European court faults Lithuania over CIA black site tied to USS Cole suspect

(CN) — More than two decades after the CIA secretly moved a Saudi terrorism suspect through a chain of black sites, one stop on that journey came back to haunt Lithuania on Tuesday.

The European Court of Human Rights ruled that Lithuania violated the rights of Abd al-Rahim Hussein al-Nashiri, a Saudi national of Yemeni descent who remains at Guantánamo Bay. He said the CIA secretly flew him to Lithuania in October 2005, held him for more than five months in a covert prison and transferred him onward despite the risk of an unfair military trial and a possible death sentence.

Judges found al-Nashiri was transferred from Romania to Lithuania in October 2005, detained at the CIA facility known as Detention Site Violet until March 2006 and then flown to Afghanistan. Lithuania argued there was no direct proof he had ever been on its territory, but the court said the secrecy of the CIA rendition program made conventional records impossible and found that flight data, CIA cables, earlier judgments and expert evidence established his route.

The judges also found Lithuania responsible for allowing al-Nashiri to be held in complete isolation without contact with his family and for sending him on despite a foreseeable risk that evidence extracted through torture could be used against him before the Guantánamo military commissions.

Stressing its longstanding position, the court wrote, “No legal system based upon the rule of law can countenance the admission of evidence which has been obtained by such a barbaric practice as torture.” It added that “It would, therefore, be a flagrant denial of justice if such evidence were admitted in a criminal trial.”

After the Sept. 11, 2001, terrorist attacks, the Bush administration gave the CIA broad authority to hunt terrorism suspects around the world. The agency built a secret network of overseas prisons for detainees it considered especially valuable for intelligence, quietly working with foreign governments to move prisoners between black sites before many eventually ended up at the U.S. military prison at Guantánamo Bay.

Al-Nashiri became one of the program’s highest-profile prisoners. U.S. authorities accuse him of helping orchestrate the 1998 East Africa embassy bombings, the 2000 USS Cole attack in Yemen that killed 17 American sailors and the 2002 bombing of the French oil tanker MV Limburg.

Captured in Dubai in October 2002, he was first held in the United Arab Emirates before being turned over to the CIA. Over the next four years, he passed through black sites in Afghanistan, Thailand, Poland, Morocco, Guantánamo, Romania and Lithuania before returning to Afghanistan and ultimately entering U.S. military custody in 2006.

Court records describe brutal abuse before al-Nashiri reached Lithuania, including waterboarding, confinement in small boxes, being suspended naked from the ceiling, mock execution with a handgun and threats involving a power drill. The judges found no evidence those same interrogation methods were used in Lithuania, but concluded he remained trapped in the CIA’s system of secret detention, solitary confinement, shackling and total isolation.

Sam Raphael, professor in international relations and human rights at the University of Westminster and an expert on the CIA rendition program, said the judgment is a reminder of Lithuania’s role in the broader “war on terror” abuses.

“Disappeared for years on end, held outside of any legal framework and subjected to systematic torture, the CIA prisoners held in black sites between 2002-2006 were victims of the most heinous crimes by the world’s most powerful intelligence agency.”

Raphael, whose evidence was cited in the case, said al-Nashiri was held in eight black sites and subjected to drowning, confinement in tiny boxes, torture with a power drill and mock execution. The ruling, he said, may be bittersweet because al-Nashiri remains at Guantánamo more than two decades later, but it underlines the “inviolability of fundamental human rights” even when governments invoke national security.

Lisa Hajjar, professor, department chair of sociology and an expert on law and human rights at UC Santa Barbara, said the court’s discussion of the Guantánamo military commissions may ultimately prove to be the judgment’s most significant contribution. She said it also pulls together years of earlier European rulings while reinforcing what she called “the indisputable evidence of U.S. torture and Lithuania’s complicity.”

“The lawlessness of this institution is linked to Lithuania’s culpability in allowing al-Nashiri’s transfer out of the country,” she said of the military commissions created under the Bush administration, where al-Nashiri still faces trial. Because he remains “on trial” while U.S. officials continue to deny or minimize the torture he endured, Hajjar argued the judgment remains important for future accountability and should serve as a warning to governments considering cooperation with states that rely on torture in the name of security.

The court awarded al-Nashiri 30,000 euros (about $34,300) in damages and 10,000 euros (about $11,400) in legal costs. It dismissed his complaints over torture, unlawful detention and the lack of an effective remedy because those issues had already been examined by the U.N. Working Group on Arbitrary Detention.

Lawyers for al-Nashiri and the Lithuanian government did not respond to requests for comment.

The judgment is not yet final. Either side has three months to ask the case to be referred to the Grand Chamber. If no referral is accepted, Lithuania must pay the damages and seek assurances from the United States that al-Nashiri, still held at Guantánamo more than two decades after entering CIA custody, will not face the death penalty.

Courthouse News reporter Eunseo Hong is based in the Netherlands.