Polish government knew about CIA prisons in Poland

[Magda Hassan]

http://hudoc.echr.coe.int/sites/eng/page...001-123768

FOURTH SECTIONApplication no. }]7511/13
Zayn Al-Abidin Muhammad HUSAYN (ABU ZUBAYDAH)against Poland
lodged on 28 January 2013STATEMENT OF FACTS

1. The applicant, Mr Zayn Al-Abidin Muhammad Husayn, also known as Abu Zubaydah, is a stateless Palestinian, who was born in 1971 in Saudi Arabia and is currently detained in the Internment Facility at the US Guantànamo Bay Naval Base in Cuba. He is represented before the Court by Ms D. Vedernikova, Security and Rule of Law lawyer in the non-governmental organisation Interights, Ms H. Duffy, Senior Counsel in Interights, Ms V. Vandova, the Litigation Director of Interights, Mr J. Margulies, member of the Illinois Bar, Mr G.B. Mitckum, IV, member of the District of Columbia and Virginia Bars, and Mr B. Jankowski, a lawyer practising in Warsaw.A. Background1. The so-called "High-Value Detainees Programme"2. After 11 September 2001 the US Government began operating a special interrogation and detention programme designated for suspected terrorists. On 17 September 2001 President Bush signed a classified Presidential Finding granting the Central Intelligence Agency ("the CIA") extended competences relating to its covert actions, in particular authority to detain terrorist suspects and to set up secret detention facilities outside the United States, in cooperation with the governments of the countries concerned.3. On an unspecified later date the CIA established a programme in the Counterterrorist Center to detain and interrogate terrorists at sites abroad. In further documents the American authorities referred to it as "the CTC program" (see also paragraphs 5-8 below) but, subsequently, it was also called "the High-Value Detainees Program" ("the HVD Programme") (see also paragraph 8 below), or the Rendition Detention Interrogation Program ("the RDI Programme"). In the Council of Europe's documents it is also described as "the CIA secret detention programme" or "the extraordinary rendition programme" (see also paragraphs 86-103 below). For the purposes of the present case, it is referred to as "the HVD Programme".(a) The establishment of the HVD Programme4. On 24 August 2009 the American authorities released a report prepared by John Helgerson, the CIA Inspector General, in 2004 ("the 2004 CIA Report"). The document, dated 7 May 2004 and entitled "Special Review Counterterrorism Detention and Interrogation Activities September 2001-October 2003", with appendices A-F, had previously been classified as "top secret". It was considerably redacted; overall, more than one-third of the 109-page document was blackened out.5. The report, which covers the period from September 2001 to mid-October 2002, begins with a statement that in November 2002 the CIA Deputy Director for Operations ("the DDO") informed the Office of Inspector General ("OIG") that the Agency had established a programme in the Counterterrorist Centre ("CTC") to detain and interrogate terrorists at sites abroad.6. Paragraph 4 describes the applicant as "the first high-value detainee" captured by the CIA. The document further states that"the capture of senior Al-Qa'ida operative Abu Zubaydah on 27 March 2002 presented the Agency with the opportunity to obtain actionable evidence on future threats to the United States from the most senior Al-Qa'ida member in the US custody at that time. This accelerated CIA's development of an interrogation program [redacted]".7. The background of the HVD Programme was explained in paragraphs 4-5 as follows:"4. [REDACTED] the Agency began to detain and interrogate directly a number of suspected terrorists. The capture and initial Agency interrogation of the first high value detainee, Abu Zubaydah, in March 2002, presented the Agency with a significant dilemma. The Agency was under pressure to do everything possible to prevent additional terrorist attacks. Senior Agency officials believed Abu Zubaydah was withholding information that could not be obtained through then-authorized interrogation techniques. Agency officials believed that a more robust approach was necessary to elicit threat information from Abu Zubaydah and possibly from other senior Al'Qaeda high value detainees.5. [REDACTED] The conduct of detention and interrogation activities presented new challenges for CIA. These included determining where detention and interrogation facilities could be securely located and operated, and identifying and preparing qualified personnel to manage and carry out detention and interrogation activities. With the knowledge that Al'Qaeda personnel had been trained in the use of resistance techniques, another challenge was to identify interrogation techniques that Agency personnel could lawfully use to overcome the resistance. In this context, CTC, with the assistance of the Office of Technical Service (OTS), proposed certain more coercive physical techniques to use on Abu Zubaydah. All of these considerations took place against the backdrop of pre-September 11, 2001 CIA avoidance of interrogations and repeated US policy statements condemning torture and advocating the humane treatment of political prisoners and detainees in the international community."8. As further explained in the 2004 CIA Report, "terrorist targets" and detainees referred to therein were generally categorised as "high value" or "medium value". This distinction was based on the quality of intelligence that they were believed likely to be able to provide about current terrorist threats against the United States. "Medium-Value Detainees" were individuals believed to have lesser direct knowledge of terrorist threats but to have information of intelligence value. "High-Value Detainees" (also called "HVD") were given the highest priority for capture, detention and interrogation. In some CIA documents they are also referred to as "High-Value Targets" ("HVT").(b) Enhanced Interrogation Techniques9. In paragraph 6 of the 2004 CIA Report, in relation to the "legal parameters and constraints for interrogations" of suspected terrorists, it is stated that, following extensive consultations with the US Department of Justice and the National Security Council legal and policy staff, it was considered that "in most instances relevant to counter-terrorism detention and interrogation activities [redacted] the criminal prohibition against torture ... is the controlling legal constraint on interrogations of detainees outside the United States". It was further mentioned that in August 2002 the US Department of Justice had provided the CIA with a legal opinion determining that 10 specific "Enhanced Interrogation Techniques" ("EITs"), as applied to suspected terrorists, would not violate the prohibition of torture. This document provided "the foundation for the policy and administrative decisions that guided the CTC Program".10. The EITs are described in paragraph 36 of the 2004 CIA Report as follows:" [1.] The attention grasp consists of grasping the detainee with both hands, with one hand on each side of the collar opening, in a controlled and quick motion. In the same motion as the grasp, the detainee is drawn toward the interrogator.[2.] During the walling technique, the detainee is pulled forward and then quickly and firmly pushed into a flexible false wall so that his shoulder blades hit the wall. His head and neck are supported with a rolled towel to prevent whiplash.[3.] The facial hold is used to hold the detainee's head immobile. The interrogator places an open palm on either side of the detainee's face and the interrogator's fingertips are kept well away from the detainee's eyes.[4.] With the facial or insult slap, the fingers are slightly spread apart. The interrogator's hand makes contact with the area between the tip of the detainee's chin and the bottom of the corresponding earlobe.[5.] In cramped confinement, the detainee is placed in a confined space, typically a small or large box, which is usually dark. Confinement in the smaller space lasts no more than two hours and in the larger space it can last up to 18 hours.[6.] Insects placed in a confinement box involve placing a harmless insect in the box with the detainee.[7.] During wall standing, the detainee may stand about 4 to 5 feet from a wall with his feet spread approximately to his shoulder width. His arms are stretched out in front of him and his fingers rest on the wall to support all of his body weight. The detainee is not allowed to reposition his hands or feet.[8.] The application of stress positions may include having the detainee sit on file floor with his legs extended straight out in front of him with his anus raised above his head or kneeling on the floor while leaning back at a 45 degree angle.[9.] Sleep deprivation will not exceed 11 days at a time.[10.] The application of the waterboard technique involves binding the detainee to a bench with his feet elevated above his head. The detainee's head is immobilized and an interrogator places a cloth over the detainee's mouth and nose while pouring water onto the cloth in a controlled manner. Airflow is restricted for 20 to 40 seconds and the technique produces the sensation of drowning and suffocation."11. Appendix F to the 2004 CIA Report (Draft OMS Guidelines on Medical and Psychological Support to Detainee Interrogations of 4 September 2003) refers to "legally sanctioned interrogation techniques". It states, among other things, that "captured terrorists turned over to the CIA for interrogation may be subjected to a wide range of legally sanctioned techniques. ... These are designed to psychologically dislocate' the detainee, maximize his feeling of vulnerability and helplessness, and reduce or eliminate his will to resist ... efforts to obtain critical intelligence".The techniques included, in ascending degree of intensity:1) Standard measures (that is, without physical or substantial psychological pressure): shaving; stripping; diapering (generally for periods not greater than 72 hours); hooding; isolation; white noise or loud music (at a decibel level that will not damage hearing); continuous light or darkness; uncomfortably cool environment; restricted diet, including reduced caloric intake (sufficient to maintain general health); shackling in upright, sitting, or horizontal position; water dousing; sleep deprivation (up to 72 hours).2) Enhanced measures (with physical or psychological pressure beyond the above): attention grasp; facial hold; insult (facial) slap; abdominal slap; prolonged diapering; sleep deprivation (over 72 hours); stress positions: on knees body slanted forward or backward or leaning with forehead on wall; walling; cramped confinement (confinement boxes) and waterboarding.12. The CIA agents were authorised to use four standard interrogation techniques (sleep deprivation not exceeding 72 hours; continual use of light or darkness in a cell, loud music and white noise (background hum)) as identified in November 2002 without the Headquarters' prior approval. The use of the EITs required a prior approval (paragraph 89 of the 2004 CIA Report).13. Appendix C to the 2004 CIA Report (Memorandum for John Rizzo Acting General Counsel of the Central Intelligence Agency of 1 August 2002) was prepared by Jay S. Baybee, Assistant Attorney General in connection with the application of the EITs to the applicant, the first high-ranking Al'Qaeda prisoner who was to be subjected to those interrogation methods. This document, a classified analysis of specific interrogation techniques proposed for use in the interrogation of Abu Zubaydah, was declassified in 2009. It concludes that, given that "there is no specific intent to inflict severe mental pain or suffering ..." the application "of these methods separately or a course of conduct" would not violate the prohibition of torture as defined in section 2340 of title 18 of the United States Code.14. The US Department of Justice Office of Professional Responsibility Report: "Investigation into the Office of Legal Counsel's Memoranda Concerning Issues Relating to the Central Agency's Use of Enhanced Interrogation Techniques' on Suspected Terrorists" ("the 2009 DOJ Report"; a document released by the US authorities in a considerably redacted form[1], states, in so far as relevant:"The issue how to approach interrogations reportedly came to a head after the capture of a senior al'Qaeda leader, Abu Zubaydah, during a raid in Faisalabad, Pakistan, in late March 2002. Abu Zubaydah was transported to a black site', a secret CIA prison facility [REDACTED] where he was treated for gunshot wounds he suffered during his capture.... the FBI and CIA planned to work together on the Abu Zubaydah interrogation. ... the CIA was in charge of the interrogation and ... the FBI was there to provide assistance. Because the CIA interrogators were not yet at the site when the FBI agents arrived, two experienced FBI interrogators began using relationship building' or rapport building' techniques on Abu Zubaydah. During this initial period the FBI was able to learn his true identity, and got him to identify a photograph of another important al'Qaeda leader, Khalid Sheikh Muhammad, as Muktar', the planner of the September 11, 2001 attacks.When the CIA personnel arrived, they took control of the interrogation. The CIA interrogators were reportedly unhappy with the quality of information being provided, and told the FBI that they needed to use more aggressive techniques. ... the CIA interrogators were convinced that Abu Zubaydah was withholding information and that harsh techniques were the only way to elicit further information, According to an FBI interrogator ..., the CIA began using techniques that were borderline torture' and Abu Zubaydah, who had been responding to the FBI approach, became uncooperative. According to one of the FBI interrogators, CIA personnel told him that the harsh techniques had been approved at the highest level'."15. According to the 2009 DOJ Report, the CIA psychologists eventually proposed twelve EITs to be used in the interrogation of Abu Zubaydah: attention grasp, walling, facial hold, facial or insult slap, cramped confinement, insects, wall-standing, stress positions, sleep deprivation, use of diapers, waterboard the name of the twelfth EITs was redacted.16. The 2004 CIA Report states that, subsequently, the CIA Office of General Counsel ("OGC") continued to consult with the US Department of Justice in order to expand the use of EITs beyond the interrogation of Abu Zubaydah. According to the report, "this resulted in the production of an undated and unsigned document entitled "Legal principles Applicable to CIA Detention and Interrogation of Captured Al'Qaeda Personnel". The document is still classified as top secret. Certain parts are, however, rendered in the 2004 CIA report. For instance, the report states the following:"...the [Torture] Convention permits the use of [cruel, inhuman, or degrading treatment] in exigent circumstances, such as a national emergency or war. ...the interrogation of Al'Qaeda members does not violate the Fifth and Fourteenth Amendments because those provisions do not apply extraterritorially, nor does it violate the Eighth Amendment because it only applies to persons upon whom criminal sanctions have been imposed ...The use of the following techniques and of comparable, approved techniques does not violate any Federal statute or other law, where the CIA interrogators do not specifically intend to cause the detainee to undergo severe physical or mental pain or suffering (i.e., they act with the good faith belief that their conduct will not cause such pain or suffering): isolation, reduced caloric intake (so long as the amount is calculated to maintain the general health of the detainees), deprivation of reading material, loud music or white noise (at a decibel level calculated to avoid damage to the detainees' hearing), the attention grasp, walling, the facial hold, the facial slap (insult slap), the abdominal slap, cramped confinement, wall standing, stress positions, sleep deprivation, the use of diapers, the use of harmless insects, and the water board."The report, in paragraph 44, states that according to OGC this analysis embodied the US Department of Justice agreement that the reasoning of the classified OLC opinion of 1 August 2002 extended beyond the interrogation of Abu Zubaydah and the conditions specified in that opinion.17. As established in paragraph 51 of the report, in November 2002 CTC initiated training courses for CIA agents involved in interrogations. On 28 January 2003 formal "Guidelines on Confinement Conditions for CIA Detainees" and "Guidelines on Interrogations Conducted Pursuant to [REDACTED]" were approved (paragraph 50); see also paragraph 46 below).18. The application of the EITs to other terrorist suspects in CIA custody began in November 2002.© Standard procedures and treatment of "High Value Detainees" in CIA custody (combined use of interrogation techniques)19. On 30 December 2004 the CIA prepared a background paper on the CIA's combined interrogation techniques ("the 2004 CIA Background Paper"), addressed to D. Levin, the US Acting Assistant Attorney General. The document, originally classified as "top secret" was released on 24 August 2009 in a heavily redacted version. It explains standard authorised procedures and treatment to which high-value detainees the HVD in CIA custody were routinely subjected from their capture through their rendition and reception at a CIA "black site" to the interrogation.20. The first section of the 2004 CIA Background Paper, entitled "Initial Capture", is devoted to the process of capture, rendition and reception at the "black site". It states that "regardless of their previous environment and experiences, once a HVD is turned over to CIA a predictable set of events occur". The "set of events" following the capture starts from rendition, which is described as follows:"a. The HVD is flown to a Black Site a medical examination is conducted prior to the flight. During the flight, the detainee is securely shackled and is deprived of sight and sound through the use of blindfolds, earmuffs, and hoods. [REDACTED] There is no interaction with the HVD during this rendition movement except for periodic, discreet assessments by the on-board medical officerb. Upon arrival at the destination airfield, the HVD is moved to the Black Site under the same conditions and using appropriate security procedures."The description of the next "event" the reception at the black site reads as follows:"The HVD is subjected to administrative procedures and medical assessment upon arrival at the Black Site. [REDACTED] the HVD finds himself in the complete control of Americans; [REDACTED] the procedures he is subjected to are precise, quiet, and almost clinical; and no one is mistreating him. While each HVD is different, the rendition and reception process generally creates significant apprehension in the HVD because of the enormity and suddenness of the change in environment, the uncertainty about what will happen next, and the potential dread an HVD might have of US custody. Reception procedures include:a. The HVD's head and face are shaved.b. A series of photographs are taken of the HVD while nude to document the physical condition of the HVD upon arrival.c. A Medical Officer interviews the HVD and a medical evaluation is conducted to assess the physical condition of the HVD. The medical officer also determines if there are any contra indications to the use of interrogation techniques.d. A psychologist interviews the HVD to assess his mental state. The psychologist also determines if there are any contra indications to the use of interrogation techniques."21. The second section, entitled "Transitioning to Interrogation - The Initial Interview", deals with the stage before the application of EITs. It reads:"Interrogators use the Initial Interview to assess the initial resistance posture of the HVD and to determine in a relatively benign environment if the HVD intends to willingly participate with CIA interrogators. The standard on participation is set very high during the Initial Interview. The HVD would have to willingly provide information on actionable threats and location information on High-Value Targets at large not lower level information for interrogators to continue with the neutral approach. [REDACTED] to HQS. Once approved, the interrogation process begins provided the required medical and psychological assessments contain no contra indications to interrogation."22. The third section, "Interrogation", which is largely redacted, describes the standard combined application of interrogation techniques defined as 1)"existing detention conditions", 2)"conditioning techniques", 3)"corrective techniques" and 4)"coercive techniques".The part dealing with the "existing detention conditions" reads:"Detention conditions are not interrogation techniques, but they have an impact on the detainee undergoing interrogation. Specifically, the HVD will be exposed to white noise/loud sounds (not to exceed 79 decibels) and constant light during portions of the interrogation process. These conditions provide additional operational security: white noise/loud sounds mask conversations of staff members and deny the HVD any auditory clues about his surroundings and deter and disrupt the HVD's potential efforts to communicate with other detainees. Constant light provides an improved environment for Black Site security, medical, psychological, and interrogator staff to monitor the HVD."The "conditioning techniques" are related as follows:"The HVD is typically reduced to a baseline, dependent state using the three interrogation techniquesdiscussed below in combination. Establishing this baseline state is important to demonstrate to the HVD that he has no control over basic human needs. The baseline state also creates in the detainee a mindset in which he learns to perceive and value his personal welfare, comfort, and immediate needs more than the information he is protecting. The use of these conditioning techniques do not generally bring immediate results; rather, it is the cumulative effect of these techniques, used over time and in combination with other interrogation techniques and intelligence exploitation methods, which achieve interrogation objectives. These conditioning techniques require little to no physical interaction between the detainee and the interrogator. The specific conditioning interrogation techniques area. Nudity. The HVD's clothes are taken and he remains nude until the interrogators provide clothes to him.b. Sleep Deprivation. The HVD is placed in the vertical shackling position to begin sleep deprivation. Other shackling procedures may be used during interrogations. The detainee is diapered for sanitary purposes; although the diaper is not used at all times.c. Dietary manipulation. The HVD is fed Ensure Plus or other food at regular intervals. The HVD receives a target of 1500 calories per day per OMS guidelines."23. The "corrective techniques", which were applied in combination with the "conditioning techniques", are defined as those requiring "physical interaction between the interrogator and detainee" and "used principally to correct, startle, or to achieve another enabling objective with the detainee". They are described as follows:"These techniques the insult slap, abdominal slap, facial hold, and attention grasp are not used simultaneously but are often used interchangeably during an individual interrogation session. These techniques generally are used while the detainee is subjected to the conditioning techniques outlined above (nudity, sleep deprivation, and dietary manipulation). Examples of application include:a. The insult slap often is the first physical technique used with an HVD once an interrogation begins. As noted, the HVD may already be nude, in sleep deprivation, and subject to dietary manipulation, even though the detainee will likely feel little effect from these techniques early in the interrogation. The insult slap is used sparingly but periodically throughout the interrogation process when the interrogator needs to immediately correct the detainee or provide a consequence to a detainee's response or non-response. The interrogator will continually assess the effectiveness of the insult slap and continue to employ it so long as it has the desired effect on the detainee. Because of the physical dynamics of the various techniques, the insult slap can be used in combination with water dousing or kneeling stress positions. Other combinations are possible but may not be practical.b. Abdominal Slap. The abdominal slap is similar to the insult slap in application and desired result. It provides the variation necessary to keep a high level of unpredictability in the interrogation process. The abdominal slap will be used sparingly and periodically throughout the interrogation process when the interrogator wants to immediately correct the detainee [REDACTED], and the interrogator will continually assess its effectiveness. Because of the physical dynamics of the various techniques, the abdominal slap can be used in combination with water dousing, stress positions, and wall standing. Other combinations are possible but may not be practical,c. Facial Hold. The facial hold is a corrective technique and is used sparingly throughout interrogation. The facial hold is not painful and is used to correct the detainee in a way that demonstrates the interrogator's control over the HVD [REDACTED]. Because of the physical, dynamics of the various techniques, the facial hold can be used in combination with water dousing, stress positions, and wall standing. Other combinations are possible but may not be practical.d. Attention Grasp .It may be used several times in the same interrogation. This technique is usually applied [REDACTED] grasp the HVD and pull him into close proximity of the interrogator (face to face). Because of the physical dynamics of the various techniques, the attention grasp can be used in combination with water dousing or kneeling stress positions. Other combinations are possible but may not be practical."24. The "coercive techniques", defined as those placing a detainee "in more physical and psychological stress and therefore considered more effective tools in persuading a resistant HVD to participate with CIA interrogators", are described as follows:"These techniques walling, water dousing, stress positions, wall standing, and cramped confinement are typically not used in combination, although some combined use is possible. For example, an HVD in stress positions or wall standing can be water doused at the same time. Other combinations of these techniques may be used while the detainee is being subjected to the conditioning techniques discussed above (nudity, sleep deprivation, and dietary manipulation). Examples of coercive techniques include:a. Walling. Wailing is one of the most effective interrogation techniques because it wears down the HVD physically, heightens uncertainty in the detainee about what the interrogator may do to him, and creates a sense of dread when the HVD knows he is about to be walled again. [REDACTED] interrogator [REDACTED]. An HVD may be walled one time (one impact with the wall) to make a point or twenty to thirty times consecutively when the interrogator requires a more significant response to a question. During an interrogation session that is designed to be intense, an HVD will be walled multiple times in the session. Because of the physical dynamics of walling, it is impractical to use it simultaneously with other corrective or coercive techniques.b. Water Dousing. The frequency and duration of water dousing applications are based on water temperature and other safety considerations as established by OMS guidelines. It is an effective interrogation technique and may be used frequently within those guidelines. The physical dynamics of water dousing are such that it can be used in combination with other corrective and coercive techniques. As noted above, an HVD in stress positions or wall standing can be water doused. Likewise, it is possible to use the insult slap or abdominal slap with an HVD during water dousing.c. Stress Positions. The frequency and duration of use of the stress positions are based on the interrogator's assessment of their continued effectiveness during interrogation. These techniques are usually self-limiting in that temporary muscle fatigue usually leads to the HVD being unable to maintain the stress position after a period of time. Stress positions requiring the HVD to be in contact with the wall can be used in combination with water dousing and abdominal slap. Stress positions requiring the HVD to kneel can be used in combination with water dousing, insult slap, abdominal slap, facial hold, and attention grasp.d. Wall Standing. The frequency and duration of wall standing are based on the interrogator's assessment of its continued effectiveness during interrogation. Wall standing is usually self-limiting in that temporary muscle fatigue usually leads to the HVD being unable to maintain the position after a period of time. Because of the physical dynamics of the various techniques, wall standing can be used in combination with water dousing and abdominal slap. While other combinations are possible, they may not be practical.e. Cramped Confinement. Current OMS guidance on the duration of cramped confinement limits confinement in the large box to no more than 8 hours at a time for no more than 18 hours a day, and confinement in the small box to 2 hours. [REDACTED] Because of the unique aspects of cramped confinement, it cannot be used in combination with other corrective or coercive techniques."25. The subsequent section of the 2004 CIA Background Paper, entitled "Interrogation A Day-to-Day Look" sets out a considerably redacted "prototypical interrogation" practised routinely at the CIA black site "with an emphasis on the application of interrogation techniques, in combination and separately".It reads as follows:"1) [REDACTED]2) Session Onea. The HVD is brought into the interrogation room, and under the direction of the interrogators, stripped of his clothes, and placed into shackles.b. The HVD is placed standing with his back to the walling wall. The HVD remains hooded.c. Interrogators approach the HVD, place the wailing collar over his head and around his neck, and stand in front of the HVD. [REDACTED].d. The interrogators remove the HVD's hood and [REDACTEd] explain the HVD's situation to him, tell him that the interrogators will do what it takes to get important information, and that he can improve his conditions immediately by participating with the interrogators. The insult slap is normally used as soon as the HVD does or says anything inconsistent with the interrogators' instructions.e. [REDACTED] If appropriate, an insult slap or abdominal slap will follow.f. The interrogators will likely use walling once it becomes clear that the HVD is lying, withholding information, or using other resistance techniques.g. The sequence may continue for several more iterations as the interrogators continue to measure the HVD's resistance posture and apply a negative consequence to the HVD's resistance efforts.h. The interrogators, assisted by security officers (for security purposes), will place the HVD in the center of the interrogation room in the vertical shackling position and diaper the HVD to begin sleep deprivation. The HVD will be provided with Ensure Plus - (liquid dietary supplement) - to begindietary manipulation. The HVD remains nude. White noise (not to exceed 79db) is used in the interrogation room. The first interrogation session terminates at this point.i. [REDACTED]j. This first interrogation session may last from 30 minutes to several hours based on the interrogators' assessment of the HVD's resistance posture. [REDACTED] The three Conditioning Techniques were used to bring the HDV to a baseline, dependent state conducive to meeting interrogation objectives in a timely manner. [REDACTED].3) Session Two.a. The time period between Session One and Session Two could be as brief as one hour or more than 24 hours [REDACTED] In addition, the medical and psychological personnel observing the interrogations must advise that there are no contra indications to another interrogation session.b. [REDACTED]c. Like the first session, interrogators approach the HVD, place the walling collar over his head and around his neck, and stand in front of the HVD. [REDACTED].d. [REDACTED] Should the HVD not respond appropriately to the first questions, the interrogators will respond with an insult slap or abdominal slap to set the stage for further questioning.e. [REDACTED] The interrogators will likely use walling once interrogators determine the HVD is intent on maintaining his resistance posture.f. The sequence [REDACTED] may continue for multiple iterations as the interrogators continue to measure the HVD's resistance posture.g. To increase the pressure on the HVD, [REDACTED] water douse the HVD for several minutes. [REDACTED].h. The interrogators, assisted by security officers, will place the HVD back into the vertical shackling position to resume sleep deprivation. Dietary manipulation also continues, and the HVD remains nude. White noise (not to exceed 79db) is used in the interrogation room. The interrogation session terminates at this point,i. As noted above, the duration of this session may last from 30 minutes to several hours based on the interrogators' assessment of the HVD's resistance posture. In this example of the second session, the following techniques were used: sleep deprivation, nudity, dietary manipulation, walling, water dousing, attention grasp, insult slap, and abdominal slap. The three Conditioning Techniques were used to keep the HVD at a baseline, dependent state and to weaken his resolve and will to resist. In combination with these three techniques, other Corrective and Coercive Techniques were used throughout the interrogation session based on interrogation objectives and the interrogators' assessment of the HVD's resistance posture.4) Session Threea.[REDACTED] In addition, the medical and psychological personnel observing the interrogations must find no contra indications to continued interrogation.b. The HVD remains in sleep deprivation, dietary manipulation and is nude.[REDACTED].c. Like the earlier sessions, the HVD begins the session standing against the walling wall with the walling collar around his neck.d. If the HVD is still maintaining a resistance posture, interrogators will continue to use walling and water dousing. All of the Corrective Techniques, (insult slap, abdominal slap, facial hold, attention grasp) may be used several times during this session based on the responses and actions of the HVD. Stress positions and wall standing will be integrated into interrogations. [REDACTED]. Intense questioning and walling would be repeated multiple times.[REDACTED].Interrogators will often use one technique to support another. As an example, interrogators would tell an HVD in a stress position that he (HVD) is going back to the walling wall (for walling) if he fails to hold the stress position until told otherwise by the HVD. This places additional stress on the HVD who typically will try to hold the stress position for as long as possible to avoid the walling wall. [REDACTED] interrogators will remind the HVD that he is responsible for this treatment and can stop it at any time by cooperating with the interrogators.e. The interrogators, assisted by security officers, will place the HVD back into the vertical shackling position to resume sleep deprivation. Dietary manipulation also continues, and the HVD remains nude. White noise (not to exceed 79db) is used in the interrogation room. The interrogation session terminates at this point.In this example of the. third session, the following techniques were used: sleep deprivation, nudity, dietary manipulation, walling, water dousing, attention grasp, insult slap, abdominal slap, stress positions, and wall standing.5) Continuing Sessions.[REDACTED] Interrogation techniques assessed as being the most effective will be emphasized while techniques will little assessed effectiveness will be minimized.a. [REDACTED]b. The use of cramped confinement may be introduced if interrogators assess that it will have the appropriate effect on the HVD.c. [REDACTED]d. Sleep deprivation may continue to the 70 to 120 hour range, or possibly beyond for the hardest resisters, but in no case exceed the 180-hour time limit. Sleep deprivation will end sooner if the medical or psychologist observer finds contra indications to continued sleep deprivation.e. [REDACTED].f. [REDACTED]g. The interrogators' objective is to transition the HVD to a point where he is participating in a predictable, reliable, and sustainable manner. Interrogation techniques may still be applied as required, but become less frequent. [REDACTED]This transition period lasts from several days to several weeks based on the HVDs responses and actions.h. The entire interrogation process outlined above, including-transition, may last for thirty days. [REDACTED] On average, the actual use of interrogation technique can vary upwards to fifteen days based on the resilience of the HVD [REDACTED]. If the interrogation team anticipates the potential need to use interrogation techniques beyond the 30-day approval period, it will submit a new interrogation plan to HQS [CIA headquarters] for evaluation and approval."(d) Closure of the HVD Programme26. On 6 September 2006 President Bush delivered a speech announcing the closure of the HVD Programme. According to information disseminated publicly by the US authorities, no persons were held by the CIA as of October 2006 and the detainees concerned were transferred to the custody of the US military authorities in the US Naval Base in Guantànamo Bay.2. Role of Jeppesen Company27. Jeppesen Dataplan is a subsidiary of Boeing based in San Jose, California. According to the company's website, it is an international flight operations service provider that coordinates everything from landing fees to hotel reservations for commercial and military clients.28. In the light of various reports on rendition flights (see paragraph 118 below), a unit of the company Jeppesen International Trip Planning Service (JITPS) provided logistical support to the CIA for the renditions of persons suspected of terrorism.29. In 2007, the American Civil Liberties Union ("the ACLU") filed a federal lawsuit against Jeppesen Dataplan, Inc. on behalf of three extraordinary rendition victims with the District Court for the Northern District of California. Later, two other persons joined the lawsuit as plaintiffs. The suit charged that Jeppesen knowingly participated in these renditions by providing critical flight planning and logistical support services to aircraft and crews used by the CIA "to forcibly disappear" these five men to torture, detention and interrogation.In February 2008 the District Court dismissed the case on the basis of "State secret privilege". In April 2009 the Ninth Circuit Court of Appeals reversed the first-instance decision and remitted the case. In September 2010, on the US Government's appeal, an 11-judge panel of the Ninth Circuit Court of Appeals reversed the decision of April 2009. In May 2011 the US Supreme Court refused the ACLU's request to hear the lawsuit.B. The circumstances of the case30. The applicant's lawyers have first referred to what they have called "the unprecedented restrictions on communication between Abu Zubaydah, his counsel and the Court, which preclude the presentation of information or evidence directly from or in relation to the client". Only the applicant's US counsel with top-secret security clearance may meet with the client and all information obtained from the client is presumptively classified, so that counsel cannot disclose to other members of the legal team or to the Court any information obtained from the client or other classified sources without approval by the detaining authority.A request for release of an affidavit from Abu Zubaydah has been pending before the US authorities for more than two years but, as is routinely the case, this request will involve the need for litigation in a US court. In addition, if the document is released, it is likely to be heavily redacted. Attempts to declassify drawings and writings by the applicant during his detention have been unsuccessful.According to the applicant's lawyers, "Abu Zubaydah is a man deprived of his voice, barred from communicating with the outside world or with this Court and from presenting evidence in support of his case". For that reason, his case is presented by reference principally to publicly available documentation.31. The facts of the case, as submitted on behalf of the applicant, may be re-stated as follows.1. The applicant's capture in Pakistan and further detention in Thailand32. On 28 March 2002 agents of the United States and Pakistan seized the applicant from a house in Faisalabad, Pakistan. In the course of the operation, he was shot several times in the groin, thigh and stomach, which resulted in very serious wounds. He was taken into the custody of the CIA.At the time of his capture the applicant was considered one of the key Al'Qaeda members and described by the American authorities as the "third or fourth man" in Al'Qaeda, who had had a role in its every major terrorist operation, including the role of a planner of the attacks on 11 September 2001. It was also alleged that he had been Osama bin Laden's senior lieutenant. As mentioned above (see paragraphs 6-7 above), he was the first so-called "high-value detainee" ("the HVD") detained by the CIA at the beginning of the "war on terror" launched by President Bush after the 11 September 2001 attacks in the United States.33. According to the applicant, subsequently for more than four years from the day on which he was seized in Faisalabad until his transfer from the CIA's to the US Department of Defense's custody in September 2006 he was held in incommunicado detention in secret detention facilities, the so-called "black sites" run by the CIA around the world.34. After his arrest, the applicant was transferred to a secret CIA detention facility in Thailand, where he was interrogated by CIA agents and where a variety of EITs were tested on him. Media reports have consistently identified this location as a CIA site code-named "Cat's Eye". At this site, the interrogations of the applicant were videotaped.35. The 2009 DOJ Report, relying on the 2004 CIA Report, confirms that interrogation sessions with the applicant were videotaped:"According to [the 2004 CIA report], the interrogation team decided at the outset to videotape Abu Zubaydah's sessions, primarily in order to document his medical condition. CIA ... examined a total of 92 videotapes, twelve of which recorded the use of EITs. Those twelve tapes included a total of 83 waterboard applications, the majority of which lasted less than ten seconds."36. The 2009 DOJ Report and the 2004 CIA Report state that on 15 November 2002 another HVD, Abd Al Rahim Al Nashiri, was brought to the same facility[2] and that they both were subsequently transferred to another CIA prison. The relevant part of the 2009 DOJ Report reads:"On November 15, 2002, a second prisoner, Abd Al-rahim Al-Nashiri was brought to [REDACTED] facility. [REDACTED] psychologist/interrogators immediately began using EITs, and Al Nashiri reportedly provided lead information about other terrorists during the first day of interrogation. On the twelfth day, the psychologist/interrogators applied the waterboard on two occasions, without achieving any results. Other EITs continued to be used, and the subject eventually became compliant. [REDACTED] 2002, both Al Nashiri and Abu Zubaydah were moved to another CIA black site, [REDACTED] ..."37. The applicant, relying on a Vaughn Index released by the CIA to the ACLU, submits that on 3 December 2002 a cable was sent to a CIA site from the CIA Headquarters entitled "Closing of facility and destruction of classified information". The cable text itself, released in a redacted form, instructed the CIA station to create an inventory of videotapes. As it transpires from the previous cable (see paragraph 35 above), the videotapes referred to documented "interrogation sessions with Abu Zubaydah".Another cable, sent on 9 December 2002, recorded that the inventory had been carried out:"On 3 Dec[ember] [20]02, [redacted] conducted an inventory of all videotapes and other related materials created at [redacted] during the interrogations of al Qa'ida detainees Abu Zubaydah and al Nashiri."38. In the total list of cables from "FIELD" [CIA station] to "HQTRS" [CIA headquarters] relating to Abu Zubaydah's interrogation at the Cat's Eye site, no cables were sent after 4 December 2002.39. In the applicant's view, this, taken together with the materials contained in the 2004 CIA Report and in the 2009 DOJ Report" (see paragraph 35 above ) , demonstrates that on 4 December 2002 both he and Abd Al Rahim Al Nashiri were moved together from the Cat's Eye facility in Bangkok to the same CIA "black site" located elsewhere.2. Transfer to Poland and detention and ill-treatment in the so-called "black site" in Stare Kiejkuty40. The applicant submits that he arrived in Poland on 5 December 2002 and that he was held there in a CIA detention facility in Stare Kiejkuty until 22 September 2003.(a) Transfer41. According to the applicant, on 4-5 December 2002 a CIA contracted aircraft, registered as N63MU with the US Federal Aviation Authority and operated by First Flight Management/Airborne Inc., flew him from Thailand to the Szymany military airbase in Poland[3].The flight flew from Bangkok via Dubai and landed in Szymany, Poland, on 5 December 2002 at 14h56. It departed from there on the same day at 15h43. The flight was disguised under multiple layers of secrecy characterising flights that the CIA chartered to transport persons under the HVD Programme (see also paragraphs 100-102 and 118 below).42. The applicant further submits that the collation of data from multiple sources, including flight plan messages released by Euro Control, invoices, and responses to information disclosure requests (see also paragraphs 100-102 below), confirms that between 3 and 6 December 2002, N63MU travelled the following routes:Take-off Destination Date of flightsElmira, New York (KELM) Washington, DC (KIAD) 3 Dec 2002Washington, DC (KIAD) Anchorage, Alaska (PANC) 3 Dec 2002Anchorage, Alaska (PANC) Osaka, Japan (RJBB) 3 Dec 2002Osaka, Japan (RJBB) Bangkok, Thailand (VTBD) 4 Dec 2002Bangkok,Thailand (VTBD) Dubai,UAE (OMDB/OMDM) 4 Dec 2002Dubai,UAE (OMDB/OMDM) Szymany, Poland (EPSY) 5 Dec 2002Szymany, Poland (EPSY) Warsaw, Poland (EPWA) 5 Dec 2002Warsaw, Poland (EPWA) London Luton, UK (EGGW) 6 Dec 2002London Luton, UK (EGGW) Washington, DC (KIAD) 6 Dec 2002Washington, DC(KIAD) Elmira,New York KELM 6 Dec 200243. A letter dated 23 July 2010 from the Polish Border Guard to the Helsinki Foundation for Human Rights confirms that the airplane N63MU landed at Szymany airport on 5 December 2002 with eight passengers and four crew and departed from there on the same day with no passengers and four crew[4].44. The applicant also refers to a 2007 Council of Europe report ("the 2007 Marty report" see also paragraph 100 below), which identifies N63MU as a "rendition plane" that arrived in Szymany from Dubai at 14h56 on 5 December 2002.(b) Detention and ill treatment45. The applicant submits that during his detention in Stare Kiejkuty from 5 December 2002 to 22 September 2003 he was subjected to the further application of EITs and various other forms of abuse.In this regard, he relies on the only public source of his own description of his experience related in the International Committee for the Red Cross ("the ICRC") Report on the Treatment of Fourteen "High Value Detainees" in CIA Custody of February 2007 ("the 2007 ICRC Report")[5], based on interviews with the applicant and 13 other high-value detainees after they were transferred to Guantànamo Bay (for more details, see paragraphs 109-112 below).The applicant's account of the alleged abuse that he endured while in the CIA custody given to the ICRC refers, among other things, to the following facts:"I was then dragged from the small box, unable to walk properly and put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position. The pressure of the straps on my wounds was very painful. I vomited. The bed was then again lowered to horizontal position and the same torture carried out again with the black cloth over my face and water poured on from a bottle. On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled against the straps, trying to breathe, but it was hopeless. I thought I was going to die. I lost control of my urine. Since then I still lose control of my urine when under stress.I was then placed again in the tall box. While I was inside the box loud music was played again and somebody kept banging repeatedly on the box from the outside. I tried to sit down on the floor, but because of the small space the bucket with urine tipped over and spilt over me. ... I was then taken out and again a towel was wrapped around my neck and I was smashed into the wall with the plywood covering and repeatedly slapped in the face by the same two interrogators as before.I was then made to sit on the floor with a black hood over my head until the next session of torture began. The room was always kept very cold. This went on for approximately one week. During this time the whole procedure was repeated five times. On each occasion, apart from one, I was suffocated once or twice and was put in the vertical position on the bed in between. On one occasion the suffocation was repeated three times. I vomited each time I was put in the vertical position between the suffocation.During that week I was not given any solid food. I was only given Ensure to drink. My head and beard were shaved every day.I collapsed and lost consciousness on several occasions. Eventually the torture was stopped by the intervention of the doctor."46. The applicant submits that a further indication of the nature of the conditions of detention and treatment to which he was subjected in Poland is provided in the authorised conditions of detention and transfer and interrogation techniques applicable at the relevant time (see paragraphs 7, 9-15 and 19-25 above).From 2003 to 2006 the conditions of detention at CIA detention facilities abroad were governed by the Guidelines on Confinement Conditions for CIA Detainees, signed by the CIA Director, George Tenet, on 28 January 2003 (see also paragraph 17 above). According to the guidelines, at least the following "six standard conditions of confinement" were in use in 2003, at the time of his detention in Poland:(i) blindfolds or hooding designed to disorient the detainee and keep him from learning his location or the layout of the detention facility;(ii) removal of hair upon arrival at the detention facility such that the head and facial hair of each detainee is shaved with an electric shaver, while the detainee is shackled to a chair;(iii) incommunicado, solitary confinement;(iv) continuous noise up to 79dB, played at all times, and maintained in the range of 56-58 dB in detainees' cells and 68-72 dB in the walkways;(v) continuous light such that each cell was lit by two 17-watt T-8 fluorescent tube light bulbs, which illuminate the cell to about the same brightness as an office;(vi) use of leg shackles in all aspects of detainee management and movement.47. In combination, this meant that "high-value detainees" such as the applicant were in constantly illuminated cells, substantially cut off from human contact, and under 24-hour-a-day surveillance for more than four years, including throughout his detention in Poland. The conditions of confinement were designed to enhance interrogations in addition to providing security within the facility.3. Transfer from Poland to other CIA "black sites"(a) Transfer48. The applicant submits that on 22 September 2002 he was transferred by means of extraordinary rendition from Polish territory to CIA secret detention facilities in locations believed to include Guantànamo Bay in Cuba, Morocco, Lithuania and Afghanistan, from where he was subsequently transferred back to Guantànamo Bay. In respect of his secret detention and ill-treatment in a detention facility allegedly located in Lithuania, the applicant has lodged a separate application with the Court[6].[COLOR=#000000][FONT=Arial]49. The applicant states that Poland and the US have not disclosed relevant information concerning his transfer from Poland, including the circumstances of the flight that transferred him out of Polish territory. However, several sources indicate that he was transferred from Poland on 22 September 2003, on a Boeing 737 airplane register

[Magda Hassan]

[COLOR=#000000][FONT=Arial]© European Parliament(i) "The Fava inquiry"105. On 18 January 2006 the European Parliament set up a Temporary Committee on Extraordinary Rendition and appointed Mr Claudio Fava as rapporteur with a mandate to investigate the alleged existence of CIA prisons in Europe. The Fava inquiry held 130 meetings and sent delegations to the former Yugoslav Republic of Macedonia, the United States, Germany, the United Kingdom, Romania, Poland and Portugal.It identified at least 1,245 flights operated by the CIA in European airspace between the end of 2001 and 2005.106. The report, deploring the passivity of some EU Member States in the face of illegal CIA operations, as well as the lack of co-operation from the EU Council of Ministers was approved with 382 votes in favour, 256 against with 74 abstentions on 14 February 2007.107. As regards Poland, the report noted that in the light of the available circumstantial evidence it was not possible to "acknowledge or deny that secret detention centres were based in Poland". However, it further noted that seven of the fourteen detainees transferred from a secret detention facility to Guantànamo in September 2006 coincide with those mentioned in a report by ABS News published in December 2005 (see paragraph § 177 of the resolution described in paragraph 109 below) listing the identities of twelve top Al'Qaeda suspects held in Poland.In respect of the Polish Parliament inquiry, the report concluded that it had not been conducted independently and that the statements given to the Committee delegation were contradictory and compromised by confusion about flight logs108. The report censored the lack of cooperation of many member States and of the Council of the EU towards the Temporary Committee. The national governments specifically criticised for their unwillingness to cooperate with Parliament's investigations were those of Austria, Italy, Poland, Portugal and the United Kingdom.(ii) The EU Parliament February 2007 Resolution109. On 14 February 2007, following the examination of the Fava Inquiry report, the European Parliament adopted the Resolution on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners (2006/2200(INI) "the EU February 2007 Resolution"). It read, in so far as relevant, as follows:"The European Parliament,...9. Deplores the fact that the governments of European countries did not feel the need to ask the US Government for clarifications regarding the existence of secret prisons outside US territory;...13. Denounces the lack of cooperation of many Member States, and of the Council of the European Union towards the Temporary Committee; stresses that the behaviour of Member States, and in particular the Council and its Presidencies, has fallen far below the standard that Parliament is entitled to expect;14. Believes that the serious lack of concrete answers to the questions raised by victims, nongovernmental organisations (NGOs), the media and parliamentarians has only served to strengthen the validity of already well-documented allegations;...36. Recalls that the programme of extraordinary rendition is an extra-judicial practice which contravenes established international human rights standards and whereby an individual suspected of involvement in terrorism is illegally abducted, arrested and/or transferred into the custody of US officials and/or transported to another country for interrogation which, in the majority of cases, involves incommunicado detention and torture;...39. Condemns extraordinary rendition as an illegal instrument used by the United States in the fight against terrorism; condemns, further, the condoning and concealing of the practice, on several occasions, by the secret services and governmental authorities of certain European countries;...43. Regrets that European countries have been relinquishing their control over their airspace and airports by turning a blind eye or admitting flights operated by the CIA which, on some occasions, were being used for extraordinary rendition or the illegal transportation of detainees, and recalls their positive obligations arising out of the case law of the European Court of Human Rights, as reiterated by the European Commission for Democracy through Law (Venice Commission);44. Is concerned, in particular, that the blanket overflight and stopover clearances granted to CIA-operated aircraft may have been based, inter alia, on the NATO agreement on the implementation of Article 5 of the North Atlantic Treaty, adopted on 4 October 2001;...48. Confirms, in view of the additional information received during the second part of the proceedings of the Temporary Committee, that it is unlikely that certain European governments were unaware of the extraordinary rendition activities taking place in their territory;...POLAND167. Deplores the glaring lack of cooperation by the Polish Government with the Temporary Committee, in particular when receiving the Temporary Committee delegation at an inappropriate level; deeply regrets that all those representatives of the Polish Government and Parliament who were invited to do so, declined to meet the Temporary Committee;168. Believes that this attitude reflects an overall rejection on the part of the Polish Government of the Temporary Committee and its objective to examine allegations and establish facts;169. Regrets that no special inquiry committee has been established and that the Polish Parliament has conducted no independent investigation;170. Recalls that on 21 December 2005, the Special Services Committee held a private meeting with the Minister Coordinator of Special Services and the heads of both intelligence services; emphasises that the meeting was conducted speedily and in secret, in the absence of any hearing or testimony and subject to no scrutiny; stresses that such an investigation cannot be defined as independent and regrets that the committee released no documentation, save for a single final statement in this regard;171. Notes the 11 stopovers made by CIA-operated aircraft at Polish airports and expresses serious concern about the purpose of those flights which came from or were bound for countries linked with extraordinary rendition circuits and the transfer of detainees; deplores the stopovers in Poland of aircraft that have been shown to have been used by the CIA, on other occasions, for the extraordinary rendition of Bisher Al-Rawi, Jamil El-Banna, Abou Elkassim Britel, Khaled El-Masri and Binyam Mohammed and for the expulsion of Ahmed Agiza and Mohammed El Zar;172. Regrets that following the hearings carried out by the Temporary Committee delegation in Poland, there was confusion and contradictory statements were made about the flight plans for those CIA flights, which were first said not to have been retained, then said probably to have been archived at the airport, and finally claimed to have been sent by the Polish Government to the Council of Europe; acknowledges that in November 2006, the Szymany Airport's management provided the Temporary Committee with partial information on flight plans;...176. Takes note of the declarations made by Szymany Airport employees, and notably by its former manager, according to which:- in 2002, two Gulfsfream jets, and in 2003, four Gulfsfream jets with civilian registration numbers were parked at the edge of the аirport and did not enter customs clearance;- orders were given directly by the regional border guards about the arrivals of the aircraft referred to, emphasising that the аirport authorities should not approach the aircraft and that military staff and services alone were to handle those aircraft and to complete the technical arrangements only after the landing;- according to a former senior official of the аirport, no Polish civilian or military staff were permitted to approach the aircraft;- excessive landing fees were paid in cash - usually between EUR 2,000 and EUR 4,000;- one or two vehicles waited for the arrival of the aircraft;- the vehicles had military registration numbers starting with "H", which are associated with the intelligence training base in nearby Stare Kiejkuty;ÖŠ in one case, a medical emergency vehicle belonging to either the police academy or the military base was involved;- one airport staff member reported following the vehicles on one occasion and seeing them heading towards the intelligence training centre at Stare Kiejkuty;177. Acknowledges that shortly thereafter and in accordance with President George W. Bush's statements on 6 September 2006, a list of the 14 detainees who had been transferred from a secret detention facility to Guantànamo was published; notes that 7 of the 14 detainees had been referred to in a report by ABC News, which was published 9 months previously on 5 December 2005 but withdrawn shortly thereafter from ABC's webpage, listing the names of twelve top Al'Qaeda suspects held in Poland;178. Encourages the Polish Parliament to establish a proper inquiry committee, independent of the government and capable of carrying out serious and thorough investigations;179. Regrets that Polish human rights NGOs and investigative journalists have faced a lack of cooperation from the government and refusals to divulge information;180. Takes note of the statements made by the highest representatives of the Polish authorities that no secret detention centres were based in Poland; considers, however, that in the light of the above circumstantial evidence, it is not possible to acknowledge or deny that secret detention centres were based in Poland;181. Notes with concern that the official reply of 10 March 2006 from Under-Secretary of State Witold Waszykowski to the Secretary-General of the Council of Europe, Terry Davis, indicates the existence of secret cooperation agreements, initialled by the two countries' secret services themselves, which exclude the activities of foreign secret services from the jurisdiction of Polish judicial bodies."(d) The 2007 ICRC Report110. The International Committee of the Red Cross made its first written interventions to the US authorities in 2002, requesting information on the whereabouts of persons allegedly held under US authority in the context of the fight against terrorism. It prepared two reports on undisclosed detention on 18 November 2004 and 18 April 2006. These reports still remain classified.After President Bush publicly confirmed that fourteen terrorist suspects ("high-value detainees") including the applicant detained under the CIA detention programme had been transferred to the military authorities in the US Guantànamo Bay Naval Base (see also paragraphs 26 and 45 above), the ICRC was granted access to those detainees and interviewed them in private from 6 to 11 October and from 4 to 14 December 2006. On this basis, it drafted its Report on the Treatment of Fourteen "High Value Detainees" in CIA Custody of February 2007 "the 2007 ICRC Report" which related to the CIA rendition programme, including arrest and transfers, incommunicado detention and other conditions and treatment. The aim of the report, as stated therein, was to provide a description of the treatment and material conditions of detention of the fourteen detainees concerned during the period they had been held in the CIA programme.The report was (and formally remains) classified as "strictly confidential". It was published by the New York Review of Books on 6 April 2009 and further disseminated via various websites, including the ACLU's site[10].111. The rendition programme as applied to those detainees is, in so far as relevant, related as follows:" 1. MAIN ELEMENTS OF THE CIA DETENTION PROGRAM... The fourteen, who are identified individually below, described being subjected, in particular during the early stages of their detention, lasting from some days up to several months, to a harsh regime employing a combination of physical and psychological ill-treatment with the aim of obtaining compliance and extracting information. This regime began soon after arrest, and included transfers of detainees to multiple locations, maintenance of the detainees in continuous solitary confinement and incommunicado detention throughout the entire period of their undisclosed detention, and the infliction of further ill-treatment through the use of various methods either individually or m combination, in addition to the deprivation of other basic material requirements....2. ARREST AND TRANSFER... The fourteen were arrested in four different countries [Thailand, Pakistan, Somali and the United Arab Emirates]. In each case, they were reportedly arrested by the national police or security forces of the country in which they were arrested.In some cases US agents were present at the time of arrest. All fourteen were detained in the country of arrest for periods ranging from a few days up to one month before their first transfer to a third country ...(reportedly Afghanistan, see below) and from there on to other countries. Interrogation in the country of arrest was conducted by US agents in nearly all cases. In two cases, however, detainees reported having been interrogated by the national authorities, either alone or jointly with US agents:...Hussein Abdul Nashiri was allegedly interrogated for the first month after arrest by Dubai agents....During their subsequent detention, outlined below, detainees sometimes reported the presence of non-US personnel (believed to be personnel of the country in which they were held), even though the overall control of the facility appeared to remain under the control of the US authorities.Throughout their detention, the fourteen were moved from one place to another and were allegedly kept in several different places of detention, probably in several different countries. The number of locations reported by the detainees varied, however ranged from three to ten locations prior to their arrival in Guantànamo in September 2006.The transfer procedure was fairly standardised in most cases. The detainee would be photographed, both clothed and naked prior to and again after transfer. A body cavity check (rectal examination) would be carried out and some detainees alleged that a suppository (the type and the effect of such suppositories was unknown by the detainees), was also administered at that moment.The detainee would be made to wear a diaper and dressed in a tracksuit. Earphones would be placed over his ears, through which music would sometimes be played. He would be blindfolded with at least a cloth tied around the head and black goggles. In addition, some detainees alleged that cotton wool was also taped over their eyes prior to the blindfold and goggles being applied. Mr Abu Zubaydah alleged that during one transfer operation the blindfold was tied very tightly resulting in wounds to his nose and ears. He does not know how long the transfer took but, prior to the transfer, he reported being told by his detaining authorities that he would be going on a journey that would last twenty-four to thirty hours.The detainee would be shackled by hands and feet and transported to the airport by road and loaded onto a plane. He would usually be transported in a reclined sitting position with his hands shackled in front. The journey times obviously varied considerably and ranged from one hour to over twenty-four to thirty hours. The detainee was not allowed to go to the toilet and if necessary was obliged to urinate or defecate into the diaper. On some occasions the detainees were transported lying flat on the floor of the plane and/or with their hands cuffed behind their backs. When transported in this position the detainees complained of severe pain and discomfort.In addition to causing severe physical pain, these transfers to unknown locations and unpredictable conditions of detention and treatment placed mental strain on the fourteen, increasing their sense of disorientation and isolation. The ability of the detaining authority to transfer persons over apparently significant distances to secret locations in foreign countries acutely increased the detainees' feeling of futility and helplessness, making them more vulnerable to the methods of ill-treatment described below.The ICRC was informed by the US authorities that the practice of transfers was linked specifically to issues that included national security and logistics, as opposed to being an integral part of the program, for example to maintain compliance. However, in practice, these transfers increased the vulnerability of the fourteen to their interrogation, and was performed in a manner (goggles, earmuffs, use of diapers, strapped to stretchers, sometimes rough handling) that was intrusive and humiliating and that challenged the dignity of the persons concerned. As their detention was specifically designed to cut off contact with the outside world and emphasise a feeling of disorientation and isolation, some of the time periods referred to in the report are approximate estimates made by the detainees concerned. For the same reasons, the detainees were usually unaware of their exact location beyond the first place of detention in the country of arrest and the second country of detention, which was identified by all fourteen as being Afghanistan. This report will not enter into conjecture by referring to possible countries or locations of places of detention beyond the first and second countries of detention, which are named, and will refer, where necessary, to subsequent places of detention by their position in the sequence for the detainee concerned (e.g.. third place of detention, fourth place of detention). The ICRC is confident that the concerned authorities will be able to identify from their records which place of detention is being referred to and the relevant period of detention....1.2. CONTINUOUS SOLITARY CONFINEMENT AND INCOMMUNICADO DETENTIONThroughout the entire period during which they were held in the CIA detention program which ranged from sixteen months up to almost four and a half years and which, for eleven of the fourteen was over three years the detainees were kept in continuous solitary confinement and incommunicado detention. They had no knowledge of where they were being held, no contact with persons other than their interrogators or guards. Even their guards were usually masked and, other than the absolute minimum, did not communicate in any way with the detainees. None had any real let alone regular contact with other persons detained, other than occasionally for the purposes of inquiry when they were confronted with another detainee. None had any contact with legal representation. The fourteen had no access to news from the outside world, apart from in the later stages of their detention when some of them occasionally received printouts of sports news from the internet and one reported receiving newspapers.None of the fourteen had any contact with their families, either in written form or through family visits or telephone calls. They were therefore unable to inform their families of their fate. As such, the fourteen had become missing persons. In any context, such a situation, given its prolonged duration, is clearly a cause of extreme distress for both the detainees and families concerned and itself constitutes a form of ill-treatment.In addition, the detainees were denied access to an independent third party. In order to ensure accountability, there is a need for a procedure of notification to families, and of notification and access to detained persons, under defined modalities, for a third party, such as the ICRC. That this was not practiced, to the knowledge of the ICRC, neither for the fourteen nor for any other detainee who passed through the CIA detention program, is a matter of serious concern.1.3. OTHER METHODS OF ILL-TREATMENT... [T]he fourteen were subjected to an extremely harsh detention regime, characterised by ill-treatment. The initial period of interrogation, lasting from a few days up to several months was the harshest, where compliance was secured by the infliction of various forms of physical and psychological ill-treatment. This appeared to be followed by a reward based interrogation approach with gradually improving conditions of detention, albeit reinforced by the threat of returning to former methods.The methods of ill-treatment alleged to have been used include the following: Suffocation by water poured over a cloth placed over the nose and mouth, alleged by three of the fourteen. Prolonged stress standing position, naked, held with the arms extended and chained above the head, as alleged by ten of the fourteen, for periods from two or three days continuously, and for up to two or three months intermittently, during which period toilet access was sometimes denied resulting in allegations from four detainees that they had to defecate and urinate over themselves. Beatings by use of a collar held around the detainees' neck and used to forcefully bang the head and body against the wall, alleged by six of the fourteen. Beating and kicking, including slapping, punching, kicking to the body and face, alleged by nine of the fourteen. Confinement in a box to severely restrict movement alleged in the case of one detainee. Prolonged nudity alleged by eleven of the fourteen during detention, interrogation and ill-treatment; this enforced nudity lasted for periods ranging from several weeks to several months. Sleep deprivation was alleged by eleven of the fourteen through days of interrogation, through use of forced stress positions (standing or sitting), cold water and use of repetitive loud noise or music. One detainee was kept sitting on a chair for prolonged periods of time. Exposure to cold temperature was alleged by most of the fourteen, especially via cold cells and interrogation rooms, and for seven of them, by the use of cold water poured over the body or, as alleged by three of the detainees, held around the body by means of a plastic sheet to create an immersion bath with just the head out of the water. Prolonged shackling of hands and/or feet was alleged by many of the fourteen. Threats of ill-treatment to the detainee and/or his family, alleged by nine of the fourteen. Forced shaving of the head and beard, alleged by two of the fourteen. Deprivation/restricted provision of solid food from 3 days to i month after arrest, alleged by eight of the fourteen.In addition, the fourteen were subjected for longer periods to a deprivation of access to open air, exercise, appropriate hygiene facilities and basic items in relation to interrogation, and restricted access to the Koran linked with interrogation....For the purposes of clarity in this report, each method of ill-treatment mentioned below has been detailed separately. However, each specific method was in fact applied in combination with other methods, either simultaneously, or in succession. Not all of these methods were used on all detainees, except in one case, namely that of Mr Abu Zubaydah, against whom all of the methods outlined below were allegedly used.1.3.1. SUFFOCATION BY WATERThree of the fourteen alleged that they were repeatedly subjected to suffocation by water. They were: Mr Abu Zubaydah, Mr Khaled Shaik Mohammedand Mr Al Nashiri.In each case, the person to be suffocated was strapped to a tilting bed and a cloth was placed over the face, covering the nose and mouth. Water was then poured continuously onto the cloth, saturating it and blocking off any air so that the person could not breathe. This form of suffocation induced a feeling of panic and the acute impression that the person was about to die. In at least one case, this was accompanied by incontinence of the urine. At a point chosen by the interrogator the cloth was removed and the bed was rotated into a head-up and vertical position so that the person was left hanging by the straps used to secure him to the bed. The procedure was repeated at least twice, if not more often, during a single interrogation session. Moreover, this repetitive suffocation was inflicted on the detainees during subsequent sessions. The above procedure is the so-called water boarding' technique....1.3.2. PROLONGED STRESS STANDINGTen of the fourteen alleged that they were subjected to prolonged stress standing positions, during which their wrists were shackled to a bar or hook in the ceiling above the head for periods ranging from two or three days continuously, and for up to two or three months intermittently. All those detainees who reported being held in this position were allegedly kept naked throughout the use of this form of ill-treatment.For example, ... Al Nashiri [alleged that he was shackled in this position] for at least two days in Afghanistan and again for several days in his third place of detention....1.3.3. BEATING BY USE OF A COLLARSix of the fourteen alleged that an improvised thick collar or neck roll was placed around their necks and used by their interrogators to slam them against the walls. For example, Mr Abu Zubaydah commented that when the collar was first used on him in his third place of detention, he was slammed directly against a hard concrete wall. He was then placed in a tall box for several hours (see Section 1.3.5., Confinement inboxes). After he was taken out of the box he noticed that a sheet of plywood had been placed against the wall. The collar was then used to slam him against the plywood sheet. He thought that the plywood was in order to absorb some of the impact so as to avoid the risk of physical injury. Mr Abu Zubaydah also believed that his interrogation was a form of experimentation with various interrogation techniques. Indeed some forms of ill-treatment were allegedly used against him that were not reported to have been used on other detainees. He claimed that he was told by one of the interrogators that he was one of the first to receive these interrogation techniques."...1.3.5. CONFINEMENT IN A BOXOne of the fourteen reported that confinement inside boxes was used as a form of ill-treatment. Mr Abu Zubaydah alleged that during an intense period of his interrogation in Afghanistan in 2002 he was held in boxes that had been specially designed to constrain his movement. One of the boxes was tall and narrow and the other was shorter, forcing him to crouch down. Mr Abu Zubaydah stated that: As it was not high enough even to sit upright, I had to crouch down. It was very difficult because of my wounds. The stress on my legs held in this position meant that my wounds both in the leg and stomach became very painful. I think this occurred about three months after my last operation". He went on to say that a cover was placed over the boxes while he was inside making it hot and difficult to breathe. The combination of sweat, pressure and friction from the slight movement possible to try to find a comfortable position, meant that the wound on his leg began to reopen and started to bleed. He does not know how long he remained in the small box; he says that he thinks he may have slept or fainted. The boxes were used repeatedly during a period of approximately one week in conjunction with other forms of ill-treatment, such as suffocation by water, beatings and use of the collar to slam him against the wall, sleep deprivation, loud music and deprivation of solid food. During this period, between sessions of ill-treatment he was made to sit on the floor with a black hood over his head until the next session began."1.3.6. PROLONGED NUDITYThe most common method of ill-treatment noted during the interviews with the fourteen was the use of nudity. Eleven of the fourteen alleged that they were subjected to extended periods of nudity during detention and interrogation, ranging from several weeks continuously up to several months intermittently....Mr Abu Zubaydah alleged that after spending several weeks in hospital following arrest he was transferred to Afghanistan where he remained naked, during interrogation, for between one and a half to two months. He was then examined by a woman he assumed to be a doctor who allegedly asked why he was still being kept naked. Clothes were given to him the next day. However, the following day, these clothes were then cut off his body and he was again kept naked. Clothes were subsequently provided or removed according to how cooperative he was perceived by his interrogators."1.3.7 SLEEP DEPRIVATION AND USE OF LOUD MUSICEleven of the fourteen alleged that they were deprived of sleep during the initial interrogation phase from seven days continuously to intermittent sleep deprivation that continued up to two or three months after arrest. Sleep was deprived in various ways, and therefore overlaps with some of the other forms of ill-treatment described in this section, from the use of loud repetitive noise or music to long interrogation sessions to prolonged stress standing to spraying with cold water.For example, Mr Abu Zubaydah alleged that, while detained in Afghanistan I was kept sitting on a chair, shackled by hands and feet for two to three weeks. During this time I developed blisters on the underside of my legs due to the constant sitting. I was only allowed to get up from the chair to go to the toilet, which consisted of a bucket'. He alleged that he was constantly deprived of sleep during this period If I started to fall asleep a guard would come and spray water in my face', he said. The cell was kept very cold by the use of air-conditioning and very loud shouting' music was constantly playing on an approximately fifteen minute repeat loop twenty-four hours a day. Sometimes the music stopped and was replaced by a loud hissing or crackling noise.
1.3.8. EXPOSURE TO COLD TEMPERATURE/COLD WATERDetainees frequently reported that they were held for their initial months of detention in cells which were kept extremely cold, usually at the same time as being kept forcibly naked. The actual interrogation room was also often reported to be kept cold. Requests for clothing or for blankets went unanswered. For example, Mr Abu Zubaydah alleged that his cell was excessively cold throughout the nine months he spent in Afghanistan.1.3.10. THREATSNine of the fourteen alleged that they had been subjected to threats of ill-treatment. Seven of these cases took the form of a verbal threat, including of ill-treatment in the form of water boarding', electric shocks, infection with HIV, sodomy of the detainee and the arrest and rape of his family, torture, being brought close to death, and of an interrogation process to which no rules applied'.Mr Abu Zubaydah alleged that, in his third place of detention, he was told by one of the interrogators that he was one of the first to receive these interrogation techniques,'so no rules applied'.... Mr Al Nashiri alleged that, in his third place of detention, he was threatened with sodomy, and with the arrest and rape of his family.1. 3.11 . FORCED SHAVINGTwo of the fourteen alleged that their heads and beards were forcibly shaved. Mr Abu Zubaydah alleged that his head and beard were shaved during the transfer to Afghanistan. ...1.3.12. DEPRIVATION/RESTRICTED PROVISION OF SOLID FOODEight of the fourteen alleged that they were deprived of solid food for periods ranging from three days to one month. This was often followed by a period when the provision of food was restricted and allegedly used as an incentive for cooperation. Two other detainees alleged that, whilst they were not totally deprived of solid food, food was provided intermittently or provided in restricted amounts.For example, Mr Abu Zubaydah alleged that in Afghanistan, during the initial period of two to three weeks while kept constantly sitting on a chair, he was not provided with any solid food, but was provided with Ensure (a nutrient drink) and water. After about two to three weeks he began to receive solid food (rice) to eat on a daily, once a day, basis. Approximately one month later, during a resumption of intense questioning he was again deprived of food for approximately one week and only given Ensure and water.1.4. FURTHER ELEMENTS OF THE DETENTION REGIMEThe conditions of detention under which the fourteen were held, particularly during the earlier period of their detention, formed an integral part of the interrogation process as well as an integral part of the overall treatment to which they were subjected as part of the CIA detention program. This report has already drawn attention to certain aspects associated with basic conditions of detention, which were clearly manipulated in order to exert pressure on the detainees concerned.In particular, the use of continuous solitary confinement and incommunicado detention, lack of contact with family members and third parries, prolonged nudity, deprivation/restricted provision of solid food and prolonged shackling have already been described above.The situation was further exacerbated by the following aspects of the detention regime: Deprivation of access to the open air Deprivation of exercise Deprivation of appropriate hygiene facilities and basic items in pursuance of interrogation Restricted access to the Koran linked with interrogation.These aspects cannot be considered individually, but must be understood as forming part of the whole picture. As such, they also form part of the ill-treatment to which the fourteen were subjected....Basic materials such as toothbrushes, toothpaste, soap, towels, toilet paper, clothes, underwear, blankets and mattress were not provided at all during the initial detention period, in some instances lasting several months. The timing of initial provision and continued supply of all these items was allegedly linked with compliance and cooperation on the part of the detainee. Even after being provided, these basic items allegedly were sometimes removed in order to apply pressure for purposes of interrogation.In the early phase of interrogation, from a few days to several weeks, access to shower was totally denied and toilet, as mentioned above, was either provided in the form of a bucket or not provided at allin which case those detainees shackled in the prolonged stress standing position had to urinate and defecate on themselves and remain standing in their own bodily fluids for periods of several days (see Section 1.3.2. Prolonged Stress Standing).112. Annex I to the 2007 ICRC Report contains examples of excerpts from some of the interviews conducted with the fourteen prisoners. These excerpts are reproduced verbatim. The verbatim record of the interview with the applicant gives details of his ill-treatment in the CIA custody "regarding his detention in Afghanistan where he was held for approximately nine months from May 2002 to February 2003". It also states that "he had previously been held for what he believes were several weeks and had several operations to severe gunshot injuries sustained at the time of arrest".(e) United Nations Reports(i) The 2010 UN Joint Study113. On 19 February 2010 the Human Rights Council of United Nations Organisation released the "Joint Study on Global Practices in Relation to Secret Detention in the Context of Countering Terrorism of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism" "the 2010 UN Joint Study" (A/HRC/1342).114. In the summary, the experts explained their methodology as follows:"In conducting the present study, the experts worked in an open, transparent manner. They sought inputs from all relevant stakeholders, including by sending a questionnaire to all States Members of the United Nations. Several consultations were held with States, and the experts shared their findings with all States concerned before the study was finalized. Relevant ехсerpts of the report were shared with the concerned States on 23 and 24 December 2009.In addition to United Nations sources and the responses to the questionnaire from 44 States, primary sources included interviews conducted with persons who had been held in secret detention, family members of those held captive, and legal representatives of detainees. Flight data were also used to corroborate information. In addition to the analysis of the policy and legal decisions taken by States, the aim of the study was also to illustrate, in concrete terms, what it means to be secretly detained, how secret detention can facilitate the practice of torture or inhuman and degrading treatment, and how the practice of secret detention has left an indelible mark on the victims, and on their families as well."115. In respect of secret detention in general, the experts stated the following:"Secret detention violates the right to personal liberty and the prohibition of arbitrary arrest or detention. No jurisdiction should allow for individuals to be deprived of their liberty in secret for potentially indefinite periods, held outside the reach of the law, without the possibility of resorting to legal procedures, including habeas corpus. Secret detainees are typically deprived of their right to a fair trial when State authorities do not intend to charge or try them. Even if detainees are criminally charged, the secrecy and insecurity caused by the denial of contact to the outside world and the fact that family members have no knowledge of their whereabouts and fate violate the presumption of innocence and are conducive to confessions obtained under torture or other forms of ill-treatment. At the same time, secret detention amounts to an enforced disappearance. If resorted to in a widespread or systematic manner, secret detention may even reach the threshold of a crime against humanity.Every instance of secret detention is by definition incommunicado detention. Prolonged incommunicado detention may facilitate the perpetration of torture and other cruel, inhuman or degrading treatment or punishment, and may in itself constitute such treatment. The suffering caused to family members of a secretly detained (namely, disappeared) person may also amount to torture or other form of ill-treatment, and at the same time violates the right to the protection of family life.It is not only States whose authorities keep the detainee in secret custody that are internationally responsible for violations of international human rights law. The practice of proxy detention', involving the transfer of a detainee from one State to another outside the realm of any international or national legal procedure (rendition' or extraordinary rendition'), often in disregard of the principle of non-refoulement, also involves the responsibility of the State at whose behest the detention takes place. The Geneva Conventions, applicable to all armed conflicts, also prohibit secret detention under any circumstances."116. The experts also referred to State complicity in secret detention:"The experts also address the level of involvement and complicity of a number of countries. For purposes of the study, they provide that a State is complicit in the secret detention of a person when it (a) has asked another State to secretly detain a person; (b) knowingly takes advantage of the situation of secret detention by sending questions to the State detaining the person, or solicits or receives information from persons kept in secret detention; © has actively participated in the arrest and/or transfer of a person when it knew, or ought to have known, that the person would disappear in a secret detention facility, or otherwise be detained outside the legally regulated detention system; (d) holds a person for a short time in secret detention before handing them over to another State where that person will be put in secret detention for a longer period; and (e) has failed to take measures to identify persons or airplanes that were passing through its airports or airspace after information of the CIA programme involving secret detention has already been revealed."117. In relation to Poland, the report (in paragraphs 114-118 stated, among other things, the following:"114. In Poland, eight high-value detainees, ... were allegedly held between 2003 and 2005 in the village of Stare Kiejkuty. ... The Polish press subsequently claimed that the authorities of Poland during the term of office of President Aleksander Kwasniewski and Prime Minister Leszek Miller had assigned a team of around a dozen' intelligence officers to cooperate with the United States on Polish soil, thereby putting them under exclusive American control and had permitted American special purpose planes' to land on the territory of Poland. The existence of the facility has always been denied by the Government of Poland and press reports have indicated that it is unclear what Polish authorities knew about the facility.115. While denying that any terrorists had been detained in Poland, Zbigniew SiemiÄ…tkowski, the head of the Polish Intelligence Agency in the period 2002-2004, confirmed the landing of CIA flights. Earlier, the Marty report had included information from civil aviation records revealing how CIA-operated planes used for detainee transfers landed at Szymany airport, near the town of Szczytno, in Warmia-Mazuria province in north-eastem Poland ... between 2003 and 2005. Marty also explained how flights to Poland were disguised by using fake flight plans.116. In research conducted for the present study, complex aeronautical data, including data strings' retrieved and analysed, have added further to this picture of flights disguised using fake flight plans and also front companies. For example, a flight from Bangkok to Szymany, Poland, on 5 December 2002 (stopping at Dubai) was identified, though it was disguised under multiple layers of secrecy, including charter and sub-contracting arrangements that would avoid there being any discernible fingerprints' of a United States Government operation, as well as the filing of dummy' flight plans. The experts were made aware of the role of the CIA chief aviation contractor through sources in the United States. The modus operandi was to charter private aircraft from among a wide variety of companies across the United States, on short-term leases to match the specific needs of the CIA Air Branch. Through retrieval and analysis of aeronautical data, including data strings, it is possible to connect the aircraft N63MU with three named American corporations, each of which provided cover in a different set of aviation records for the operation of December 2002. ... Nowhere in the aviation records generated by this aircraft is there any explicit recognition that it carried out a mission associated with the CIA. Research for the present study also made clear that the aviation services provider Universal Trip Support Services filed multiple dummy flight plans for the N63MU in the period from 3 to 6 December 2002. In a report, the CIA Inspector General discussed the interrogations of Abu Zubaydah and Abd al-Rahim al-Nashiri. Two United States sources with knowledge of the high-value detainees programme informed the experts that a passage revealing that enhanced interrogation of al-Nashiri continued through 4 December 2002" and another, partially redacted, which stated that: However, after being moved, al-Nashiri was thought to have been withholding information;', indicate that it was at this time that he was rendered to Poland. The passages are partially redacted because they explicitly state the facts of al-Nashiri's rendition details which remain classified as Top Secret'....118. ...While the experts appreciate the fact that an investigation has been opened into the existence of places of secret detention in Poland, they are concerned about the lack of transparency into the investigation. After 18 months, still nothing is known about the exact scope of the investigation.The experts expect that any such investigation would not be limited to the question of whether Polish officials had created an extraterritorial zone' in Poland, but also whether officials were aware that enhanced interrogation techniques' were applied there."(ii) The 2010 UN Observations118. The UN Human Rights Committee, in its Concluding Observations on the sixth periodic report of the Republic of Poland of 27 October 2010 ("the UN 2010 Observations") stated, among other things, the following:"15. The Committee is concerned that a secret detention centre reportedly existed at Stare Kiejkuty, a military base located near Szymany airport, and that renditions of suspects allegedly took place to and from that airport between 2003 and 2005. It notes with concern that the investigation conducted by the Fifth Department for Organized Crime and Corruption of the Appellate Prosecution Authority in Warsaw is not yet concluded ...The State party should initiate a prompt, thorough, independent and effective inquiry, with full investigative powers to require the attendance of persons and the production of documents, to investigate allegations of the involvement of Polish officials in renditions and secret detentions, and to hold those found guilty accountable, including through the criminal justice system. It should make the findings of the investigation public."(f) The CHRGJ Report119. On 9 March 2010 the Centre for Human Rights and Global Justice ("the CHRGJ") disclosed its report entitled "Data string analysis submitted as evidence of Polish involvement in US Extraordinary Rendition and secret detention program" the CHRGJ Report. A more detailed description of the report is included in paragraphs 99-102 of the Statement of facts in the case of Al Nashiri v. Poland (no. }]28761/11).The CHRGJ Report analysed in detail data strings relating to flight N379P on which, as the applicant submits, he was transferred by the CIA from the Polish territory to Guantànamo Bay in Cuba (see also paragraphs 48-49 above). It confirmed that a Boeing 737 aircraft, registered with the US Federal Aviation Administration as N313P, embarked from Dulles Airport in Washington, D.C. on Saturday 20 September 2003 at 22h02m GMT and undertook a four-day flight circuit, during which it landed in and departed from six different foreign countries. These six countries, in the order in which the aircraft landed there, were: the Czech Republic, Uzbekistan, Afghanistan, Poland, Romania and Morocco. The aircraft flew from Rabat, Morocco to Guantànamo Bay on the night of Tuesday September 23, 2003, landing in the morning of Wednesday 24 September 2003.(g) The 2010 Amnesty International Report120. On 15 November 2010 Amnesty International published a report entitled "Open secret: Mounting evidence of Europe's complicity in rendition and secret detention". It compiled the latest evidence of European countries' complicity in the CIA's programmes in the context of the fight against terrorism in the aftermath of the 11 September 2001 attacks in the USA.A detailed rendition of the passages relating to Poland is included in paragraph 104 of the Statement of facts in the case of Al Nashiri v. Poland.8. Parliamentary inquiry in Poland121. In November-December 2005 a brief parliamentary inquiry into allegations that a secret CIA detention site existed in the country was conducted in Poland. The inquiry was conducted by the Parliamentary Committee for Special Services (Komisja do Spraw SÅ‚użb Specjanych) behind closed doors and none of its findings have been made public. The only public statement that the Polish Government made was at a press conference when they announced that the inquiry had not turned up anything "untoward". According to the 2006 Marty Report (see paragraph 92 above), "this exercise was insufficient in terms of the positive obligation to conduct a credible investigation of credible allegations of serious human rights violations".The 2011 Marty Report, in paragraph 40, also refers to the Polish parliamentary inquiry, stating, among other things that "the only public indication given by the commission was that there ha[d] not been any CIA prisons in Poland" (see also paragraph 104 above),9. Criminal investigation in Poland(a) Information supplied by the Polish Government in their written observations filed in the case of Al Nashiri v. Poland122. On 11 March 2008 the Warsaw Regional Prosecutor (Prokurator OkrÄ™gowy) opened an investigation against persons unknown (Å›ledztwo w sprawie) concerning secret CIA prisons in Poland.On 11 July 2008 the investigation was taken over by the State Prosecutor (Prokurator Krajowy) and referred to the 10thDepartment of the Bureau for Organised Crime and Corruption.123. On 1 April 2009 the case was transmitted to the Warsaw Prosecutor of Appeal (Prokurator Apelacyjny) and was then conducted by the 5th Department for Organised Crime and Corruption of the Warsaw Prosecutor of Appeal's Office until 26 January 2012. On that date, by virtue of the Prosecutor General's decision, the case was transferred to the Kraków Prosecutor of Appeal (see also paragraph 144 below).124. Referring to the scope of the investigation, the Government stated that "the subject matter ... covers, among others, alleged commission of offences under Article 231 § 1 of the Criminal Code and other, relating to alleged abuse of powers by public officials, acting to the detriment of the public interest, in connection with the alleged use of secret detention centres located in the territory of Poland by the Central Intelligence Agency to transport and illegally detain persons suspected of terrorism.125. In the course of the investigation evidence form 62 persons have been heard. The case-file comprises 21 volumes. Procedural steps taken in the investigation include "checking information contained in Dick Marty's reports drafted for the Council of Europe in 2006-2007 and in the report of the European Parliament concerning possible detention in the territory of Poland of persons suspected of terrorism, as well as the use against them of illegal methods of interrogation". The Government add that the actions taken by the prosecution "concerned procedural verification of the circumstances of the landings, while omitting border and customs control in the Szymany airport used by the [CIA]".Border Guard and Customs Service officers, the staff of the Szymany airport, air traffic controllers, one member of the European Parliament's Commission that had carried out an inquiry into the circumstances surrounding the CIA operations in Poland at the relevant time were heard as witnesses. The PANSA provided materials concerning aircraft landings in the Szymany airport (see also paragraph 129 and 137 below).126. According to the Government, "due to the complex legal nature of the proceedings, opinion of experts on public international lawhas been sought in order to provide answers to questions concerning international law regulating the establishment and running of detention centres for persons suspected of terrorism and the status of such persons".127. The Polish authorities addressed two requests for legal assistance to the US authorities.The first request for information concerning the landing of US aircraft in the Szymany airport, dated 18 March 2009, was declined by the US Department of Justice on 7 October 2009 (see also paragraph 134 below).The second request, dated 9 March 2011, concerned, according to the Government's description, "the need to perform acts with the participation of two persons who have the status of injured persons and whose representatives declared their participation in the preparatory proceedings". One of those persons was Mr Al Nashiri. As of 5 September 2012 (the date on which the Government filed their observations) there had been no answer to the request (see also paragraph 139 below).128. The Polish authorities also requested the ICRC for information but their request was denied, as the Government state, "on the grounds of the ICRC's procedure". The US lawyers for Mr Al Nashiri and for the second injured party were heard but gave fragmentary depositions, invoking the principle of client-lawyer confidentiality.(b) Facts as supplied by the applicant and supplemented by the facts related in the case of Al Nashiri v. Poland129. The investigation concerning secret CIA prisons in Poland started on 11 March 2008.On 9 April 2009, in response to a request for information by the Helsinki Foundation for Human Rights, the Head of the Bureau for Organised Crime and Corruption in the State Prosecutor's Office (Biuro ds. PrzestÄ™pczoÅ›ci Zorganizowanej i Korupcji Prokuratuy Krajowej) stated that:"...in reference to the Resolution of the European Parliament regarding the investigation into the alleged use of European countries by the Central Intelligence Agency of the United States to transport and illegally detained prisoners, the 5th Department for Organized Crime and Corruption of the Warsaw Prosecutor of Appeal is conducting the investigation in the case AP V DS. }]37/09 regarding the abuse of power by State officials, namely the offence defined in Article 231 § 1 of the Criminal Code.The proceedings were commenced on March 11, 2008 by the Warsaw [Regional Prosecutor].In the course of the investigation there are conducted open and classified procedural activities.Within open activities, landings of American aircrafts in Szymany airport were confirmed. The information quoted in your letter, sourced by the web site, does not correspond with the exact wording of the prosecutor. The prosecutor possesses information over the report of the International Red Cross.The interest of the Helsinki Foundation for Human Rights of the case is obvious. Nevertheless the presentation of prosecutor's intentions, due to the fact that a wide range of procedural activities is classified, is not possible,Taking into consideration the above, it is not possible to indicate the precise date of the termination of the investigation."130. On an unspecified date in 2009, in responding to a questionnaire from the UN experts working on the 2010 UN Joint Study (see paragraphs 113-117 above), the Polish authorities stated the following:"On 11 March 2008, the [Regional] Prosecutor's Office in Warsaw instituted proceedings on the alleged existence of so-called secret CIA detention facilities in Poland as well as the illegal transport and detention of persons suspected of terrorism. On 1 April 2009, as result of the reorganization of the Public Prosecutor's Office, the investigation was referred to the Warsaw [Prosecutor of Appeal]. In the course of investigation, the prosecutors gathered evidence, which is considered classified or secret. In order to secure the proper course of proceedings, the prosecutors who conduct the investigation are bound by the confidentiality of the case. In this connection, it is impossible to present any information regarding the findings of the investigation. Once the proceedings are completed and its results and findings are made public the Government of Poland will present and submit all necessary or requested information to any international body."131. On 21 September 2010 the Polish lawyer for Mr Al Nashiri filed an application with the Warsaw Regional Prosecutor, asking for an investigation into his detention and treatment in Poland to be opened.132. On 22 September 2010, Mr J. Mierzewski, the investigating prosecutor from the 5th Department of Organised Crime and Corruption of the Warsaw Prosecutor of Appeal's Office, informed the applicant's lawyer that there was no need to conduct a separate investigation into the circumstances surrounding the applicant's detention and treatment as those matters would be dealt with in the investigation initiated on 11 March 2008.133. In October 2010, the prosecutor granted injured party (pokrzywdzony) status to Mr Al Nashiri.134. In a letter of 15 December 2010, replying to the Helsinki Foundation for Human Rights' request for information, the prosecution authorities revealed that on 18 March 2009 the Warsaw Prosecutor of Appeal had submitted a legal assistance request to the US judicial authorities regarding the investigation. On 7 October 2009 the US Department of Justice informed the Polish authorities that under Article 3(1)© of the Mutual Legal Assistance in Criminal Matters Agreement ("the MLAT") signed by the United States and Poland, the request had been refused and American authorities considered the case closed (see also paragraph 127 above). The Prosecutor did not publicly disclose the content of the mutual assistance request due to "State secrecy".135. On 16 December 2010 the Polish lawyer for the applicant and Interights filed an application with the Warsaw Regional Prosecutor, reporting the commission of offences against the applicant during his detention in Poland and asking for him to be granted injured-party status in the investigation. The application described how the applicant had been transferred by the CIA from Thailand to Poland on 5 December 2002 and related the conditions of his detention and his ill-treatment over the subsequent months, during which as he alleged he had been held in Poland. It included evidence of the roles played by the CIA agents and Polish officials in the HVD Programme in Poland, the rendition flights that transported the applicant into and out of Poland, the names of private companies involved in those flights, and the operation of the CIA secret prison site in Stare Kiejkuty.136. On 11 January 2011 the Warsaw Regional Prosecutor granted the applicant injured-party status in the investigation.137. In a letter of 4 February 2011 addressed to the Helsinki Foundation for Human Rights the prosecutor provided information about certain procedural actions undertaken in the course of the investigation. According to the letter, steps undertaken by the prosecutors were related to the verification of the landings without clearance by the CIA planes between 2002 and 2003 at the Szymany airport. Evidence from Border Guard and Customs Service officers had been heard, as well from employees of the Szymany airport, flight controllers and a member of the European Parliament's Commission that carried out an inquiry into the circumstances under investigation (see also paragraph 125 above).138. Apparently on 17 February 2011 the Warsaw Deputy Prosecutor of Appeal, Mr R. Majewski, and the investigating prosecutor, Mr J. Mierzewski, ordered that evidence from three experts on public international law on the issues relevant for the investigation be obtained (see also paragraph 126 above). The contents of the order, questions and answers from the experts were not made public but were leaked to the press and published by Gazeta Wyborcza daily on 30 May 2011. There was no subsequent disclaimer from the prosecution. The text of the prosecutors' order read, in so far as relevant, as follows:"... Order on obtaining a report appointing an expert in the case concerning abuse of power by State officials, i.e. the offence defined in Article 231 and others [of the Criminal Code].Robert Majewski, Warsaw Deputy Prosecutor of Appeal, and Jerzy Mierzewski, the prosecutor of the Warsaw Prosecutor of Appeal's Office, decided to appoint a team of experts on the public international law, i.e. ... in order to establish whether [text of ten questions reproduced below]."The questions and corresponding answers, as published in Gazeta Wyborcza, read as follows:"1. Are there any provisions of public international lawregulating the setting up and functioning of facilities for holding persons suspected of terrorist activity? If so, which of them are binding on Poland?Answer: Terrorism is a criminal offence and is prosecuted on the basis of legal provisions of a given State.2. Are there any provisions of public international law permitting a facility for holding persons suspected of terrorist activity to be excluded from jurisdiction of the State on whose territory such a facility has been set up? If so, which of them are binding on Poland?Answer: There are no such provisions. The setting up of such a facility would amount to a breach of the Constitution and an offence against sovereignty of the R[epublic of] P[oland].3. In the light of international public law, what is the legal status of an arrested person suspected of terrorist activity?Answer: This is regulated by criminal law of a given country unless [a person] is a prisoner of war.4. What influence on the legal status of an arrested person suspected of terrorist activity does have the fact that the arresting authority considers that the person belongs to the organisation described as Al-Khaida?Answer: It does not have any importance. Membership in Al-Khaida is not separately regulated by any provisions of criminal law.5. In the light of the provisions of international public law, what importance for the legal status of an arrested person suspected of terrorist activity does have the fact that the person has been arrested outside the territory which is occupied, seized or on which an armed conflict takes place?Answer: Such arrest can be qualified as unlawful abduction.6. Can a person suspected of terrorist activity, arrested outside the territory of the Republic of Poland and subsequently held in a facility in Poland, be characterised as a person referred to in Article 123 § 1-4 of the Criminal Code [in general, persons protected by the 1949 Geneva Conventions: members of armed forces who have laid down their arms, wounded, sick, shipwrecked, medical personnel, priests, prisoners of war or civilians from the territory occupied, seized or on which an armed conflict takes place or other persons protected by international law during an armed conflict]?Answer: Such a qualification is justified.7. Is the holding of a person suspected of terrorist activity, in respect of whom no charges were laid and no detention order has been issued under Polish law, in breach of public international law in terms of deprivation of liberty or the right to an independent and impartial court or limitations on his defence rights in criminal proceedings?Answer: Yes and it should be prosecuted.8. In the light of international public law, can the methods of interrogation and treatment of detainees suspected of terrorist activity as described in the CIA documents supplied by the injured parties be considered torture, cruel or inhuman treatment of these persons?Answer: Yes. Torture is prohibited both under international conventions and the laws of specific States.9. Are the regulations issued by the USA authorities in respect of persons considered to be engaged in terrorist activity and their application in practice in conformity with the provisions of international humanitarian law ratified by Poland?Answer: No. These regulations are often incompatible with international law and human rights.10. If possible, [the experts are asked] to make an assessment of compatibility of regulations concerning combating terrorism issued by the USA authorities after 11 September 2011 with the provisions of public international law relating

[Magda Hassan]

Human rights court turns down Polish govt request to keep CIA jail hearing closed

Published time: November 15, 2013 02:16Get short URL



An aerial view shows a watch tower of an airport in Szymany, close to Szczytno in northeastern Poland (Reuters / Kacper Pempel)








The public hearing is scheduled for December 3 in Strasbourg, France and will be the first time that allegations stating that the US intelligence agency used rogue "black sites" in Poland for its "extraordinary rendition" program are heard publicly. The US is accused of illegally detaining Al-Qaeda terror suspects and using torture to interrogate them in a forest in northern Poland.The Polish government's request to the European Court of Human Rights to prohibit the press and public from attending a hearing investigation on whether the US kept a CIA prison on Polish soil has been rejected.
"I can confirm that the hearing on 3 December will be a public hearing," a spokeswoman for the European Court of Human Rights told reporters on Thursday.
After the ruling was announced, the Polish Foreign Ministry told Reuters that the court had also, by its own volition, scheduled a separate closed-door hearing in the case for December 2.
Warsaw has denied that any such facility has ever existed and said that court communications should be kept classified to protect Poland's national security. The Helsinki Foundation for Human Rights, which has a location in Warsaw, has accused the Polish government of deceiving the public.
"We should have the right to review this case in public," Adam Bodnar, vice president of the group, told Reuters before Thursday's decision. "I do not see a reason for confidentiality of proceedings."
Former US President George W. Bush first acknowledged the secret prisons in 2006, more than a year after the first media reports on the matter. He ordered their closure and announced that many of the detainees would be transferred Guantanamo Bay, Cuba. American lawmakers have never provided the location of the "black sites."
The European Court of Human Rights intends to review the legal status of two detainees in particular, both of whom are currently in custody at Guantanamo Bay. Lawyers for Abu Zubaydah, born in Saudi Arabaia, and Abd al-Rahim al-Nashiri, a Saudi national, say that both men were flown to a dense Polish forest in 2002 on planes with CIA agents. They were then held for months without access to an attorney - a violation of due process - and tortured, the lawyers claim.
The Polish CIA "black site" is thought to be held near the village of Stare Kiejkuty, where CIA Director John Brennan reportedly visited during a trip to Europe in June. No acknowledgement of any such European detour has been made, although Stare Kiekjkuty has a long history of military bases dating back to Soviet occupation in the late 1960s.
There, The Economist has reported, al-Nashiri was forced to endure mock executions with a handgun and power drill while being threatening with sodomy and the rape of his family. Zubayadah was reportedly waterboarded at least 83 times.

Both men are also listed as parties to an investigation that the Polish government is conducting on itself, although that measure has been criticized for being intentionally delayed.
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