CEDH · CASELAW;COMMUNICATEDCASES;ENG — 10 juillet 2012

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font-style:italic; letter-spacing:-0.1pt } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } FOURTH SECTION Application no. 28761/11 Abd Al Rahim Hussayn Muhammad AL NASHIRI against Poland lodged on 6 May 2011 STATEMENT OF FACTS   1.     The applicant, Mr Abd Al Rahim Hussayn Muhammad Al Nashiri, is a Saudi Arabian national of Yemeni descent, who was born in 1965. He is currently detained in the Internment Facility at the US Guantanamo Bay Naval Base in Cuba. The applicant is represented before the Court by Mr   J.A. Goldston, attorney, member of the New York Bar and Executive Director of the Open Society Justice Initiative (“the OSJI”), Mr R. Skilbeck, barrister, member of the England and Wales Bar and Litigation Director of the OSJI, Ms A. Singh, attorney, member of the New York Bar and Senior Legal Officer at the OSJI, and also by Ms N. Hollander, attorney, member of the New Mexico Bar. A.     Background 1.     USS Cole bombing in 2000 2.     On 12 October 2000 a suicide terrorist attack on the United States Navy destroyer USS Cole took place in Aden, Yemen when the ship stopped in the Aden harbour for refuelling. It was attacked by a small bomb-laden boat. The explosion opened a 40 foot hole in the warship, killing 17   American sailors and injuring 40 personnel. The applicant, considered to have been one of the most senior figures in al’Qaeda, has been the prime suspect in the 2000 bombing. He has been suspected of masterminding and orchestrating the attack (see also paragraph   55 below). 2.     MV Limburg bombing 3.     On 6 October 2002 a French oil tanker MV Limburg , while it was in the Gulf of Aden some miles offshore, was rammed by a small explosives-laden boat which detonated. The tanker caught fire and approximately 90,000 barrels (14,000 m 3 ) of oil leaked into the Gulf of Aden. One crew member was killed and twelve others injured. The style of the attack resembled the suicide USS Cole bombing described above. The applicant has been suspected of playing a role in the attack (see also paragraph 55 below) 3.     The so-called “High Value Detainees Programme” 4.     After 11 September 2001 the US Government began operating a special interrogation and detention programme designated for suspected terrorists. On 17   September 2001 President Bush signed a classified Presidential Finding granting the Central Intelligence Agency (“the CIA”) extended competences relating to its covert actions, in particular authority to detain terrorist suspects and to set up secret detention facilities outside the United States, in cooperation with the governments of the countries concerned. 5.     On an unspecified later date the CIA established a programme in the Counter-terrorist Center to detain and interrogate terrorists at sites abroad. In further documents the American authorities referred to it as “the CTC program” (see also paragraphs 6-9 below) but, subsequently, it was also called “the High-Value Detainees Program” (“the HVD Programme”) (see also paragraph 8 below), or the Rendition Detention Interrogation Program (“the RDI Program”). In the Council of Europe’s documents it is also described as “the CIA secret detention programme” or “the extraordinary rendition programme” (see also paragraphs 66-82 below). For the purposes of the present case, it is referred to as “the HVD Programme”. 6.     On 24 August 2009 the American 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; on the whole more than one-third of the 109-page document was blackened out. 7.     The report starts from 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 Counterterrorist Centre (“CTC”) to detain and interrogate terrorists at sites abroad. It continues as follows: “He also informed OIG that he had just learned of and dispatched a team to investigate [REDACTED] In January 2003, the DDO informed OIG that he had received allegations that Agency personnel had used unauthorised interrogation techniques with a detainee, Abd Al-Rahim Al-Nashiri, at another foreign site, and requested that OIG investigate. Separately, OIG received information that some employees were concerned that certain covert Agency activities at an overseas detention and interrogation site might involve violations of human rights. In January 2003, OIG initiated a review of the Agency counter-terrorism detention and interrogation activities [REDACTED] and the incident with Al-Nashiri.” 8.     The background of that 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 U.S. policy statements condemning torture and advocating the humane treatment of political prisoners and detainees in the international community.” 9.     As 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 “HVD”) were given the highest priority for capture, detention, and interrogation. In some CIA documents they are also referred to as “High Value Targets” (“HVT”). The applicant fell into this category. 10.     In paragraph 6 of the report, in relation to the “legal parameters and constraints for interrogations” of suspected terrorists, it is stated that, following extensive consultations with the US Department of Justice and the National Security Council legal and policy staff, it was considered that “in most instances relevant to counter-terrorism detention and interrogation activities [redacted] the criminal prohibition against torture, ... is the controlling legal constraint on interrogations of detainees outside the United States”. It was further mentioned that in August 2002 the US Department of Justice had provided the CIA with a legal opinion determining that 10   specific “Enhanced Interrogation Techniques” (“the EITs”), as applied to suspected terrorists, would not violate the prohibition of torture. This document provided “the foundation for the policy and administrative decisions that guided the CTC Program”. 11.     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 file floor with his legs extended straight out in front of him with his anus 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.” 12.     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 (i.e. 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. 13.     The CIA agents were authorised to use 4 standard interrogation techniques (sleep deprivation not exceeding 72 hours; continual use of light or darkness in a cell, loud music and white noise (background hum)) as indentified in November 2002 without the Headquarters’ prior approval. The use of the EITs required a prior approval (paragraph 89 of the 2004 CIA Report). 14.     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 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. 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. 15.     The CIA 2004 Report further 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”. The document is still classified as top secret. Certain parts are, however, rendered in the 2004 CIA report. For instance, the report states the following: “...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 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. 16.     As established in paragraph 51 of the report, in November 2002 CTC initiated training courses for CIA agents involved in interrogations. In January 2003 formal “Guidelines on Confinement Conditions for CIA Detainees” and “Guidelines on Interrogations Conducted Pursuant to [REDACTED]” were approved (paragraph 50). 17.     The application of the EITs to other terrorist suspects in CIA   custody, including the applicant in the present case, began in November 2002. 18.     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 Guantanamo Bay. 4.     Role of Jeppesen Company 19.     Jeppesen Dataplan is a subsidiary of Boeing based in San Jose, California. According to the company’s website, it is an international flight operations service provider that coordinates everything from landing fees to hotel reservations for commercial and military clients. 20.     In the light of reports on rendition flights (see paragraphs 99-102 below), a unit of the company Jeppesen International Trip Planning Service (JITPS) provided logistical support to the CIA for the renditions of persons suspected of terrorism. 21.     In 2007, the American Civil Liberties Union (“the ACLU”) filed a federal lawsuit against Jeppesen Dataplan, Inc. on behalf of three extraordinary rendition victims with the District Court for the Northern District of California. Later, two other persons joined the lawsuit as plaintiffs. The suit charged that Jeppesen knowingly participated in these renditions by providing critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly disappear these five men to torture, detention and interrogation. In February 2008 the District Court dismissed the case on the basis of “state secret privilege”. In April 2009 the 9 th Circuit Court of Appeals reversed the first-instance decision and remitted the case. In September 2010, on the US Government’s appeal, an 11-judge panel of the 9 th Circuit Court of Appeals reversed the decision of April 2009. In May 2011 the US   Supreme Court refused the ACLU’s request to hear the lawsuit. B.     The circumstances of the case 22.     The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     The applicant’s capture, transfer to the CIA’s custody and his subsequent detention in Afghanistan and Thailand 23.     At the end of October 2002 the applicant was captured in Dubai, in the United Arab Emirates. 24.     By November 2002, he was transferred to the custody of the CIA. This fact is mentioned in paragraph 7 of the 2004 CIA Report: “7.     [REDACTED] By November 2002, the Agency had Abu Zubaydah and another high-value detainee, Abd Al-Rahim Al Nashiri, in custody [REDACTED] and the Office of Medical Services (OMS) provided medical care to detainees.” 25.     Subsequently, US agents took him to a secret CIA prison in Afghanistan known as the “Salt Pit”. During his detention, the interrogators subjected him to prolonged stress standing positions, during which his wrists were shackled to a bar or hook in the ceiling above the head for at least two days. 26.     After a brief stay at the “Salt Pit”, US agents took him to yet another secret CIA prison in Bangkok, Thailand, where he remained until 4   December 2002. The CIA subjected the applicant to the EITs (see also paragraphs 9-16 above) from November 2002 until 4 December 2002. In particular, during two separate interrogation sessions they subjected him to the so-called “waterboarding”. 2.     Transfer to Poland and detention in the so-called “black site” in Stare Kiejkuty 27.     The applicant submits that he was “rendered” to Poland under the HVD Programme on or about 5 December 2002. On 4 December 2002, the CIA transported the applicant on a chartered flight with tail number N63MU from Bangkok to a secret CIA detention site in Poland. The flight flew from Bangkok via Dubai and landed in Szymany, Poland, on 5 December 2002 at 14h56. The flight was disguised under multiple layers of secrecy characterising flights that the CIA chartered to transport persons under the HVD programme (see also paragraphs 81-83 and 99-102 below). 28.     The fact that the applicant was transferred to a secret detention site on 5 December 2002 and then tortured is confirmed in paragraph 224 of the of the 2004 CIA Report, which states: “224.     With respect to Al-Nashiri [REDACTED] reported two waterboard sessions in November 2002, after which psychologist/interrogators determined that Al-Nashiri was compliant. However, after being moved [REDACTED] Al-Nashiri was thought to be withholding information. Al-Nashiri subsequently received additional EITs, but not the waterboard. The Agency then determined Al-Nashiri to be ‘compliant’. Because of the litany of techniques used by different interrogators over a relatively short period of time, it is difficult to identify exactly why Al-Nashiri became more willing to provide information. However, following the use of EITs, he provided information about his most current operational planning and [REDACTED] as opposed to the historical information he provided before the use of EITs.” 29.     The applicant, relying on official documents disclosed by the Polish Border Guard to the Helsinki Foundation for Human Rights, states that those documents confirm that Polish officials cleared flight N63MU for arrival at Szymany airport on 5 December 2002. In this connection, the applicant produced a letter from the Border Guard Office to the Helsinki Foundation dated 23 July 2010. The letter, in so far as relevant, reads as follows: “In relation to the letter ref/1614/2010/АВЛР and dated July 5, 2010, the letter ref 1345/2010/AB/IP and dated May 31, 2010, as well as the letter of the [Border] Guard ref ZG-2582/WliBD/lO and dated June 16, 2010 concerning the making available of information by the [Border] Guard detailing the borders clearance of the airplanes with registration numbers N63MU, N379P, N313P and N8213G at Szymany аirport in 2002 and 2005 after having obtained a statement from the Public Prosecutor’s Office assenting to the making available of the clearance information, I kindly inform that on the basis of archival documentation the [Border] Guard can confirm the clearance of the following аirplanes for takeoff and landing: N63MU, December 5, 2002. Arrival/ passengers:8, crew:4; Departure/ passengers: 0, crew: 4 N379P, February 8, 2003 Arrival/ passengers: 7, crew: 4; Departure/ passengers: 4, crew: 4 N379P, March 7, 2003 Arrival/ passengers: 2, crew: 2; Departure/ passengers:0, crew: 2 N379P, March 25, 2003 Arrival/ passengers: 1, crew:2; Departure/ passengers: 0, crew:2 N379P, June 6,2003 Arrival/passengers: 1, crew: 2; Departure/ passengers:0, crew:2 N379P, July 30, 2003 Arrival/passengers: 1, crew: 3; Departure/passengers: 0, crew: 3 N313P, September 22, 2003 Arrival/ passengers: 0, crew: 7; Departure/ passengers: 5, crew: 7 We do not possess information that can confirm the border clearance of the airplane with registration number N8213G. ...” 30.     The applicant further refers to a 2007 Council of Europe report (“the 2007 Marty report” – see also paragraphs 73-82 below), which identifies N63MU as a “rendition plane” that arrived in Szymany from Dubai at 14h56 on 5   December 2002 31.     The applicant was subjected to torture and inhuman and degrading treatment while he was held incommunicado in a secret prison on Polish territory. The 2004 CIA Report, in paragraphs 90-98, refers to the following events that took place in December 2002 and January 2003 when he was, as he alleges, held in Poland: “Specific Unauthorized or Undocumented Techniques 90.     [REDACTED] This Review heard allegations of the use of unauthorized techniques [REDACTED]. The most significant, the handgun and power drill incident, discussed below, is the subject of a separate OIG investigation. In addition, individuals interviewed during the Review identified other techniques that caused concern because DoJ had not specifically approved them. These included the making of threats, blowing cigar smoke, employing certain stress positions, the use of a stiff brush on a detainee, and stepping on a detainee’s ankle shackles. For all of the instances, the allegations were disputed or too ambiguous to reach any authoritative determination regarding the facts. Thus, although these allegations are illustrative of the nature of the concerns held by individuals associated with the CTC Program and the need for clear guidance, they did not warrant separate investigations or administrative action. Handgun and Power Drill 91.     [REDACTED] interrogation team members, whose purpose was to interrogate-Al-Nashiri and debrief Abu Zubaydah initially staffed [REDACTED]. The interrogation team continued EITs on Al-Nashiri for two weeks in December 2002 [REDACTED] they assessed him to be ‘compliant’. Subsequently, CTE officers at Headquarters [REDACTED] sent a [REDACTED] senior operations officer (the debriefer) [REDACTED] to debrief and assess Al-Nashiri. 92.     [REDACTED] The debriefer assessed AI-Nashiri as withholding information, at which point [REDACTED] reinstated [REDACTED] hooding, and handcuffing. Sometime between 28 December 2002 and 1 January 2003, the debriefer used an unloaded semi-automatic handgun as a prop to frighten Al-Nashiri into disclosing information. After discussing this plan with [REDACTED] the debriefer entered the cell where Al-Nashiri sat shackled and racked [racking is a mechanical procedure used with firearms to chamber a bullet or simulate a bullet being chambered] the handgun once or twice close to Al-Nashiri’s head. On what was probably the same day debriefer used a power drill to frighten Al-Nashiri. [REDACTED] consent, the debriefer entered the detainee’s cell and revved the drill while the detainee stood naked and hooded. The debriefer did not touch Al-Nashiri with the power drill. 93.     The [REDACTED] and debriefer did not request authorization or report the use of these unauthorized techniques to Headquarters. However, in January 2003, newly arrived TDY officers [REDACTED] who had learned of these incidents reported them to Headquarters. OIG investigated and referred its findings to the Criminal Division of DoJ. On 11 September 2003, DoJ declined to prosecute and turned these matters over to CIA for disposition. These incidents are the subject of a separate OIG Report of Investigation. Threats 94.     [REDACTED] During another incident [REDACTED} the same Headquarters debriefer, according to a [REDACTED] who was present, threatened Al-Nashiri by saying that if he did not talk, ‘We could get your mother here’ and, ‘We can bring your family in here’. The [REDACTED] debriefer reportedly wanted Al-Nashiri to infer, for psychological reasons, that the debriefer might be [REDACTED] intelligence officer based on his Arabic dialect and that Al-Nashiri was in [REDACTED] custody because it was widely believed in Middle East circles that [REDACTED] interrogation technique involves sexually abusing female relatives in front of the detainee. The debriefer denied threatening AI-Nashiri through his family. The debriefer also said he did not explain who he was or where he was from when talking with Al-Nashiri. The debriefer said he never said he was [REDACTED] intelligence officer but let AI-Nashiri draw his own conclusions. ... Smoke 96.     [REDACTED] An Agency [REDACTED] interrogator admitted that, in December 2002, he and another [REDACTED] smoked cigars and blew smoke in Al ‑ Nashiri’s face during an interrogation. The interrogator claimed they did this to ‘cover the stench’ in the room and to help keep the interrogators alert late at night. This interrogator said he would not do this again based on ‘perceived criticism’. Another Agency interrogator admitted that he also smoked cigars during two sessions with Al-Nashiri to mask the stench in the room. He claimed he did not deliberately force smoke into Al-Nashiri’s face. Stress Positions 97.     [REDACTED] OIG received reports that interrogation team members employed potentially injurious stress positions on Al-Nashiri. Al-Nashiri was required to kneel on the floor and lean back. On at least one occasion, an Agency officer reportedly pushed AI-Nashiri backward while he was in this stress position. On another occasion [REDACTED] said he had to intercede after [REDACTED] expressed concern that Al-Nashiri’s arms might be dislocated from his shoulders. [REDACTED] explained that, at the time, the interrogators were attempting to put Al-Nashiri in a standing stress position. Al-Nashiri was reportedly lifted off the floor by his arms while his arms were bound behind his back with a belt. Stiff Brush and Shackles 98     [REDACTED] interrogator reported that he witnessed other techniques used on Al-Nashiri that the interrogator knew were not specifically approved by DoJ. These included the use of a stiff brush that was intended to induce pain on Al-Nashiri and standing on Al-Nashiri’s shackles, which resulted in cuts and bruises. When questioned, an interrogator who was at [REDACTED] acknowledged that they used a stiff brush to bathe Al-Nashiri. He described the brush as the kind of brush one uses in a bath to remove stubborn dirt. A CTC manager who had heard of the incident attributed the abrasions on Al-Nashiri’s ankles to an Agency officer accidentally stepping on Al-Nashiri’s shackles while repositioning him into a stress position.” 32.     The use of the EITS on the applicant and his ill-treatment, in particular threats and subjection to prolonged stress positions at the relevant time (i.e. in his “third place of detention” which was allegedly Poland) is also described in the International Committee for the Red Cross (“the ICRC”) Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody of February 2007 (“the 2007 ICRC Report”), based on interviews with the applicant and 13 other high-value detainees after they were transferred to Guantanamo Bay (for a detailed description see paragraphs 91-93 below). 3.     Transfer to the US Gunatanamo Bay Naval Base 33.     On or about 6 June 2003, Polish authorities assisted the CIA in secretly transferring the applicant from Poland to Rabat, Morocco, on a rendition plane flight N379P. There was apparently no attempt by the Polish Government to seek diplomatic assurances from the United States to avert the risk of his being subjected to further torture, incommunicado detention, an unfair trial, or the death penalty when in the US custody. 34.     The applicant submits that official documents released by the Polish Border Guard to the Helsinki Foundation for Human Rights confirm that flight N379P was cleared for departure from Szymany airport on 6 June 2003 (see paragraph 29 above). In this connection, he also cites the 2007 Marty Report, which identifies flight N379P as a “rendition plane” that flew from Kabul and landed in Szymany airport the previous day, i.e., on 5   June 2003 (see paragraphs 74-82 below). 35.     He further adds that the flight data procured by the 2007 Marty Report was subsequently analysed by the Center for Human Rights and Global Justice (“the CHRGJ”), which, in its report released on 9 March 2010 (“the CHRGJ Report”), confirmed that N379P’s movements over 3 ‑ 7   June 2003 “conform to the most typical attributes of a CIA rendition circuit”. The data collected and examined in the CHRGJ Report shows that a Gulfstream V aircraft, registered with the US Federal Aviation Administration as N379P, embarked from Dulles Airport, Washington D.C. on Tuesday June 3, at 23   h33m GMT and undertook a four-day flight circuit, during which it landed in and departed from six different foreign countries including Germany, Uzbekistan, Afghanistan, Poland, Morocco and Portugal. The aircraft returned from Portugal back to Dulles Αirport on 7 June 2003 (for further details (see also paragraphs 99-102 below). 36.     The applicant, relying on the CHRGJ flight data analysis, states that it confirms that the Polish Government granted licences and overflight permissions to facilitate the CIA rendition flight N379P and that the Polish Air Navigation Services Agency (PANSA) ( Polska Agencja Żeglugi Powietrznej ) officials collaborated with Jeppesen (and, by extension, with Jeppesen’s client, the CIA) by accepting the task of navigating this disguised flight into Szymany. Indeeed, they knowingly issued a permit for Warsaw, despite the fact that they knew that the aircraft was actually going to land in Szymany (for further details see paragraphs 81-82 and 99-102 below). 4.     The applicant’s further transfers during CIA custody 37.     After his transfer out of Poland, the applicant was detained in Rabat, Morocco, until 22 September 2003, when he was flown to the US Naval Base in Guantanamo Bay. 38.     On 27 March 2004 the CIA flew the applicant from Guantanamo Bay back to Rabat. 39.     Subsequently, he was moved to the CIA secret detention facility in Bucharest, Romania, and remained there until he was finally transferred to Guantanamo Bay. 5.     The applicant’s detention in Guantanamo Bay and his trial before the Military Commission 40.     On 6 September 2006 President Bush publicly acknowledged that 14   “high value detainees”, including the applicant, had been transferred from the HVD Programme run by the CIA to the custody of the Department of Defense in the Guantanamo Bay Internment Facility (see also paragraph 18 above). 41.     Since an unspecified date, presumably in September 2006, the applicant has been detained in the US Naval Base in Guantanamo Bay. By that time, he had already been held in undisclosed detention for nearly 4   years. 42.     On 14 March 2007 the applicant was heard by the Combatant Status Review Tribunal, which purported to review all the information related to the question whether he met the criteria to be designated as an “enemy combatant” (i.e. an individual who was part of or supporting Taliban or Al’Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners, including one who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces). The hearing was closed to the public. The applicant was not afforded legal counsel at this hearing. A “personal representative” was appointed for him, but this person did not act as counsel and the applicant’s statements to this representative were not privileged. He did not have access to any classified evidence that was introduced against him. Nor did he have the right to confront any of the accusations that were introduced at this hearing. 43.     According to a partially redacted transcript of that hearing, the applicant stated that he “[had been] tortured into confession and once he [had] made a confession his captors [had been] happy and they [had] stopped torturing him. He also stated that he had made up stories during the torture in order to get it to stop and that “[f]rom the time I [had been] arrested five years ago, they [had] been torturing me. It [had] happened during interviews. One time they [had] tortured me one way and another time they [had] tortured me in a different way”. The applicant’s reply to the President of the Tribunal’s request to describe the methods that were used, is largely redacted from the transcript of the hearing. The unredacted portion however states that: “before I was arrested I used to be able to run about ten kilometres. Now, I cannot walk for more than ten minutes. My nerves are swollen in my body”. He also stated that “they used to drown me in water. So I used to say yes, yes.” Further details relating to his own description of his treatment are redacted from the transcript. 44.     On 30 June 2008, the US Government brought charges against the applicant for trial before a military commission, including those relating to the bombing of the USS Cole on 12 October 2000. 45.     On 2 October 2008, counsel for the applicant filed a petition for a writ of habeas corpus on his behalf in a federal district court of the District of Columbia. That petition is apparently still pending to date with no decision. 46.     On 19 December 2008, the Convening Authority authorised the Government to seek the death penalty at his military commission. 47.     Immediately after the referral of charges, the defence filed a motion with the military commission contesting the Government’s method of transporting the applicant to legal proceedings in Guantanamo Bay on the grounds that it was harmful to his health and violated his right to free and unhindered access to his counsel. 48.     Shortly after this motion was filed, the applicant’s arraignment –which signifies the start of his trial before a military commission – was set for 9 February 2009. 49.     On 22 January 2009 President Obama issued an Executive Order requiring that all commission proceedings be halted pending the Administration’s review of all detentions at Guantanamo Bay. In response to this order, the Government requested a 120-day postponement for the 9   February 2009 arraignment. 50.     On 25 January, 2009 the military judge assigned to the applicant’s military commission denied the Government’s request for postponement of the trial. Moreover, the military judge ordered that a hearing on the defence motion regarding the applicant’s transportation be held immediately after the arraignment. In response to this order, the defence filed a notice that it intended to introduce evidence of how he was treated while in CIA custody. Hours after this notice was filed, on 5 February 2009, the US   Government officially withdrew charges from the military commission, thus removing the applicant’s case from the military judge’s jurisdiction. 51.     Military commission rules applicable to the applicant have changed since the time he was transferred from Poland and are now governed by the Military Commission Act of 2009, which was enacted on 28 October 2009. However, they still provide for the death penalty and retain many of the deficiencies associated with the previous military commission rules. 52.     The United States Secretary of Defense or his designee acts as the convening authority for a given commission, approves charges for trial by a military commission and selects the commission members who are required to be members of the armed forces on or recalled to active duty, and as such are subordinate to the Secretary of Defense. Military commissions still apply only to non-US citizens. The current rules place no limits on the length of time within which a suspect must be charged or tried. Indeed, they expressly exempt military commissions from speedy trial requirements. Furthermore, the current military commission rules allow for the accused to be denied access to classified information or evidence and, unlike US   federal court procedures which bar the admission of hearsay, they expressly permit hearsay evidence and do not bar convictions based mainly on such evidence. 53.     The applicant submits that, given the widespread torture and abuse of US terrorism suspects, whose statements could be introduced as hearsay evidence against him, he is in consequence unable to confront witnesses against him. Unlike US federal court procedures which bar the admission of evidence derived from coerced statements, the current military commission rules admit evidence derived from coerced statements if that evidence would have been otherwise obtained and the use of such evidence would be consistent with the interests of justice. Moreover, the military commissions will still be held in the remote location of Guantanamo Bay, thereby significantly hindering public access to the proceedings against the applicant. Finally, there is considerable uncertainty associated with the current military commission rules, which were enacted as recently as October 2009 and have been applied so far in only three cases, none of which involved the death penalty. 54.     In March 2011 President Obama announced that he would be lifting a 2-year freeze on new military trials for detainees at the US Naval Base in Guantanamo Bay. 55.     On 20 April 2011 United States military commission prosecutors brought capital charges against the applicant relating to his alleged role in the attack on the USS Cole in 2000 and the attack on the French civilian oil tanker MV Limburg in the Gulf of Aden in 2002. The charges against him included terrorism, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, hazarding a vessel, using treachery or perfidy, murder in violation of the law of war, attempted murder in violation of the law of war, conspiracy to commit terrorism and murder in violation of the law of war, destruction of property in violation of the law of war and attempted destruction of property in violation of the law of war. The applicant wa