Covert Action

Polish Judges to Weigh In On the Legality of Detaining al Qaeda Members?

By Robert Chesney
Thursday, March 29, 2012, 11:01 AM

Will Polish judges have the occasion to weigh in on the legality of non-criminal detention of asserted al Qaeda members?  Probably so.  It appears that Polish prosecutors have brought charges against the former head of Poland's intelligence service, Zbigniew Siemiatkowski, on the ground that his cooperation with the CIA in establishing a black site detention facility in the country violated international law (the investigation apparently remains confidential at this time, and charges against other senior officials may yet follow, so details are sketchy beyond this).

A few thoughts:

First, this is a good illustration of something Jack talks about in great detail in his new book: the interplay between leaks to the media and various enforcement mechanisms that may subsequently be brought to bear (and, relatedly, the impact that growing appreciation for that dynamic may have on the degree to which other countries will cooperate with the CIA in certain contexts going forward).  In that vein, note the comments by Poland's Prime Minister, who was quick to note that the prosecution was a direct consequence of the decision by unnamed U.S. government officials who, years ago, leaked Poland's role in this supposedly covert operation to the media.

Second, the prosecution could become a focal point for contesting certain claims about which bodies of law govern the detention of al Qaeda members, just as has occurred in the GTMO habeas process.  I say this because the story in the Times suggests that the prosecution may focus at least in part on the claim that the detentions in question "unlawfully deprive[d]" those individuals of their liberty.  One assumes there also will be some interrogation-related issues, but let's set that aside for the moment and focus on the possibility of a prosecution focused on the fact of the detentions themselves.  What might this entail?

I know zilch about Polish criminal law, and have no idea how precisely it intersects with "international law."  That said, I wonder if the argument on the merits will be framed entirely in terms of the ECHR prohibition against arbitrary deprivation of liberty.  In that case, it would be exceedingly interesting to see whether the defense responds by invoking the IHL-based justifications for the detention upon which the US government typically relies (albeit in conjunction with a heavy emphasis on domestic American law (i.e., the AUMF)) in explaining its authority to detain in the GTMO habeas context.  If that issue does come up, it would then be very interesting to see both what the court thinks of such claims on the merits, and how the court approaches the lex specialis-type questions that would then follow.  Somehow, though, I doubt we'll see such debates fully aired.