The Council of Europe today found the U.S. guilty of torture, illegal detention and administering unfair trials -- and made Poland pay the penalty.
That, in effect, is what happened at the council's judicial arm, the European Court of Human Rights. The U.S. wasn't on trial, of course, because it isn't subject to the court's jurisdiction. Poland, however, is. Call it the cost of being a loyal U.S. ally.
The case concerned two suspected terrorists the U.S. picked up -- Abd al-Rahim al-Nashiri in Dubai and Zayn al-Abidin Muhammad Husayn in Pakistan -- and took on a tour of so-called black rendition sites that ended with Guantanamo Bay, Cuba. Poland was among several European countries suspected of facilitating the air flights and providing detention locations at which the Central Intelligence Agency, alone, conducted the questioning.
The seven judges, who included a Pole, found that the Polish authorities did indeed help the CIA, should have known the men would be tortured and denied the right to a fair trial, and did nothing to prevent these things from happening.
The judges also found that the Polish courts and authorities had failed to properly investigate the case against their own government. Remedying the failures of national authorities to police themselves is a big part of what the court in Strasbourg, France, does.
The facts of the two cases were pretty clear. Some were acknowledged in an excised CIA document released by the U.S. government in 2009. The men were "high-value detainees," Al-Nashiri suspected of carrying out the assault on the USS Cole in Yemen in 2000 and Husayn of helping to plan the Sept. 11 attacks. Both were subjected to "enhanced interrogation techniques." The court ordered Poland to pay 100,000 euros ($135,000) in damages to each of the two, who remain imprisoned in Guantanamo.
The U.S. is unlikely ever to submit to the jurisdiction of such a supra-national court -- that's one reason it has declined to join the International Criminal Court in the Hague. Anyway, it wouldn't qualify for the Council of Europe unless the organization changed its criteria.
But it's an interesting thought experiment to imagine the U.S. as a member of the council. No doubt thousands of cases would be filed. Every American state would have to abolish capital punishment. The federal government would have to accept judgments against it for renditions and waterboarding of terrorist suspects. Guantanamo Bay would have to be closed. The Supreme Court would no longer have the last word on U.S. justice. That would rest with more liberal justices.
It might sound like a preposterous proposition. But consider this: Other big countries with legal systems far more at odds with the Europe mean, such as Russia and Turkey, are members.
There are 20,000 cases against Russia pending in the court, brought by Russian citizens. The court has ruled against Russia in thousands of cases, including one brought by Romanian speakers who argued that their language rights were abused by the Russian-backed separatist regime in Transdnistria, Moldova; another brought by a family who believed their son, a Russian army conscript, didn't commit suicide as the authorities found, but was bullied to death; and a series of cases regarding the torture, disappearance or execution of Chechens during the two wars Russia fought to prevent the Republic of Chechnya from seceding.
Most of us would say it's a good thing Russian citizens have this recourse.
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