for Accountability for CIA Torture

By Joanna Wasik, Georgetown Law '12, Guest Blogger 

This past summer, the Obama administration foreclosed the possibility that any charges would be brought against U.S. government officials for torture of terrorist suspects committed by the CIA during the Bush administration. This decision signaled an end to the prospect that a four-year-long probe into the deaths of two detainees in 2002 and 2003 would result in accountability through criminal prosecution. Earlier this year, however, an investigation in Poland and a case in the European Court of Human Rights (ECHR) regarding a former CIA “black site” prison emerged into public view and began to gain steam.  

As reported by the New York Times, Attorney General Holder explained that the decision not to bring criminal charges was guided by the conclusion that there was not enough available admissible evidence of torture to establish guilt beyond a reasonable doubt, and that this assessment does not mean that the actions taken by CIA officials were lawful. Holder stated that the investigation “was not intended to, and does not resolve, broader questions regarding the propriety of the examined conduct.” The decision was disappointing for many in the human rights community, such as Human Rights First, who have advocated that bringing to justice those responsible for torture is necessary to ensure that torture does not recur.

However, at the same time as the U.S. is closing the door on the possibility of trial for torture, prosecutors in another country, Poland, may be opening it. A staunch ally of the U.S. in the War on Terror under the Bush Administration, Poland hosted a CIA black site used to interrogate and allegedly torture Al-Qaeda suspects in Stare Kiejkuty, a town 100 miles north of Warsaw. According to the Council of Europe, the site opened in 2002 and housed “high-value” detainees, possibly including Khalid Sheikh Mohammad. Documents reveal that Mohammad was waterboarded 183 times in 2003, which may have occurred while he was at Stare Kiejkuty.

The Polish investigation first garnered public attention in March 2012, when it became known that the Prosecutor General’s office had charged Poland’s former Intelligence Chief with unlawful detention and corporal punishment. There have also been rumors that Leszek Miller, Poland’s Prime Minister at the time of the alleged black site’s operation, may be charged.

While President Obama’s statements in 2009 that he wanted to “look forward as opposed to backwards” foreshadowed his reluctance to prosecute Bush-era human rights violations, current Polish Prime Minister Donald Tusk’s attitude is starkly different. In 2012, he stated: “Poland is a democracy where national and international law must be observed […] [t]his issue must be explained. Let there be no doubt about it either in Poland or on the other side of the ocean.”

In addition to the Polish investigation, accountability for CIA torture may emerge from a closely related case in the ECHR. The Open Society Institute is representing Al-Nashiri, the terrorist suspect allegedly responsible for the USS Cole bombing currently facing trial by military commission at Guantanamo Bay, in his claim against Poland before the ECHR. In an important development in the case in July 2012, the ECHR ordered the Polish government to turn over all documents relevant to a possible CIA secret prison in Poland. In particular, it asked Poland to confirm whether or not al-Nashiri had been held at Stare Kiejkuty from 2002-2003. In September 2012, the government of Poland responded by requesting that public access to the documents be limited. To date, it remains to be seen how the Court will rule regarding disclosure of the documents to the public.

The Polish investigation, if it does result in prosecution, may bring a glimmer of the accountability hoped for by the human rights community. Although the investigation is proceeding very slowly and the U.S. government is refusing all requests of assistance, it could eventually bring to light many of the details of the treatment of detainees such as Al-Nashiri. Although the Polish investigation targets Polish government officials who illegally allowed Stare Kiejkuty to be used as a site for extraordinary rendition and torture, and the actual perpetrators-- U.S. government officials working for the CIA -- will not face trial, the investigation may still be an important step, and Poland should be applauded for being the only country currently pursuing such an investigation. Other countries which hosted black sites should be encouraged to follow Poland’s lead. In addition, Al-Nashiri’s case at the ECHR may finally bring about official acknowledgment of facts that, for the time being, have not been confirmed by the U.S. government. Because accountability for Bush-era torture will not happen at home, the U.S. human rights community should turn abroad to these cases to carefully monitor, publicize, and support them.