Adam Bodnar: Poland is no longer denying existence of CIA prisons

The debate on CIA prisons in Poland has recently took a new twist. We discussed the issue with Adam Bodnar, a human rights lawyer and the vice-president of the board of the Helsinki Foundation for Human Rights in Warsaw. Bodnar, who is also an associate professor at the Centre for Human Rights, Faculty of Law, Warsaw University, claims that it is a major breakthrough that Polish prime minister no longer ignores Polish complicity, yet Bodnar doubts that charges in the state tribunal will be pressed.

Foto: Adam Bodnar

– Poland is so far the only country to conduct an investigation into secret CIA prisons. Do you think that it harms Poland’s credibility as an ally or that it shows that we are a democratic country that obeys the law?

From my point of view, it is very good that the investigation is being conducted in an effective way. I am  convinced that it is in Poland’s long term interest to do it. I hope that thanks to it Poland will be perceived as a democratic country treating its constitution in a serious way. Whenever I have talked about it in Western countries, I hear only admiration for Poland. For example, in the  European Parliament Committee on Civil Liberties, Justice and Home Affairs and when compared to Romania or Lithuania, which failed to investigate their cases properly. At the same time, there are always people who claim that it affects Polish credibility as an ally, harms our international position or simply is not in accordance with Polish national interest.

– Some people argue that the decisions concerning CIA “dark sites” were taken at the time when we considered ourselves to be at war with terrorism, so the usual rules and laws of  peacetime were suspended. Do you agree?

Absolutely I can’t agree. What’s more, if this theory had been acceptable, the United States would have simply suspended the American Constitution in this aspect, but the US did not do that. Even in this time of crisis, they treated prohibition of torture on U.S. territory as absolute. It needs to be stressed that when the US was faced with terrorism, it was looking precisely for solutions that would not breach American law. This is why all those prisons were organized outside of American territory. This is why we have the Guantanamo prison, which is out of the typical American jurisdiction.

So, it is legitimate to ask a question – if the Americans themselves didn’t agree to breach their constitution within their borders, why would they expect it from Poland? In my opinion, there was no Polish interest in helping the Americans in such a way. Of course, I presume that the international war with terrorism requires the very close cooperation of intelligence agencies, but never, ever, should this cooperation or help lead to breaking the law.

– Polish Prime Minister Donald Tusk has said that this issue must be explained. Yet, we have learned about charges against a former spy chief, Zbigniew Siemiatkowski, for his role in allowing the secret CIA site only from a media leak. There is no official confirmation. Is there not a certain lack of transparency?

First, what is important about the charges is that Mr. Zbigniew  Siemiątkowski himself confirmed them. So we have a situation that it is not just a media leak, but we have an information published by journalists, which has then confirmed by the person concerned. It is extremely important for the credibility of this news. So, it is a fact.

Secondly, it is important that the prime minister decided to comment on this issue at all. In this way – indirectly – he confirmed it as well. It is a completely new attitude of the members of government from what we have experienced so far. It is no longer denying, ignoring, etc. So we are at completely different stage now. Politicians don’t deny this issue anymore.

In this context, the declaration of the prime minister is important. Yet, at the same time he says that maybe prosecutor is behaving slightly unreasonably, takes on too much responsibility. So in the end we can read it like this: I am a democrat and can’t support torture, but maybe let’s better leave this subject … In my opinion, there is a certain ambiguity in the prime minister’s attitude. I would rather expect him to make a decision and stand by his decision: there should be a special parliamentary commission to explain the issue, and we should allow the prosecutor to do her job.

Summing it up: it is great that the prime minister commented on the issue, but I wouldn’t overestimate it. Now everything depends on the prosecutor – we will see if she drops the case  or bring the case to court.

– I can imagine the situation of the prosecutor is extremely difficult. Even more so as it is obvious that Zbigniew Siemiątkowski was not the only one who made decisions. How serious it could be potentially for other politicians?

From our information and research that we conducted at the Helsinki Foundation for Human Rights, it is clear that landing of CIA planes and depriving people of freedom on Polish territory required the cooperation of many officials. Just to note, the CIA planes were officially registered as private planes, but in Polish air space they were treated as governmental planes. So, it is not only about the Secret Service;  the Ministry of Defense and the army must have been involved. The minister coordinating the work of the Secret Service and the Border Guard, too.  It was an issue that required high-level coordination and also political consent. Otherwise, it would not be possible.

The obvious conclusion is that not only Zbigniew Siemiątkowski knew about it, but also Leszek Miller, who was the prime minister then. So we have a criminal case. Also, it is possible to imagine that there can be a request to bring some politicians to a state tribunal.

– How likely is that?

We have to remember that in Poland it is not possible to deal with the constitutional liability of politicians without the support of at least 115 members of parliament. They have to agree on opening a case before the Sejm Committee on Constitutional Responsibility, which prepares a preliminary motion to a state tribunal. After this, even this motion is subject to majority voting in the Sejm. Without the consent of 115 deputies, a procedure in a state tribunal cannot be even started. So the request prepared by the prosecutor must also have the political support of one-fourth of the parliament.

I don’t think that is possible now. Probably only Ruch Palikota (Palikot’s Movement) would vote for it.  Definitely not the Social Democrats. Their leader now is Leszek Miller, so he will not  try to make himself face a state tribunal … I wouldn’t expect Civic Platform (Platforma Obywatelska) of Prime Minister Tusk to support a request affecting a potential coalition partner. No support is possible from the right wing Law and Justice (Prawo I Sprawiedlivośċ, because when first leaks concerning CIA prisons appeared in the Washington Post they were at power and did nothing to explain the case.

So in theory a case in the state tribunal is possible, but politically – rather impossible.

We cannot also forget that there is also an international aspect to the potential responsibility of Poland for CIA prisons. Al-Nashiri has already submitted an application to the European Court of Human Rights. One may expect similar applications coming from other detainees –  for example, Abu-Zubaydah or Walid Bin-Attash.

– It is true that the issue of CIA secret prisons strangely united all parties – left and right. What are the possible charges? Crimes against humanity has been mentioned but it sounds slightly sensationalistic.

It all depends on the evidence. Comments about crimes against humanity come simply from the fact that torture is in this very chapter of the criminal code. So using torture against POWs qualifies as a crime against humanity … But I would avoid putting it so strongly. We can talk about overrunning authorization by allowing an extraterritorial base to be organized in Poland, and subsequent negligence in preventing abuses against detainees, and deprivation of their liberty. The question is if Polish politicians knew that torture was used during interrogations … Of course, depriving someone of freedom without a court sentence is also a violation of the criminal code and the Constitution. Yet, let me underline it again – how the charges will be qualified depends on the evidence, so I cannot know. It is our principle that when commenting on a case, the Helsinki Foundation for Human Rights relies only on public information.

A few weeks ago Professor Joseph Margulies, the legal representative of Abu Zubaydah visited Poland. Margulies said that he had met his client in Guantanamo before coming to Poland and updated him on the Polish case. Abu Zubaydah told him that he didn’t know how it would affect his fate, but he hoped that because of the investigation what happened to him would never happen to anybody anymore.  In your opinion, how significant is this case for Poland?

The case of Abu Zubaydah is very particular. He certainly was tortured, but he is not connected with terrorists. Right now, the U.S. authorities are not pushing for any charges against him and detaining him seems to be a huge mistake. So his case refutes the myth that all those who were imprisoned were terrorists and had to be tortured.

Personally, I think that torture must not be allowed no matter if somebody is suspected of terrorism or not and this is how it is stated in the Constitution. Aby Zubaydah shows that it can happen to anybody. Anyone can be arrested by mistake and tortured.

There were no charges pressed against him, yet it is not possible to release him from Guantanamo. The United States seems to be afraid of the possible negative consequences.

– I don’t quite understand. How is it that a person who now is not suspected of anything and has no charges cannot be released?

As I understand the thinking of the Americans, if he is set free now, after all his experiences, he could be used by the enemies of the United States as a sort of a symbol of unjust imprisonment. Legally, there is no justification in keeping him in Guantanamo.

– Coming back to Poland and the consequences for the country …

I think that the whole case is an important lesson. It shows that cooperation between intelligence agencies is possible, but it has to be in accordance with law. Also, it shows that many actions may be made public, and the persons who conducted them will be considered responsible for them. That is why it is worth dealing with – politicians will know that there are things they must not do, because in a democratic country like Poland,  methods that violate basic constitutional rights are not accepted. Poland right now is simply trying to treat our Constitution seriously – just in such a way as we were taught by American experts in the early 90s.

Patrycja Bukalska

Patrycja Bukalska

is editor of the V4Revue and editor of Polish weekly Tygodnik Powszechny; writes for „Green Town” („Zielone Miasto”) magazine.