CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 16 janvier 2024

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text-indent:-17.05pt; text-align:justify } .sE5C1F6E3 { width:3.33pt; font:7pt 'Times New Roman'; display:inline-block } .s24870D7 { margin-top:12pt; margin-bottom:12pt; text-indent:17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s4F597665 { width:33.22pt; display:inline-block } .sEEEC397 { width:146.09pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } SECOND SECTION CASE OF AL-HAWSAWI v. LITHUANIA (Application no. 6383/17)   JUDGMENT   Art 1 • Jurisdiction of respondent State for alleged Convention violations of a terrorist suspect’s right during the United States (US) Central Intelligence Agency (CIA) extraordinary rendition operations • Responsibility engaged Art 3 (substantive and procedural) • Inhuman treatment during the applicant’s extraordinary rendition to CIA • Respondent State’s complicity in the CIA High-Value Detainee Programme enabling the US authorities to subject the applicant to inhuman treatment on its territory and to transfer him from that territory despite a real risk of further treatment contrary to Art 3 • Ineffective investigation into applicant’s allegations of serious Convention violations Art 5 • Unlawful and undisclosed detention of the applicant in a CIA secret detention facility on the respondent State’s territory • Respondent State enabled the applicant’s transfer by the US authorities from its territory, despite a real risk of being subjected to further undisclosed detention Art 8 • Interference with the applicant’s private and family life not “in accordance with the law” and without justification given the imposition of fundamentally unlawful, undisclosed detention Art 6 § 1 (criminal) • Art 2 (+ Art 1 P6) • Art 3 (+ Art 1 P6) • Extraordinary rendition to CIA despite real and foreseeable risk of flagrantly unfair trial before the US military commission in Guantánamo and of the death penalty being imposed Art 13 (+ Arts 3, 5 and 8) • Lack of effective remedies Art 46 • Execution of judgment • Detailed individual measures indicated by the Court     Prepared by the Registry. Does not bind the Court.   STRASBOURG 16 January 2024   FINAL   16/04/2024   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of al-Hawsawi v. Lithuania, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Arnfinn Bårdsen , President ,   Jovan Ilievski,   Egidijus Kūris,   Pauliine Koskelo,   Lorraine Schembri Orland,   Diana Sârcu,   Davor Derenčinović , judges , and Hasan Bakırcı, Section Registrar, Having regard to: the application (no.   6383/17) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Saudi Arabian national, Mr Mustafa Ahmed Adam al-Hawsawi (“the applicant”), on 19 December 2016; the decision to give notice of the application to the Lithuanian Government (“the Government”); the observations submitted by the respondent Government and the observations in reply submitted by the applicant; the comments submitted by the International Commission of Jurists and Amnesty International, who were granted leave to intervene by the President of the Section; Having deliberated in private on 5 December 2023, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns allegations of torture, ill-treatment and unacknowledged, incommunicado detention of Mr al-Hawsawi, one of the CIA’s so-called “high value detainees”, who was captured during the “war on terror” launched by President Bush in the aftermath of the 9/11 attacks and detained secretly in CIA clandestine detention facilities in various countries, allegedly including Lithuania, during the CIA’s extraordinary rendition operations in Europe in 2002-2006. The applicant alleged that as from 17 or 18 February or 6 October 2005, and until 25 March 2006 he had been detained in a CIA secret detention facility in Lithuania. The case raises issues under Article 2 of the Convention and Article 1 of Protocol No. 6, and Articles of 3, 5, 6 § 1, 8 and 13 of the Convention. THE FACTS 2.     The applicant, Mr Mustafa Ahmed Adam al-Hawsawi, is a Saudi Arabian national, who was born in 1968 and is currently detained in the Internment Facility at the US Guantánamo Bay Naval Base in Cuba. He was represented before the Court by Mr C. Esdaile, a legal advisor from a non-governmental organisation Redress with its seat in London, the United Kingdom. 3.     The Government were represented by Ms K. Bubnytė-Širmenė, their Agent at the European Court of Human Rights. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. PREliminary Considerations regarding the establishment of the facts 5.     It is to be noted in the present case involving, as several previous similar applications before the Court, complaints of secret detention, torture and ill-treatment to which the applicant was allegedly subjected during the extraordinary rendition operations by the United States authorities (see paragraphs 9-74 below) the Court is deprived of the possibility of obtaining any form of direct account of the events complained of from the applicant (see Al Nashiri v. Poland , no. 28761/11, § 397, 24 July 2014;     Husayn (Abu Zubaydah) v. Poland , no. 7511/13, § 397, 24 July 2014; Al Nashiri v.   Romania , no. 33234/12, §§ 16-17, 31 May 2018; and Abu Zubaydah v.   Lithuania , no. 46454/11, §§ 16-17, 31 May 2018). This has resulted from the secrecy of the CIA rendition operations and the classification regime imposed by the military commission in Guantánamo, before which the applicant is standing trial. The classification regime and the restrictions it has placed on the applicant’s contact with the outside world and his lawyers were described, inter alia , in a declaration of 28 January 2020, made by Mr Walter B. Ruiz, Esq., the lead counsel on the applicant’s defence team, representing him before the Guantánamo military commission (see paragraphs 56-57 below) 6.     As in the above mentioned cases, the facts of the present case as adduced by the applicant were to a considerable extent a reconstruction of dates and other elements relevant to his rendition, detention and treatment in the CIA custody, based on various publicly available sources of information and expert evidence collating various pieces of data from materials documenting the CIA rendition operations, which have gradually been declassified or made available since 2009. PRELIMINARY REMARKS on Evidence before the court 7.     Apart from documentary evidence supplied by the applicant and the Government, in order to establish the facts of the present case the Court has relied, first of all, on the facts that were judicially established – to the standard of proof beyond reasonable doubt – in Abu Zubaydah v. Lithuania, in particular its findings as to the existence of a CIA secret detention facility in Lithuania from 17 or 18 February 2005 to 25 March 2006 and the Lithuanian’s authorities knowledge of and complicity in the CIA rendition and secret detention operations on its territory (see Abu Zubaydah v.   Lithuania , cited above, §§ 18-19). The Court has also relied on expert and other evidence collected in Abu Zubaydah v. Lithuania , including the public verbatim record of fact-finding hearing devoted to taking oral evidence from experts – Senator Marty, Mr J.G.S. and Mr Crofton Black – in that case. It has further taken into account the extensive material relating to the CIA rendition and secret detention gathered in Abu Zubaydah v. Lithuania, Husayn (Abu Zubaydah) v. Poland, Al Nashiri v. Poland and Al Nashiri v.   Romania (all cited above). Background to the case Terrorist acts of which the applicant has been suspected 8.     The US authorities have considered that the applicant was a senior   al-Qaeda member, who supported the al-Qaeda terrorist network as a facilitator, financial manager and media committee member. This support is considered to have included the movement and funding of 9/11 hijackers to the USA to participate in a terrorist attack deemed to have been orchestrated by Khaled Sheikh Mohammed. The so-called “High-Value Detainee Programme” 9.     On an unspecified date following 11 September 2001 the CIA established a programme in the Counterterrorist Center (“CTC”) to detain and interrogate terrorists at sites abroad. In further documents the US authorities referred to it as “the CTC program” but, subsequently, it was also called “the High-Value Detainee Program” (“the HVD Programme”) 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”. For the purposes of the present case, it is referred to as “the HVD Programme”. 10.     A detailed account of the HVD Programme can be found in the Court’s judgments in Husyan (Abu Zubaydah) v. Poland (no. 7511/13, §§   47–69, 24 July 2014) ; Abu Zubaydah v. Lithuania (no. 46454/11, §§   20-53, 31   May 2018) and Al Nashiri v. Romania (no.   33234/12, §§ 22-61, 31   May 2018). The abridged description of the programme given below is based on that account. Setting up the CIA programme “to detain and interrogate terrorists at sites abroad” 11.     On 24 August 2009 the US 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. 12.     The report, which covers the period from September 2001 to mid ‑ October 2003, 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 CTC “to detain and interrogate terrorists at sites abroad”. 13.     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.” 14.     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 “HVDs”) were given the highest priority for capture, detention and interrogation. In some CIA documents they are also referred to as “high ‑ value targets” (“HVTs”). Enhanced Interrogation Techniques 15.     According to the 2004 CIA Report, in August 2002 the US   Department of Justice had provided the CIA with a legal opinion determining that 10 specific “Enhanced Interrogation Techniques” (“EITs”), to be applied to suspected terrorists, would not violate the prohibition of torture. 16.     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 the floor with his legs extended straight out in front of him with his arms 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.” 17.     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. 18.     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 Abu Zubaydah, 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. 19.     According to the 2009 DOJ Report, the CIA psychologists eventually proposed twelve EITs to be used in the interrogation of Mr   Abu   Zubaydah: attention grasp, walling, facial hold, facial or insult slap, cramped confinement, insects, wall-standing, stress positions, sleep deprivation, use of diapers, waterboarding – the name of the twelfth EIT was redacted. Expanding the use of the EITs beyond Abu Zubaydah’s interrogations 20.     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’”. Certain parts of that document are rendered in the 2004 CIA report. In particular, the report cites the following passages: “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’s 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. 21.     The application of the EITs to other terrorist suspects in CIA   custody began in November 2002. Conditions of detention at CIA “Black Sites” 22.     From the end of January 2003 to September 2006 the conditions of detention at CIA detention facilities abroad were governed by the Guidelines on Confinement Conditions for CIA Detainees (“the DCI Confinement Guidelines”), signed by the CIA Director, George Tenet, on 28 January 2003. This document, together with the Guidelines on Interrogations Conducted Pursuant to the Presidential Memorandum of Notification of 17 September 2001 (“the DCI Interrogation Guidelines”), signed by the CIA Director, George Tenet on 28 January 2003 (“the DCI Interrogation Guidelines), set out the first formal interrogation and confinement guidelines for the HVD Programme. The 2014 US Senate Committee Report relates that, in contrast to earlier proposals of late 2001, when the CIA expected that any detention facility would have to meet US prison standards, the guidelines set forth minimal standards and required only that the facility be sufficient to meet “basic health needs”. According to the report, that meant that even a facility comparable to the “Detention Site Cobalt” in which detainees were kept shackled in complete darkness and isolation, with a bucket for human waste, and without heat during the winter months, met the standard. 23.     According to the guidelines, at least the following “six standard conditions of confinement” were in use during that period: (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 illuminated the cell to about the same brightness as an office; (vi)     use of leg shackles in all aspects of detainee management and movement. 24.     The Memorandum for John A. Rizzo, Acting General Counsel at the CIA, entitled “Application of the Detainee Treatment Act to Conditions of Confinement at Central Intelligence Agency Facilities”, dated 31 August 2006, which was released on 24 August 2009 in a heavily redacted form, referred to conditions in which High-Value Detainees were held as follows: “... the CIA detainees are in constantly illuminated cells, substantially cut off from human contact, and under 24-hour-a-day surveillance. We also recognize that many of the detainees have been in the program for several years and thus that we cannot evaluate these conditions as if they have occurred only for a passing moment ... . Nevertheless, we recognize that the isolation experienced by the CIA detainees may impose a psychological toll. In some cases, solitary confinement may continue for years and may alter the detainee’s ability to interact with others. ...” The scale of the HVD Programme 25.     According to the 2014 US Senate Committee Report, the CIA held detainees from 2002 to 2008. Early 2003 was the most active period of the programme. Of the 119   detainees identified by the Senate Intelligence Committee as held by the CIA, fifty-three were brought into custody in 2003. Of thirty-nine detainees who, as found by the Committee, were subjected to the EITs, seventeen were subjected to such methods of interrogation between January 2003 and August 2003. During that time the EITs were primarily used at the Detention Site Cobalt and the Detention Site Blue. 26.     The report states that by the end of 2004 the overwhelming majority of CIA detainees – 113 of the 119 identified in the report – had already entered CIA custody. Most of the detainees remaining in custody were no longer undergoing active interrogations; rather, they were infrequently questioned and awaiting a “final disposition”. The CIA took custody of only six new detainees between 2005 and January 2009: four detainees in 2005, one in 2006, and one in 2007. Closure of the HVD Programme 27.     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 Guantánamo Bay. 28.     In January 2009 President Obama signed Executive Order 13491 that prohibited the CIA from holding detainees other than on a “short-term, transitory basis” and limited interrogation techniques to those included in the Army Field Manual. Military Commissions 29.     On 13 November 2001 President Bush issued the Military Order of November 13, 2001 on Detention, Treatment, and Trial of Certain Non ‑ Citizens in the War Against Terrorism (“the 2001 Military Commission Order”). It was published in the Federal Register on 16   November 2001. On 21 March 2002 D. Rumsfeld, the US Secretary of Defense at the relevant time, issued the Military Commission Order No. 1 (effective immediately) on Procedures for Trials by Military Commission of Certain Non-United States Citizens in the War Against Terrorism (“the 2002 Military Commission Order”). The order was promulgated on the same day. 30.     On 29 June 2006 the Supreme Court ruled in Hamdan v. Rumsfeld , 548 U.S. 557, 635 (2006), that the military commission “lack[ed] the power to proceed because its structure and procedures violate[d] both the UCMJ [Uniform Code of Military Justice] and the four Geneva Conventions signed in 1949”. It held, in particular: “4. The military commission at issue lacks the power to proceed because its structure and procedures violate both the UCMJ and the four Geneva Conventions signed in 1949. Pp. 49.72. (a) The commission’s procedures, set forth in Commission Order No. 1, provide, among other things, that an accused and his civilian counsel may be excluded from, and precluded from ever learning what evidence was presented during, any part of the proceeding the official who appointed the commission or the presiding officer decides to ‘close’. Grounds for closure include the protection of classified information, the physical safety of participants and witnesses, the protection of intelligence and law enforcement sources, methods, or activities, and ‘other national security interests.’ Appointed military defense counsel must be privy to these closed sessions, but may, at the presiding officer’s discretion, be forbidden to reveal to the client what took place therein. Another striking feature is that the rules governing Hamdan’s commission permit the admission of any evidence that, in the presiding officer’s opinion, would have probative value to a reasonable person. Moreover, the accused and his civilian counsel may be denied access to classified and other ‘protected information’, so long as the presiding officer concludes that the evidence is ‘probative’ and that its admission without the accused’s knowledge would not result in the denial of a full and fair trial.” 31.     In consequence, the Military Commission Order was replaced by the Military Commissions Act of 2006 (“the 2006 MCA”), an Act of Congress, passed by the US Senate and US House of Representatives, respectively, on 28 and 29 September 2006 and signed into law by President Bush on 17   October 2006. On 28 October 2009 President Obama signed into law the Military Commissions Act of 2009 (“the 2009 MCA”). 32.     On 27 April 2010 the Department of Defense released new rules governing the military commission proceedings. The rules include some improvements of the procedure but they still continue, as did the rules applicable in 2001-2009, to permit the introduction of coerced statements under certain circumstances if “use of such evidence would otherwise be consistent with the interests of justice”. 33.     A detailed description of the procedure before the military commission and publicly raised concerns regarding that procedure can be found in Al Nashiri v. Romania (cited above, §§ 71-77). The 2014 US Senate Committee Report 34.     In March 2009 the US Senate Intelligence Committee initiated a review of the CIA’s activities involved in the HVD Programme, in particular the secret detention at foreign “black sites” and the use of the EITs. That review originated in an investigation that had begun in 2007 and concerned the CIA’s destruction of videotapes documenting interrogations of Abu Zubaydah and Al Nashiri at Detention Site Green located in Thailand (see also paragraphs 51-52 below). The destruction was carried out in November 2005. 35.     The US Senate Committee on Intelligence, together with their staff, reviewed thousands of CIA cables describing the interrogations of Abu Zubaydah, Al Nashiri, the applicant and other CIA prisoners, and more that than six million pages of CIA material, including operational cables, intelligence reports, internal memoranda and emails, briefing materials, interview transcripts, contracts and other records. 36.     On 9 December 2014 the United States authorities released the Findings and Conclusions and, in a heavily redacted version, the Executive Summary of the US Senate Select Committee on Intelligence’s “Study of the Central Intelligence Agency’s Detention and Interrogation Program”. The full Committee Study – as stated therein, “the most comprehensive review ever conducted of the CIA Detention and Interrogation Program” – which is more than 6,700 pages long, remains classified. The declassified Executive Summary (“the 2014 US Senate Committee Report”) comprises 499 pages (for further details concerning the US Senate’s review of the CIA’s activities involved in the HVD Programme see Abu Zubaydah   v.   Lithuania , cited above, §§ 70-89). 37.     The Committee made twenty findings and conclusions. They can be summarised, in so far as relevant, as follows. 38.     Conclusion 2 states that “the CIA’s justification for the use of its enhanced interrogation techniques rested on inaccurate claims of their effectiveness”. 39.     Conclusion 3 states that “[t]he interrogations of the CIA were brutal and far worse than the CIA represented to policymakers and others”. It reads, in so far as relevant, as follows: “Beginning with the CIA’s first detainee, Abu Zubaydah, and continuing with numerous others, the CIA applied its enhanced interrogation techniques with significant repetition for days or weeks at a time. Interrogation techniques such as slaps and ‘wallings’ (slamming detainees against a wall) were used in combination, frequently concurrent with sleep deprivation and nudity. Records do not support CIA representations that the CIA initially used an ‘an open, nonthreatening approach’, or that interrogations began with the ‘least coercive technique possible’ and escalated to more coercive techniques only as necessary. The waterboarding technique was physically harmful, inducing convulsions and vomiting. Abu Zubaydah, for example, became ‘completely unresponsive, with bubbles rising through his open, full mouth’. Internal CIA records describe the waterboarding of Khaled Shaykh Mohammad as evolving into a ‘series of near drownings’. Sleep deprivation involved keeping detainees awake for up to 180 hours, usually standing or in stress positions, at times with their hands shackled above their heads. At least five detainees experienced disturbing hallucinations during prolonged sleep deprivation and, in at least two of those cases, the CIA nonetheless continued the sleep deprivation.” 40.     Conclusion 4 states that “the conditions of confinement for CIA detainees were harsher than the CIA had represented to the policymakers and others” and that “conditions at CIA detention sites were poor, and were especially bleak early in the programme”. As regards conditions at later stages, the following findings were made: “Even after the conditions of confinement improved with the construction of new detention facilities, detainees were held in total isolation except when being interrogated or debriefed by CIA personnel. Throughout the program, multiple CIA detainees who were subjected to the CIA’s enhanced interrogation techniques and extended isolation exhibited psychological and behavioral issues, including hallucinations, paranoia, insomnia, and attempts at self-harm and self-mutilation. Multiple psychologists identified the lack of human contact experienced by detainees as a cause of psychiatric problems.” 41.     Conclusion 8 states that “the CIA operation and management of the program complicated, and in some cases impeded, the national security missions of other Executive Branch Agencies”, including the Federal Bureau of Investigation (“the FBI”), the State Department and the Office of the Director of National Intelligence (“the ODNI”). In particular, the CIA withheld or restricted information relevant to these agencies’ missions and responsibilities, denied access to detainees, and provided inaccurate information on the HVD Programme to them. 42.     The findings under Conclusion 8 also state that, while the US authorities’ access to information about “black sites” was restricted or blocked, the local authorities in countries hosting CIA secret detention facilities were generally informed of their existence. In that respect, it is stated: “The CIA blocked State Department leadership from access to information crucial to foreign policy decision-making and diplomatic activities. The CIA did not inform two secretaries of state of locations of CIA detention facilities, despite the significant foreign policy implications related to the hosting of clandestine CIA detention sites and the fact that the political leaders of host countries were generally informed of their existence. Moreover, CIA officers told U.S. ambassadors not to discuss the CIA program with State Department officials, preventing the ambassadors from seeking guidance on the policy implications of establishing CIA detention facilities in the countries in which they served. In two countries, U.S. ambassadors were informed of plans to establish a CIA detention site in the countries where they were serving after the CIA had already entered into agreements with the countries to host the detention sites. In two other countries where negotiations on hosting new CIA detention facilities were taking place, the CIA told local government officials not to inform the U.S. ambassadors.” 43.     Conclusion 14 states that “CIA detainees were subjected to coercive interrogation techniques that had not been approved by the Department of Justice or had not been authorised by the CIA Headquarters”. It was confirmed that prior to mid-2004 the CIA routinely subjected detainees to nudity and dietary manipulation. The CIA also used abdominal slaps and cold water dousing on several detainees during that period. None of these techniques had been approved by the Department of Justice. At least seventeen detainees were subjected to the EITs without authorisation from CIA Headquarters. 44.     Conclusion 15 states that “the CIA did not conduct a comprehensive or accurate accounting of the number of individuals it detained, and held individuals who did not meet the legal standard for detention”. It was established that the CIA had never conducted a comprehensive audit or developed a complete and accurate list of the persons it had detained or subjected to the EITs. The CIA statements to the Committee and later to the public that the CIA detained fewer than 100 individuals, and that less than a third of those 100 detainees were subjected to the CIA’s EITs, were inaccurate. The Committee’s review of CIA records determined that the CIA detained at least 119 individuals, of whom at least thirty-nine were subjected to the CIA’s enhanced interrogation techniques. Of the 119   known detainees, at least twenty-six were wrongfully held. 45.     Conclusion 19 states that “the CIA’s Detention and Interrogation Program was inherently unsustainable and had effectively ended by 2006 due to unauthorized press disclosures, reduced cooperation from other nations, and legal and oversight concerns”. 46.     It was established that the CIA required secrecy and cooperation from other nations in order to operate clandestine detention facilities. According to the 2014 US Senate Committee Report, both had eroded significantly before President Bush publicly disclosed the programme on 6   September 2006. From the beginning of the programme, the CIA faced significant challenges in finding nations willing to host CIA clandestine detention sites. These challenges became increasingly difficult over time. With the exception of one country (whose name was redacted) the CIA was forced to relocate detainees out of every country in which it established a detention facility because of pressure from the host government or public revelations about the program. Moreover, lack of access to adequate medical care for detainees in countries hosting the CIA’s detention facilities caused recurring problems. The refusal of one host country to admit a severely ill detainee into a local hospital due to security concerns contributed to the closing of the CIA’s detention facility in that country. 47.     In early 2004, the anticipation of the US Supreme Court’s decision to grant certiorari in the case of Rasul v. Bush (where the Supreme Court held that foreign nationals detained in Guantánamo could petition federal courts for writs of habeas corpus to review the legality of their detention) prompted the CIA to move detainees out of a CIA detention facility at Guantánamo Bay. In mid-2004 the CIA temporarily suspended the use of the EITs after the CIA Inspector General recommended that the CIA seek an updated legal opinion from the Office of Legal Counsel. In late 2005 and in 2006, the Detainee Treatment Act and then the US Supreme Court decision in Hamdan v. Rumsfeld (548 U.S. 557,635 (2006)); see also paragraph 24 above) caused the CIA to again temporarily suspend the use of the EITs. 48.     According to the report, by 2006, press disclosures, the unwillingness of other countries to host existing or new detention sites, and legal and oversight concerns had largely ended the CIA’s ability to operate clandestine detention facilities. By March 2006 the program was operating in only one country. The CIA last used its EITs on 8 November 2007. The CIA did not hold any detainees after April 2008. 49.     Finally, Conclusion 20 states that “the CIA’s Detention and Interrogation Program damaged the United States’ standing in the world, and resulted in other significant monetary and non-monetary costs”. It was confirmed that, as the CIA records indicated, the HVD Programme costed well over USD 300 million in non-personnel costs. This included funding for the CIA to construct and