Op-Ed: ‘Black sites’ ruling a rebuke to Poland, the CIA and torture

“On the general issue of so-called ‘black sites,’ we have not and will not confirm any purported locations. The overriding point, however, is that this program no longer exists.”

That was the White House reaction, as it brushed aside questions about a landmark ruling by the European Court of Human Rights, one of the world’s preeminent human rights tribunals. The decision came Thursday in a case my colleagues and I brought against Poland, where our client, Abu Zubaydah, had been imprisoned and tortured from December 2002 to September 2003. Though the U.S. no longer believes he was even a member of Al Qaeda, let alone a trusted associate of Osama bin Laden (as it once claimed), Zubaydah has been held without charges at the U.S. prison in Guantanamo Bay, Cuba, since 2006.

The tribunal’s decision is massive, more than 200 pages long. Based on a vast record, the finding is something no one can credibly deny: With the help of countries around the world, the CIA ran a network of secret prisons where human beings were systematically and repeatedly tortured. The court is meticulous but unequivocal. There is no legalistic parsing of the sort we have come to expect in this country. Torture it was, and torture is what the court calls it.

The evidence against Poland, the court ruled, was “coherent, clear, and categorical.” Poland “facilitated the whole process, created the conditions for it to happen and made no attempt to prevent it from occurring,” even though it knew the CIA would be holding prisoners and understood perfectly well the risk that they would be tortured. For that reason, by its “acquiescence and connivance,” Poland “must be regarded as responsible” for the illegal detention and torture that took place within its borders.

It is a historic decision, marking the first time a court has ruled on the CIA’s black site program in Europe. And it is a unanimous judgment, joined even by the court’s Polish judge.

Our case involved only Poland, but similar cases are pending before the court against Romania and Lithuania, where the CIA also operated black sites and tortured prisoners. What’s more, many other countries, including Britain, provided the CIA with vital assistance, without which the program could not have operated.

We now know that the United States entered into bilateral agreements with a number of countries. One country would agree to provide airspace for extradition flights; another would grant landing and refueling rights; a third would authorize the U.S. to create dummy flight plans that created the false impression that a plane had landed in its territory for innocent reasons, in order to conceal the unlawful flight that took place elsewhere. These countries are also on the hook after the decision.

And it is this very web, with its intricate and far-reaching complexity, that explains why the United States is so determined to prevent a full accounting of the program. The decision is not simply an indictment of Poland and the CIA. It is a rebuke of the entire criminal conspiracy that was the “extraordinary rendition” program.

That program operated like a hub, with its many spokes radiating out from Washington to reach a score of foreign capitals and intelligence services. It is sometimes said the banks were too big to fail during the worst of the financial crisis. But a few banks are nothing compared with this. For the United States, the torture program is too big to expose.

And that is precisely why accountability is so vital to American democracy. We cannot have reached the stage in our development as a country where the very enormity of the government’s misconduct becomes its shield against exposure. We cannot, in other words, reward the government for its wrongdoing by promising that only modest and insignificant transgressions will be brought to light. To do so would be to encourage the government to break its solemn faith with us, not by unfortunate and excusable negligence, but by unforgivable and deliberate venality. Our government would then cease to be our servant in any sense that does justice to the word.

I cannot believe we have fallen that far.

Reacting to the court’s decision, a spokeswoman for the Polish president said it was “shameful for Poland.” But Poland at least has the opportunity to make amends, to purge its shame by confronting its past. One day the United States may do the same, but only if Americans demand more of their government. The “overriding point,” we should remind our leaders, is not simply “that this program no longer exists.”

Joseph Margulies is a visiting professor of law and government at Cornell University.

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