Written by Winston P. Nagan   

As early as 2005 the Washington Post disclosed that United States was operating black sites in foreign countries for the holding and interrogation of high valued terror suspects. In 2006, President Bush publicly acknowledged that his administration had been establishing black sites abroad for terror suspects. Following these disclosures, the International Committee of the Red Cross issued a report, which included details of the treatment experienced by suspects detained in black sites centers. Among the most notorious of the detainees were such figures as Abu Zubaydah, Walid bin Attash and Khalid Shaikh Mohammed. From an early period, the Bush administration’s leading figures had determined that they needed to conduct a war on terror in which the gloves of technical legality were to be removed. Secretary Donald Rumsfeld talked the language of enhanced interrogation techniques. This raised a technical question of what precisely the line was that distinguished enhanced and robust interrogation techniques from the technical line stipulated in the national and international law that prohibits the use of torture and other forms of cruel, unusual, and degrading treatment or punishment. Among the efforts to redefine this line was a memo that emerged from the President’s Office of Legal Counsel, which suggested an extremely narrow definition of actionable torture. The memo confined torture to the prospect of organ loss or the loss of life. It is unclear whether the President’s lawyers believed this to be an objective statement of the law as it actually is, or whether they were providing a form of legal cover for operatives in the field who could rely on the semi-official definition of torture in the event that there were subsequent investigations and possible prosecutions.
A number of black sites were identified in the Middle East, including Afghanistan, Morocco, and Egypt. At least fourteen European states were also implicated in the CIA rendition program. These states included Britain, Germany, Isle of Man, Italy, Sweden, Bosnia, Republic of Macedonia, Turkey, Spain, Cyprus, Lithuania, Ireland, Greece, Portugal, Romania, and Poland. However, it is alleged that black sites existed only in Poland, Romania and Lithuania. Initially, Bush administration officials insisted that the rendering of detainees to black sites was perfectly legal and that there was an assurance that the recipient states would not engage in the practice of torture against the detainees. However, black sites information continued to be leak suggesting that indeed detainees were being tortured in these sites. The global glare of suspicion began to focus on the CIA and the involvement of the CIA in robust interrogations tantamount to torture and therefore raising a prima facie case of criminal wrongdoing. In 2007, President Bush operating in panic mode issued an executive order banning torture of captives by intelligence officials. In the meanwhile, Director of Central Intelligence, General Michael Hayden, categorically denied CIA wrongdoing. He stated that the CIA did not use waterboarding, stress positions, hypothermia, and dogs to interrogate suspects. As the black sites generated notoriety at home and abroad, detainees were removed to the Guantanamo facility, on leased territory from the Government of Cuba. The evidence now began to pile up overwhelmingly about the black sites process and its specific approval by Presidential Order of George W. Bush. The evidence gained credibility as major human rights groups, such as Human Rights Watch and Amnesty International, began to publish interviews from detainees about their treatment in the black sites. The overwhelming sense of what took place is that the detainees were tortured and that the CIA was an active participator in the torture process. The notoriety of the program generated investigations and inquiries in many of the affected states and especially in the institutions of the Council of Europe (the Parliamentary Assembly) and the European Union. The European Parliament called on member countries to conduct internal investigations into the black sites problems in their territories. In the meanwhile, the CIA, while it was denying the use of torture, cabled its officers in the field to destroy the evidence of torture used in the black sites. No action has being taken yet on the question of the lawfulness of the destruction of the videotapes and other evidence of torture. Jose Rodriguez, former head of the CIA’s clandestine service, ordered the destruction of ninety-two tapes of interrogation sessions in which terrorism suspects were subjected to waterboarding and other torture methods. Rodriguez initially claimed that the destruction of the tapes was to protect CIA operatives and their families from a possible Al Qaeda retaliation. It is generally conceded that the real motive of the destruction of the tapes was the fear of criminal prosecutions. In his recent book, Rodriguez still denies that waterboarding, which he concedes was done to detainees, was a really torture. This view is repudiated by the official US governmental position.
Into this embarrassing episode for US foreign policy, and its image as a defender of human rights values, comes the continuing investigation in Poland. Poland was concededly a place with a CIA black site. The black site and the conduct of activities there were violations of the Polish Constitution, Polish Law, as well as the European Convention on Human Rights, leading international human rights treaty to which Poland is bound. Additionally, the existence of these sites in Poland had generated an unprecedented level of shock in the body politic. Poland has engaged in a long and bloody struggle for a political order committed to democracy, the rule of law, and basic human rights; This is a struggle in which the occupation by the Nazis reached unprecedented heights of cruelty and mass murder. This was followed by the repressive rule imposed on Poland by Stalin’s Russia. A widespread sense of betrayal is felt with regard to some of its political leaders that allowed the black site activity, as well as an intense feeling of disappointment that the US should use its considerable power and influence to inflict its black sites on the Polish leadership and indeed the Polish nation. In particular, the Poles indentify the US as a powerful ally in its struggle for freedom and democracy. The pressures of the Bush administration to effectually require practices that are violations of its basic constitutional values and treaty commitments has left a lingering chasm in understanding US foreign policy and Polish vital national interests.
Poland’s own investigations were triggered by request for information initially about flight logs and border checks and then generally it became apparent that while the CIA may have destroyed evidence of its interrogation practices in the Polish black sites, the Polish intelligence community may keep detailed records of these practices for their own administrative reasons. At least it is the information provided by investigative journalists involved in the case, since whole investigation is kept top secret. These records could result in the prosecution of Polish intelligence officials and possibly politicians higher up on the political pecking order. What is even more important is that this evidence, which his slowly being disclosed, is also evidence that would significantly implicate CIA agents and leaders in criminal wrongdoing in violation of both Polish Law and the law if the United States. There are obviously difficulties that continue to slow down the prosecutorial investigators but, since the process is now under way, there is good reason to believe that the evidence that will emerge, as a result of the meticulous record keeping of the Polish intelligence community, will be evidence that could be used against the CIA should the political will be there to follow the law impartially. A possible solution in the US would be to have a senatorial hearing in which CIA agents and operatives are invited to tell the truth fully in return for an amnesty from any future prosecutions. One thing is clear, the destruction of the tapes of the CIA does not mean that all the evidence of criminal wrongdoing has being lost. The Polish records indeed are there, and there may be others. The CIA is not off the hook yet.

Adam Bodnar, Vice President, Helsinki Foundation for Human Rights, Warsaw, Poland
Winston P. Nagan, Institute for Human Rights, Peace and Development, University of Florida