AL-NASHIRI v. LITHUANIA

Published on 4 March 2024

SECOND SECTION

Application no. 31908/22
Abd Al Rahim Hussein AL-NASHIRI
against Lithuania
lodged on 20 June 2022
communicated on 21 February 2024

STATEMENT OF FACTS

1.  The applicant, Mr Abd Al Rahim Husseyn 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 Guantánamo Bay Naval Base in Cuba. He is represented before the Court by Ms M. Taube, a lawyer practising in Romford, Essex.

2.  The US authorities considered the applicant to have been one of the most senior figures in al-Qaeda who had been involved in the 1998 East Africa Embassy bombings. He has also been considered a suspect in the bombing of the United States Navy guided-missile destroyer USS Cole, which took place on 12 October 2000 in Aden, Yemen. The ship 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 other personnel.

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 sq.m) 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 US authorities have suspected the applicant of playing a role in the attack.

4.  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”.

5.  A detailed account of the HVD Programme can be found in the Court’s judgments in Al Nashiri v. Poland, no. 28761/11, §§ 47-68, 24 July 2014; 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.

6.  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.

7.  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”.

8.  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.”

9.  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”).

10.  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.

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 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.”

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 (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.

13.  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.

14.  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.

15.  In developing the RDI programme, the CIA contracted with two staff psychologists from the U.S. Air Force SERE[1] school. Doctor James Mitchell and Doctor Bruce Jessen. During their employment at the Air Force SERE school, they were responsible for monitoring the mental health of the cadre administering the course and the servicemembers going through the course. Both Mitchell and Jessen were highly familiar with the SERE techniques as well as the techniques used by foreign adversaries. The CIA employed them to implement a program of interrogation for use on high-value detainees in CIA custody. The objective of the program was to service CIA intelligence requirements. In so doing, the program officers sought to put detainees in a “compliance condition” and to force the detainees to answer questions from debriefers. In the event a detainee in the program was not providing the type, amount, or quality of information the agency desired, EITs would be employed – or escalated – in an attempt to extract that information. Dr Mitchell’s and Dr Jessen’s purpose for the EITs was to impart in the detainees a belief that the detainees themselves could end or even prevent their own suffering if they would comply and answer questions from the interrogator or debriefer. After the EITs phase, detainees generally had a fear of going back into the EIT phase. Dr Jessen described their program as creating a “contract” between the interrogators and detainees, whereby the interrogators made sure the detainees understood that they would not go back into EITs if they continued to cooperate and provide intelligence. The interrogators wanted the detainee to realise that he had a “pathway” whereby, if he provided even a little information, he could start to find a way out of captivity. The interrogators tried to ensure the detainees understood the contract was valid and EITs would not happen unless the detainee became non-compliant again[2].

16.  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.

17.  The application of the EITs to other terrorist suspects in CIA custody began in November 2002.

18.  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.

19.  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.

20.  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. ...”

21.  According to the 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.

22.  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.

23.  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.

24.  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.

25.  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.

26.  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.”

27.  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”).

28.  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”.

29.  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).

30.  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 47-48 below). The destruction was carried out in November 2005.

31.  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 than six million pages of CIA material, including operational cables, intelligence reports, internal memoranda and emails, briefing materials, interview transcripts, contracts and other records.

32.  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).

33.  The Committee made twenty findings and conclusions. They can be summarised, in so far as relevant, as follows.

34.  Conclusion 2 states that “the CIA’s justification for the use of its enhanced interrogation techniques rested on inaccurate claims of their effectiveness”.

35.  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.”

36.  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.”

37.  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.

38.  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.”

39.  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.

40.  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.

41.  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”.

42.  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.

43.  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.

44.  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.

45.  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 maintain detention facilities, including two facilities costing nearly [number redacted] million that were never used, in part due to the host country’s political concerns.

46.  According to the 2014 US Senate Committee Report:

“to encourage governments to clandestinely host CIA detention sites, or to increase support for existing sites, the CIA provided millions of dollars in cash payments to foreign government officials. The CIA Headquarters encouraged CIA Stations to construct ‘wish lists’ of proposed financial assistance to [phrase REDACTED] [entities of foreign governments] and to ‘think big’ in terms of that assistance”.

47.  In the 2014 US Senate Committee Report all names of the countries on whose territories the CIA carried out its extraordinary rendition and secret detention operations were redacted and all foreign detention facilities were colour code-named. It is explained that the CIA requested that the names of countries that hosted CIA detention sites, or with which the CIA negotiated hosting sites, as well as information directly or indirectly identifying those countries be redacted. The countries were accordingly listed by a single letter of the alphabet, a letter which was nevertheless blackened throughout the document. The report refers to eight specifically colour code-named CIA detention sites located abroad: “Detention Site Green”, “Detention Site Cobalt”, “Detention Site Black”, “Detention Site Blue”, “Detention Site Gray”, “Detention Site Violet”, “Detention Site Orange” and “Detention Site Brown”.

48.  The experts heard by the Court in Abu Zubaydah v. Lithuania and Al Nashiri v. Romania identified the locations of the above detention sites as follows: Detention Site Green was located in Thailand, Detention Site Blue in Poland, Detention Site Violet in Lithuania, Detention Site Black was identified as having been located in Romania and the remaining four sites were located in Afghanistan (see Al Nashiri v. Romania, cited above, § 159; and Abu Zubaydah v. Lithuania, cited above, § 166).

49.  In Al Nashiri v. Poland (cited above, § 417) the Court held as follows:

“Assessing all the above facts and evidence as a whole, the Court finds it established beyond reasonable doubt that:

(1)  on 5 December 2002 the applicant, together with Mr Abu Zubaydah, arrived in Szymany on board the CIA rendition aircraft N63MU;

(2)  from 5 December 2002 to 6 June 2003 the applicant was detained in the CIA detention facility in Poland identified as having the codename “Quartz”[3] and located in Stare Kiejkuty;

(3)  during his detention in Poland under the HVD Programme he was interrogated by the CIA and subjected to EITs and also to unauthorised interrogation techniques as described in the 2004 CIA Report, 2009 DOJ Report and the 2007 ICRC Report;

4)  on 6 June 2003 the applicant was transferred by the CIA from Poland on the CIA rendition aircraft N379P.”

50.  In Al Nashiri v. Romania (cited above, § 542), the Court held:

“... [T]he Court finds it established beyond reasonable doubt that:

(a)  On 12 April 2004 the applicant was transferred by the CIA from Guantánamo to Romania on board N85VM.

(b)  From 12 April 2004 to 6 October 2005 or, at the latest, 5 November 2005, the applicant was detained in the CIA detention facility in Romania code-named “Detention Site Black” according to the 2014 US Senate Committee Report.

(c)  On 6 October 2005 on board N308AB or, at the latest, on 5 November 2005, on board N1HC via a double-plane switch the applicant was transferred by the CIA out of Romania to one of the two remaining CIA detention facilities, code-named Detention Site Violet and Detention Site Brown according to the 2014 US Senate Committee Report.

51.  The applicant submitted that during the entirety of his detention he had no contact with the outside world, except for the CIA interrogators and personnel, his counsel representing him before the military commission in Guantánamo, the Guantánamo Prison Camp personnel and members and personnel of the military commission. He has been prevented under the military commission’s rules from speaking publicly – either directly or through his US military counsel – about his torture, ill-treatment, secret detention and rendition.

52.   The sequence of the applicant’s secret detention and transfers from the end of October 2002 (when he was captured in Dubai and then transferred to CIA custody up to 6 October 2005 (the date of his alleged rendition to Lithuania) has been established in Al Nashiri v. Poland (cited above, §§ 91-109 and 401-417) and in Al Nashiri v. Romania (cited above, §§ 98-139 and 499-542). In Al Nashiri v. Romania (at § 542) the Court found it established beyond reasonable doubt that:

“(a)  On 12 April 2004 the applicant was transferred by the CIA from Guantánamo to Romania on board N85VM.

(b)  From 12 April 2004 to 6 October 2005 or, at the latest, 5 November 2005, the applicant was detained in the CIA detention facility in Romania code-named “Detention Site Black” according to the 2014 US Senate Committee Report.

(c)  On 6 October 2005 on board N308AB or, at the latest, on 5 November 2005, on board N1HC via a double-plane switch the applicant was transferred by the CIA out of Romania to one of the two remaining CIA detention facilities, code-named Detention Site Violet and Detention Site Brown according to the 2014 US Senate Committee Report.”

53.  The applicant stated that that on 5 October 2005 he had been transferred together with Khaled Sheikh Mohammed to Lithuania in a rendition operation involving two aircraft: N308AB and N787WH. Plane N787WH landed at Vilnius International Airport on 6 October 2005. He submitted that, subsequently, he had been detained in a secret CIA prison, codenamed “Detention Site Violet” in the 2014 US Senate Committee Report and referred to as “Project No. 2” in an inquiry conducted by the Lithuanian Parliament (see paragraphs 95-97 below; see also Abu Zubaydah v. Lithuania, cited above, §§ 167-178). He was held there for over five months, until Detention Site Violet closed on 25 March 2006. He and a number of other High-Value Detainees, including Khaled Sheikh Mohammed and Abu Zubaydah, were transferred out of Lithuania on 25 March 2006 on board the rendition plane N733MA via Cairo and another “double-plane switch”, involving N733MA and the CIA rendition plane registered as N740EH, which both made a connection in Cairo on the night of 26 March 2006. The applicant was subsequently detained at the CIA secret prison codenamed Detention Site Orange in the 2014 US Senate Committee Report, which was located in Afghanistan.

54.   In support of his allegations the applicant produced, among other documentary evidence, a witness statement of Dr Sam Raphael, professor at the University of Westminster and an expert specialising in collecting and analysing records of the CIA rendition programme. His work comprises the creation of the CIA Flights Database, the CIA Prisoner Database (which includes findings in relation to where and when each of 119 CIA prisoners named in the 2014 US Senate Committee Report was held in secret detention) and the CIA Cable Database (which includes cable series from the CIA “black sites” allowing to pinpoint geographically the originating location of cables discussing secret detention, rendition and torture of individual prisoners). He also runs the UK Economic and Social Research Council (ESRC)-funded project which works with non-governmental organisations and human rights investigators to uncover and understand human rights violations in the “War on Terror”.

Dr Raphael’s statement, dated 18 June 2021, reads, in so far as relevant, as follows:

“44.  Mr. al-Nashiri was held at the CIA black site in Lithuania for over five months, from 6 October 2005 until 25 March 2006. Of particular importance, our analysis of the CIA cable number 3910, sent at 18:52 on 24 January 2006, shows categorically that it originated form the Lithuanian black site. The cable confirms conclusively Mr al-Nashiri’s detention at this site and contains a report form a CIA psychologist who assessed the prisoner while detained there.

45.  All prisoners held at the CIA black site in Lithuania, including Mr. al-Nashiri, Abu Zubaydah, Mustafa al-Hawsawi and Khaled Sheikh Mohammed, were rendered to Afghanistan on 25 March 2006, on board two aircraft N733MA and N740EH.

...

IV. CONCLUSIONS

48.  Having reviewed our analysis of CIA flight records, prisoner testimony, CIA cables, declassified documents and the public findings contained within the Committee Study[4], all set out in detail in our book CIA Torture Unredacted, I conclude that:

a.  The CIA facility referred to as DETENTION SITE VIOLET in the Committee Study has been established as certain to have been in Lithuania; and

b.  M. al-Nashiri was held in secret detention at DETENTION SITE VIOLET from 6 October 2005 until 25 March 2006.”

55.  Mr J.G.S and Dr Crofton Black, experts who were heard by the Court at the fact-finding hearing in Al Nashiri v. Romania (cited above, §§ 131-132) testified as follows.

Mr J.G.S. stated:

“There are two known and documented junctures at which CIA detainees at the ‘black site’ in Romania were removed from Romania. The first of those, I illustrated with my last set of graphics, on 5 and 6 October, which took detainees from Bucharest, Romania via switching of aircraft in Albania, to Vilnius, Lithuania. The second took place on 5 November 2005, within three to four days of the Washington Post’s report, and at the insistence of the Romanian authorities, which took detainees via Amman, Jordan to Kabul, Afghanistan. We know that at 1 January 2006 there were only two CIA detention sites in active operation, that much is stated in the Senate Report. Those were the sites known as ‘Violet’ and ‘Orange’: the former, ‘Violet’, in Lithuania, the latter, ‘Orange’, in Afghanistan. And so Al Nashiri, in all likelihood and without any other information to refer to, was taken to one of those two destinations on one of those two flights. Based upon my earlier rationale about the five different facilities in which he was held, I would aver that it is more likely than not that he was taken from Romania to Lithuania on 5 and 6 October 2005 and was held there until onwards transfer in March 2006 to Afghanistan and subsequently on to Guantánamo Bay. That would, logically, complete the number and nature of detention experiences chronicled in the Senate Committee Report and other documents released by the United States.”

Dr Black stated:

“ ... [T]here are two possibilities, and I believe only two possibilities: one is that [the applicant] left [Romania] in October 2005, on 5 October 2005, and the other is that he left on the 5 November 2005. If the flight on 5 October 2005 was a dual flight, it was a kind of a two-plane switch that took prisoners from Romania into Lithuania, and the flight the following month in November 2005 was again a two-plane switch that took prisoners from Romania into Afghanistan. I think there is an indication in the data that we have, based on the Senate Report, that Mr Nashiri was taken to Lithuania, which should mean he was taken in October rather than November, but it is, I would not say it is a hundred per cent clear, unambiguous. I would say it is an indication that seems probable. There is no doubt that the flight in November signalled the end of the Romanian site, I mean it came, I do not know, 72 hours after the existence of the site had been revealed in The Washington Post, the government had demanded the site shut down, the Senate Report is very clear that at that point everyone who was remaining in Romania was shipped out to Afghanistan, so at that point, after the 5 November 2005, the CIA ‘black site’ programme was operating only in Lithuania and in Afghanistan.”

56.  The applicant produced a ruling of the Military Commissions Trial Judiciary in Guantánamo Bay (no. AE 467CCC), issued by military judge Lanny J. Acosta, Jr. on 18 August 2023. The ruling concerned the applicant’s US defence counsel’s motion to supress custodial statements made by the applicant to US government officials from January to March 2007 (see also paragraphs 86-87 below). The ruling, in its part relating to the applicant’s transfer from Detention Site Black in Romania to Detention Site Violet, reads as follows:

“jj.  ...In June 2005, the Chief of Base at DETENTION SITE BLACK suspended debriefings of the [applicant] because it was rare for the [applicant] to recognize any photographs being shown to him and the repeat debriefings often caused outbursts. In July 2005, the CIA was concerned that the [applicant] was depressed, uncooperative, and on the “verge of a breakdown.”

kk. In late 2005 the [applicant] was then rendered to DETENTION SITE VIOLET (Location 8), ...”

57.  The above ruling of 18 August 2023 gives a detailed description (entitled “The Accused’s ‘Sojourn through Captivity’”) of the applicant’s treatment in CIA custody at each black site as from his capture in mid-October 2002 to his rendition to Guantánamo on 5 September 2006.

58.  According to the ruling, at Detention Site Cobalt (located in Afghanistan) the applicant was subjected, inter alia, to the following treatment:

“d.  The Accused was rendered to U.S. CIA custody at DETENTION SITE COBALT (Location 2) in November 2002. Standard operating procedures at COBALT during this period included total darkness, standing sleep deprivation, loud music, isolation, and dietary manipulation. Dr. Jessen saw paramilitary forces there and described it as ‘gloomy and dark’, ‘very unpleasant’, ‘deplorable’, and ‘medieval’. It was very cold, and detainees were shackled to metal rings mounted in concrete walls. Detainees were held naked in their cells, which Dr. Mitchell described as ‘like a horse stall’ with only a waste bucket.

...

f.  When the Accused arrived at COBALT, he was placed in a cell and shackled for approximately one hour before Dr. Mitchell approached him. Mitchell then asked a guard to bring the Accused into the interrogation room, which was a small room constructed out of plywood. The room contained bright halogen lights that would shine into the Accused’s face. Dr. Mitchell then removed the Accused’s hood and asked the Accused, “[w]hat would you like me to know about you?” Initially, the Accused was “perfectly willing” to talk about the USS COLE but refused to answer questions about future operations. Mitchell told the Accused that he wanted to hear about future threats. Mitchell told the Accused that the next time the Accused talked to someone they were going to ask him questions and if he answered those questions nothing bad would happen to him. The Accused was returned to his cell and shackled to the wall.

g.  The Accused was labelled as a ‘typical resister’ and Mitchell and Jessen nicknamed him ‘Little Shit’.”

59.  The treatment at Detention Site Green (located in Thailand), was described as follows:

i.  Use of EՄs at GREEN included cramped confinement in large and small boxes. The Accused was often left naked in the boxes for hours at a time. The larger of the boxes was approximately the size of a coffin and the smaller was slightly larger than a miniature refrigerator. The temperature of the site was cold enough that the Accused could see condensation forming on the walls of the box. Mitchell and Jessen were actually under the impression that the Accused preferred going into the boxes because it provided a break from the lights, cold, and interrogators.

j. On day one of the ‘aggressive interrogation phase’, the Accused said he was ready to talk. Interrogators told the Accused that ‘they would do whatever it takes to get the information they wanted from him’. The interrogators began using EITs on the Accused, including the attention grab and walling. His clothes were ripped off him by the security team. ‘[The Accused] whimpered that he would do anything the interrogators wanted’. Eventually interrogators warned the Accused that he would be left alone to consider the information the interrogators were seeking, and he was told that ‘if he refused to cooperate, he would suffer in ways he never thought possible’. Later that day, he was forcibly shaved by security staff while the Accused ‘moaned and wailed’. He was then locked inside of the large box at 0445 hours.

k.  During the second session of day one, the Accused was pulled out of the large box at 1703 hours. He was backed against the ‘walling panel’ in his cell, a rolled-up towel was placed around his neck, and the hood was slowly removed from his head, revealing his interrogator. His interrogator stood silent for 30 seconds, then ‘repeated with a hiss’ that the interrogators wanted complete, accurate information from him. The Accused almost immediately again confessed to his role in the attack on the USS COLE. When he did not provide additional information the interrogators were seeking, he was walled and placed in the small box. His interrogators were left ‘guardedly optimistic that the aggressive procedures may already be having an impact on [the Accused’s] resistance posture’.

l   So it went for the Accused. Each time the Accused was subjected to EITs, interrogators generally concluded he was ‘compliant and cooperative’. However, CIA Headquarters disagreed and instructed on-site officers to continue using EITs. When the Accused did not respond to certain questions, the interrogators escalated the measures.

m.  Eventually, Mitchell and Jessen turned, with CIA Headquarters’ blessing, to the waterboard to try to obtain more information from the Accused. Waterboarding was conducted by strapping the Accused onto a medical gurney which would be angled down at a 40-degree angle at the head, such that the Accused’s feet would be higher than his head. The Accused would have a neck brace put around his neck to hold his head in place. The interrogators would then cover the Accused’s face with a thin piece of cotton fabric, like a towel, and pour water over the cloth for anywhere from 2-40 seconds at a time, usually starting with shorter ‘pours’ and proceeding to longer ‘pours’. Between pours, Mitchell would lift the cloth and talk to the Accused, then put the cloth back and the pouring would re-commence. After they reached a long pour, which may have gone on for 40 seconds, the gurney would then be lifted upright so the detainee could clear his sinuses and take at least three breaths. The interrogators would then lower the gurney and begin pouring again. This process would continue for up to fifteen minutes. ...

n.  On one of the occasions where the Accused was subjected to waterboarding, he began to slide out of the straps onto the floor because he was too small in stature for the straps to hold him on the gurney. Mitchell described the Accused during waterboarding sessions as ‘anxious’ and ‘struggling’. Jessen described waterboarding as ‘visually and psychologically very uncomfortable for all of those involved’. In fact, Jessen described a waterboarding session of Abu Zubaydah in which some observers in the room cried while watching the procedure.

o.  The Accused was at GREEN for approximately three weeks. That site was also dark; there was no natural light. Temperature was manipulated to leave the Accused naked in a cold cell. Loud music was played in the cell. The cells were empty except for a waste bucket. The guards dressed in all black. The Accused was subjected to sleep deprivation. There were bars on the ceiling from which to hang detainees with their arms above their heads as part of standing sleep deprivation. Detainees were also short shackled to the floor. ...”

60.  The treatment and conditions at Detention Site Blue (located in Poland) were described as follows:

“r.  In December 2002, GREEN was closed, and the Accused and Abu Zubaydah were rendered to DETENTION SITE BLUE (Location 4). BLUE included bright lights, loud music, empty cells with waste buckets, nudity, and constant monitoring.

...

t.  After multiple debriefings, officers at BLUE wrote to headquarters that the Accused was providing ‘logical and rational’ answers and that no further enhanced measures were needed. Headquarters disagreed again.

u.  CIA officer NX2, who at times was referred to as “the New Sheriff,”^։ took over the interrogation of the Accused, supervising several interrogators who used a series of unauthorized techniques. They placed the Accused in a standing stress position with his hands above his head for approximately two-and-a-half days. They put a pistol to the Accused’s head and also threatened the Accused with a power drill. They slapped the Accused multiple times on the back of the head and blew cigar smoke in his face. At least one interrogator told the Accused that the Accused’s mother could be brought in and sexually abused while the Accused was forced to watch. The Accused was forcibly washed and scrubbed, including his buttocks and genitals, with a stiff boar brush which was then forced into the Accused’s mouth. The Accused reported to Dr. Crosby, a defense expert on torture, that he was sodomized with the brush. Additionally, the Accused was also placed in ‘improvised’ stress positions that caused cuts and bruises.

v.   One of these stress positions involved the Accused’s elbows together behind his back with a belt and hanging him from them. On at least one occasion, the use of this stress position caused Mitchell to intervene because he believed the Accused’s shoulders might become dislocated. Mitchell also witnessed NX2 put a broomstick behind the Accused’s knees, force him to kneel, and then lean back, causing him extreme pain. He also saw people lean die Accused’s head against the wall and then lean their own bodies on him, putting all the weight onto the Accused’s neck. According to Mitchell, NX2 was using some of these unapproved measures not for operational reasons but because the Accused refused to call NX2 ‘sir’....”

61.  As regards conditions of detention at a black site “Echo II” located at Naval Station Guantánamo Bay or “NSGB” (late 2003 until early 2004), the ruling states that “[e]vidence demonstrates that some detainees had access to fresh air, sunlight, socialisation and outdoor recreation”. However, it was unclear whether this was actually the case for the applicant.

62.  The situation at Detention Site Black (located in Romania) was described as follows:

“ii.  After leaving NSGB in mid-2004, the Accused was rendered to DETENTION SITE BLACK (Location 7). Conditions at BLACK included solitary confinement, constant light, sleep deprivation, attention grasp, and facial hold. Detainees could earn ‘amenities’ and had access to showers for the first time in the program, being allowed to shower once a week.

jj.  An October 2004 psychological assessment of the Accused was used by the CIA to discuss reaching an ‘endgame’ for the program. In June 2005, the Chief of Base at DETENTION SITE BLACK suspended debriefings of the Accused because it was rare for the Accused to recognize any photographs being shown to him and the repeat debriefings often caused outbursts. In July 2005, the CIA was concerned that the Accused was depressed, uncooperative, and on the ‘verge of a breakdown’.”

63.  The situation at Detention Site Violet was described as follows:

“kk.  In late 2005 the Accused was then rendered to DETENTION SITE VIOLET (Location 8), which also included solitary confinement and bright lights. There were no EITs, as Mitchell and Jessen concluded physical pressures were no longer necessary because the contract could be maintained with emotional and psychological coercion.”

64.  The ruling further states that in mid-2006 the applicant was rendered to Detention Site Orange (located in Afghanistan), which was an open compound, but detainees were still held in solitary confinement. They had access to a library and food choices.

65.  In its ruling of 18 August 2023 (see also paragraph 56 above) the military commission found that between 2002 and 2006 in the HVD Programme the applicant had been subjected to physical coercion and abuse amounting to torture as well as living conditions which constituted cruel, inhuman and degrading treatment.

66.  The 2014 US Senate Committee Report refers to “Detention Site Violet” in several sections concerning various events (see also Abu Zubaydah v. Lithuania, cited above, §§ 147-149).

In the chapter entitled “The CIA establishes DETENTION SITE BLACK in COUNTRY [REDACTED] and DETENTION SITE VIOLET in Country [REDACTED]” the section referring to Detention Site Violet reads as follows:

“[REDACTED] In a separate [from country hosting Detention Site Black], Country [name blackened], the CIA obtained the approval of the [REDACTED] and the political leadership to establish a detention facility before informing the U.S. ambassador. As the CIA chief of Station stated in his request to CIA Headquarters to brief the ambassador, Country [REDACTED]’s [REDACTED] and the [REDACTED] probably would ask the ambassador about the CIA detention facility. After [REDACTED] delayed briefing the [REDACTED] for [number blackened] months, to the consternation of the CIA Station, which wanted political approval prior to the arrival of CIA detainees. The [REDACTED] Country [REDACTED] official outside of the [REDACTED] aware of the facility, was described as ‘shocked’, but nonetheless approved.

[REDACTED] By mid-2003 the CIA had concluded that its completed, but still unused ‘holding cell’ in Country [REDACTED] was insufficient, given the growing number of CIA detainees in the program and the CIA’s interest in interrogating multiple detainees at the same detention site. The CIA thus sought to build a new, expanded detention facility in the country. The CIA also offered $ [one digit number blackened] million to the [REDACTED] to ‘show appreciation’ for the [REDACTED] support for the program. According to a CIA cable however [long passage blackened]. While the plan to construct the expanded facility was approved by the [REDACTED] of Country [REDACTED], the CIA and [passage redacted] developed complex mechanisms to [long passage REDACTED] in order to provide the $ [one digit number blackened] million to the [REDACTED].

[REDACTED] in Country [REDACTED] complicated the arrangements. [long passage REDACTED] when the Country [REDACTED] requested an update on planning for the CIA detention site, he was told [REDACTED] – inaccurately – that the planning had been discontinued. In [date REDACTED], when the facility received its first detainees, [REDACTED] informed the CIA [REDACTED] that the [REDACTED] of Country [REDACTED] ‘probably has an incomplete notion [regarding the facility’s] actual function, i.e., he probably believes that it is some sort of [REDACTED] center.”

67.  In the chapter entitled “The Pace of CIA Operations Slows; Chief of Base Concerned About ‘Inexperienced, Marginal, Underperforming’ CIA Personnel; Inspector General Describes Lack of Debriefers As ‘Ongoing Problem’”, the section referring to Detention Site Violet reads as follows:

“[REDACTED] In 2004, CIA detainees were being held in three countries: at DETENTION SITE BLACK in Country [REDACTED], at the [redacted] facility [REDACTED] in Country [REDACTED], as well as at detention facilities in Country [REDACTED]. DETENTION SITE VIOLET in Country [REDACTED] opened in early 2005.”

68.  In the chapter entitled “Press Stories and the CIA’s Inability to Provide Emergency Medical Care to Detainees Result in the Closing of CIA Detention Facilities in Countries [REDACTED] and [REDACTED]”, the section referring to the closure of Detention Site Black and events at the Detention Site Violet reads as follows:

“In October 2005, the CIA learned that the Washington Post reporter Dana Priest had information about the CIA’s Detention and Interrogation Program, [REDACTED]. The CIA then conducted a series of negotiations with The Washington Post in which it sought to prevent the newspaper from publishing information on the CIA’s Detention and Interrogation Program.

...

After publication of the Washington Post article, [REDACTED] Country [REDACTED] demanded the closure of DETENTION SITE BLACK within [REDACTED two-digit number] hours. The CIA transferred the [REDACTED]| remaining CIA detainees out of the facility shortly thereafter.

...

[long passage REDACTED] In [REDACTED] Country [REDACTED] officers refused to admit CIA detainee Mustafa Ahmad al-Hawsawi to a local hospital despite earlier discussions with country representatives about how a detainee’s medical emergency would be handled. While the CIA understood the [REDACTED] officers’ reluctance to place a CIA detainee in a local hospital given media reports, CIA Headquarters also questioned the ‘willingness of [REDACTED] to participate as originally agreed/planned with regard to provision of emergency medical care’. After failing to gain assistance from the Department of Defense, the CIA was forced to seek assistance from three third-party countries in providing medical care to al-Hawsawi and four other CIA detainees with acute ailments. Ultimately, the CIA paid the [REDACTED] more than $ [two-digit number redacted] million for the treatment of [name REDACTED] and [name REDACTED], and made arrangements for [name REDACTED] and [name REDACTED] be treated in [REDACTED]. The medical issues resulted in the closing of DETENTION SITE VIOLET in Country [REDACTED] in [five characters for the month REDACTED] 2006. The CIA then transferred its remaining detainees to DETENTION SITE BROWN. At that point, all CIA detainees were located in Country [REDACTED].

...

The lack of emergency medical care for detainees, the issue that had forced the closing of DETENTION SITE VIOLET in Country [REDACTED] was raised repeatedly in the context of the construction of the CIA detention facility in Country [REDACTED]. On March [REDACTED two-digit number], 2006 the CIA Headquarters requested that the CIA Station in Country [REDACTED] ask Country [REDACTED] to arrange discreet access to a nearest hospital and medical staff.”

69.  Dr Raphael, in his witness statement, said that from 26 March 2006 to 4-5 September 2006 the applicant had been held in Afghanistan at Detention Site Brown and had subsequently been rendered to Guantánamo.

According to the military commission’s ruling of 18 August 2023, in mid-2006 the applicant was rendered to Detention Site Orange (located in Afghanistan).

70.  On 6 September 2006 President Bush publicly acknowledged that fourteen 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 Guantánamo Bay Internment Facility (see also paragraph 60 above).

(a)   Hearing before the Combatant Status Review Tribunal

71.  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.

72.  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.

(b)   Trial before the military commission

73.  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.

74.  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.

75.  On 19 December 2008, the Convening Authority authorised the Government to seek the death penalty at his military commission.

76.  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 Guantánamo Bay on the grounds that it was harmful to his health and violated his right to free and unhindered access to his counsel.

77.  Shortly after this motion was filed, the applicant’s arraignment –which signified the start of his trial before a military commission – was set for 9 February 2009.

78.  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 Guantánamo Bay. In response to this order, the Government requested a 120-day postponement for the 9 February 2009 arraignment.

79.  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.

80.  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 Guantánamo Bay.

81.  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 was designated for trial by military commission despite the fact that the United States Government had previously indicted two of his alleged co-conspirators for the USS Cole bombing – Jamal Ahmed Mohammed Al-Badawi and Fahd Al-Quso – in the US federal court. The relevant indictment, filed on 15 May 2003 while the applicant was secretly held in CIA custody in Poland, identified him as an unindicted со-conspirator in the USS Cole bombing.

82.  The military commission prosecutors announced that the capital charges against the applicant would be forwarded for independent review to Bruce MacDonald, the “convening authority” for the military commissions, for a decision whether to reject the charges or to refer some, all or none of them for trial before the military commission.

83.  On 27 April 2011 Mr MacDonald informed the US military defence counsel for the applicant that he would accept written submissions against the death penalty until 30 June 2011.

On 28 September 2011 the capital charges against the applicant were approved.

84.  The military commission hearing in the applicant’s case began on 17 January 2012. The first two days of the trial were devoted mostly to pre‑trial motions.

85.  The proceedings against the applicant before the military commission are pending.

According to a statement “Remarks at Guantánamo Bay” issued by Chief Prosecutor Mark Martins on 17 March 2017, the day before the military commission convened to try Al Nashiri completed a pre-trial session to resolve disputes regarding “outstanding legal and evidentiary issues”. During the session, the Military Judge directed that the military commission would be in session from 31 July to 4 August, from 11 to 29 September and from 6 to 17 November 2017. He also announced that he planned to issue soon a final discovery order as well as a trial order for 2018.

The case is still in the process of pre-trial litigation.

86.  On 17 February 2022 the applicant’s defence counsel made a motion to the military commission to supress custodial statements made by the applicant in January, February and March 2007. The US Government opposed the motion. The commission had evidentiary hearings from July 2002 through June 2023 and heard oral arguments following the presentation of evidence on 30 June 2023 in Guantánamo. The US Government conceded that the applicant had been tortured by the CIA.

87.  On 18 August the military judge, Mr Lanny J. Acosta Jr gave a ruling (see also paragraph 56 above) granting the motion in respect of January-February 2006 interviews by the FBI agents and rejecting it in respect of the applicant’s statements before the Combatant Status Review Tribunal in March 2007 (see also paragraphs 71-72 above).

88.  Upon the applicant’s transfer to Guantánamo, CIA officials diagnosed him with anxiety and major depressive disorder.

89.  In Al Nashiri v. Romania (cited above, § 157) the applicant’s representative produced a psychological evaluation of the applicant by US government psychiatrists, which had been conducted at the request of the US government. It stated that Mr Al Nashiri suffered from Post-Traumatic Stress Syndrome.

90.  In the 2014 US Senate Committee Report, in the chapter “CIA Detainees Exhibit Psychological and Behavioral Issues”, it is stated that psychological and behavioural problems experienced by CIA detainees, who had been held in austere conditions and in solitary confinement, had also posed “management challenges” for the CIA.

The section referring to the applicant reads as follows:

“... Abd al-Rahim al-Nashiri’s unpredictable and disruptive behavior in detention made him one of the most difficult detainees for the CIA to manage. Al-Nashiri engaged in repeated belligerent acts, including throwing his food tray, attempting to assault detention site personnel, and trying to damage items in his cell. Over a period of years, al-Nashiri accused the CIA staff of drugging or poisoning his food and complained of bodily pain and insomnia. As noted, at one point, al- Nashiri launched a short-lived hunger strike, and the CIA responded by force feeding him rectally.

An October 2004 psychological assessment of al-Nashiri was used by the CIA to advance its discussions with National Security Council officials on establishing an ‘endgame’ for the program.

In July 2005, CIA Headquarters expressed concern regarding al-Nashiri’s ‘continued state of depression and uncooperative attitude’. Days later a CIA psychologist assessed that al-Nashiri was on the ‘verge of a breakdown’.”

91.  In March 2012 Dr Sondra S. Crosby, an expert in internal medicine and the treatment of victims of torture, was appointed by the U.S. Defense Department to conduct an evaluation of the applicant. After meeting with him for approximately 30 hours, she submitted her declaration in October 2015, stating, among other things, that Mr Al Nashiri suffered from complex posttraumatic stress disorder as a result of extreme physical, psychological, and sexual torture inflicted upon him by the CIA. She added that, in her opinion, the CIA had also succeeded in inducing “learned helplessness” and that he was most likely irreversibly damaged by torture that had been unusually cruel and designed to break him. In her view, the applicant presented as one of the most severely traumatised individuals she had ever seen.

92.  On 9 September 2009, in connection with various media reports and publicly expressed concerns regarding the alleged existence of a CIA secret detention facility in Lithuania, the Seimas Committee on National Security and Defence (“the CNSD”) and the Seimas Committee on Foreign Affairs held a joint meeting at which they heard representatives of State institutions in relation to the media reports concerning the transportation and detention of CIA prisoners in the Republic of Lithuania. The committees did not receive any data confirming the existence of a CIA prison in Lithuania. Written replies submitted to them by State institutions denied that such a prison had ever existed.

93.  On 20 October 2009, during his visit to Lithuania, the Commissioner for Human Rights of the Council of Europe, Mr Thomas Hammarberg, urged the authorities to carry out a thorough investigation concerning the suspicions that a secret CIA prison had operated in the country.

94.  On 20 October 2009, at a press conference, the President of the Republic, Ms Dalia Grybauskaitė, in reply to questions regarding the alleged existence of a CIA prison in Lithuania, said that she had “indirect suspicions” that it could have been in Lithuania.

95.  On 5 November 2009 the Seimas adopted Resolution No. XI-459, assigning the CNSD to conduct a parliamentary investigation into the allegations of transportation and confinement of individuals detained by the CIA on Lithuanian territory.

The following questions were posed to the CNSD:

(1)  whether CIA detainees were subject to transportation and confinement on the territory of the Republic of Lithuania;

(2)  whether secret CIA detention centres had operated on the territory of the Republic of Lithuania;

(3)  whether State institutions of the Republic of Lithuania (politicians, officers, civil servants) considered issues relating to activities of secret CIA detention centres or transportation and confinement of detainees in the Republic of Lithuania.

96.  The findings of the inquiry are included in the Annex to the Seimas’ Resolution No. XI-659 of 19 January 2010 – “Findings of the parliamentary investigation by the Seimas Committee on National Security and Defence concerning the alleged transportation and confinement of persons detained by the Central Intelligence Agency of the United States of America on the territory of the Republic of Lithuania” (“CNSD Findings”). The relevant passages from that document are extensively cited in Abu Zubaydah v. Lithuania and can be found in paragraph 174 of that judgment.

97.  The principal findings of the CNSD can be summarised as follows:

“In 2002-2005, the aircraft which official investigations link to the transportation of CIA detainees crossed the airspace of the Republic of Lithuania on repeated occasions. The data collected by the Committee indicate that CIA-related aircraft did land in Lithuania within the mentioned period of time.

The Committee failed to establish whether CIA detainees were transported through the territory of the Republic of Lithuania or were brought into or out of the territory of the Republic of Lithuania; however, conditions for such transportation did exist.

...

The Committee established that the SSD had received a request from the partners to equip facilities in Lithuania suitable for holding detainees.

While implementing Project No. 1 in 2002, conditions were created for holding detainees in Lithuania; however, according to the data available to the Committee, the premises were not used for that purpose.

The persons who gave testimony to the Committee deny any preconditions for and possibilities of holding and interrogating detainees at the facilities of Project No. 2; however, the layout of the building, its enclosed nature and protection of the perimeter as well as fragmented presence of the SSD staff in the premises allowed for the performance of actions by officers of the partners without the control of the SSD and use of the infrastructure at their discretion.

...

According to the country’s top officials (Presidents of the Republic, Prime Ministers, and Speakers of the Seimas), the members of the CNSD of the Seimas were informed about the international cooperation between the SSD and the CIA in a general fashion, without discussing specific operations or their outcomes. The mention of wide-scale direct cooperation between the SSD and CIA was made only once, at a sitting of the State Defence Council (19 September 2001) when considering the issue of international terrorism and anti-terrorist actions and prevention, crisis management and the legal bases for all these. Transportation and detention of detainees were not discussed at the sitting of the State Defence Council of Lithuania. The CNSD of the Seimas was not informed of the nature of the cooperation taking place.

On the basis of the information received, the Committee established that when carrying out the SSD partnership cooperation Project No. 1 and Project No. 2, the then heads of the SSD did not inform any of the country’s top officials of the purposes and content of the said Projects.”

98.  On 30 November 2020 the applicant’s Lithuanian representative asked the Prosecutor General of the Republic of Lithuania to open an investigation into the involvement of Lithuanian officials and government bodies in the applicant’s extraordinary rendition, secret detention, torture and ill-treatment in Lithuania. The prosecution authorities were requested to clarify the circumstances and conditions in which Mr Al-Nashiri had been brought into Lithuania, treated in Lithuania and thereafter removed from Lithuania so as to enable the identification and, where appropriate, the punishment of those responsible. The applicant’s representative also asked them to grant the applicant victim status and allow his representatives to participate in the proceedings.

99.  On 10 December 2020 the Prosecutor General’s Office - Organised Crime and Corruption Investigation Division issued a decision refusing to recognise the applicant as victim in the framework of pre-trial investigation no. 01-2-00015-14 That investigation had been instituted on 13 February 2014 and, as stated in the decision, concerned offence under Article 100 of the Code of Criminal Procedure[5] and “the treatment of human beings prohibited by international law in the framework of the rendition and detention programme of persons detained by the CIA on the territory of the Republic of Lithuania”.

100.  On 17 September 2021, following the applicant’s representative appeal, this decision was upheld by the Chief Prosecutor at the Prosecutor General’s Office. A further appeal by the applicant’s representative was dismissed by the Vilnius District Court on 29 November 2021. This decision was upheld on appeal by the Vilnius Regional Court on 30 December 2021.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

101.  The relevant legal and other material, together with the domestic law and practice, are set out in Abu Zubaydah v. Lithuania (cited above) as follows:

(i) for relevant domestic law and practice see §§ 212-19;

(ii) for international material, including international law relevant for the case see §§ 220-50;

(iii) for selected media reports and articles on the CIA rendition operations see §§ 251-63;

(iv) for international inquiries relating to the CIA secret detention and rendition of suspected terrorists in Europe, including Lithuania see §§ 264-303.

COMPLAINTS

102.  The applicant alleges a violation of Article 3 of the Convention in its substantive aspect in that Lithuania facilitated or acquiesced in his torture, cruel, inhuman or degrading treatment by unknown persons believed to be CIA agents and other US officials on its territory, at the CIA secret facility. codenamed “Detention Site Violet”, as part of the CIA Rendition Programme. Lithuania also failed to take measures to prevent his torture and ill-treatment, contrary to this provision.

103.  Relying on Article 3 of the Convention in its procedural aspect, the applicant complains that Lithuania has failed to carry out an effective investigation into his allegations of serious violations of the Convention. The applicant’s allegations concerning torture and ill-treatment in Lithuania, as well as his transfer out of Lithuania to a third State or States where he faced a real and immediate risk of torture, in violation of Article 3, have not been adequately or effectively investigated. Furthermore, the Prosecutor General refused to conduct a pre-trial investigation into the allegation that the applicant had been tortured and ill-treated at “Detention Site Violet” and the actions or omissions of the Lithuanian authorities in this respect. The Prosecutor General’s decision-making on this matter lacked the requisite transparency, was not prompt, was wholly inadequate, and did not allow the applicant – as a victim – to participate in the proceedings.

104.  The applicant alleges a breach of Article 5 of the Convention in that he was arbitrarily detained, unacknowledged and outside of any legal process in Lithuania, and without any access to legal representation. The applicant’s transfers into and out of Lithuania were permitted and/or enabled by the Lithuanian authorities. He was exposed to the real and foreseeable risk that he would be subjected to further arbitrary, undisclosed and indefinite detention in flagrant violation of Article 5, and indeed his rendition from Lithuania led to such further and ongoing violations.

105.  Under Article 8 of the Convention, the applicant complains that Lithuania’s actions or omissions with respect to his detention, torture, ill treatment, transfers and resulting prolonged separation from his family constituted an unlawful interference with his moral and physical integrity and his right to private and family life.

106.  He also submits that, in breach of its obligations under Article 6 of the Convention, Lithuania cooperated and assisted in his transfer from its territory, in circumstances where the authorities knew – or ought to have known – that there was a real and serious risk that he would be transferred to a jurisdiction where he would be subjected to a flagrant denial of justice.

107.  Invoking Articles 2 and 3 of the Convention, read together with Article 1 of Protocol No. 6 to the Convention, the applicant complains that Lithuania knowingly enabled his transfer from its territory to other CIA-run detention facilities, despite that there were substantial grounds for believing that there was а real and serious risk that he would be subjected to the death penalty.

108.  Lastly, the applicant alleged a breach of Article 13 alone and in conjunction with Article 3 of the Convention due to Lithuania’s failure to grant him victim status and carry out an effective, prompt and thorough investigation into his allegations.

QUESTIONS TO THE PARTIES

Articles 3 (substantive aspect), 5 and 8 of the Convention

1.  Have the Lithuanian authorities been responsible for a violation of the applicant’s rights under Article 3 (substantive aspect), Article 5 and Article 8 of the Convention on account of:

(a)  allegedly enabling the CIA to transfer the applicant to Lithuania and to detain him on their territory secretly, torture and ill-treat him, deprive him of contact with the outside world and his family, and subject him to various forms of mental and physical abuse; and

(b)  allegedly enabling the CIA to transfer the applicant from Lithuania, in spite of a serious risk that he would be subjected to further torture, ill-treatment, unacknowledged, incommunicado detention, deprived of contact with the outside world and his family, and subjected to further mental and physical abuse in CIA custody?

In that regard, reference is made to Abu Zubaydah v. Lithuania (no. 46454/11, judgment of 31 May 2018) (§§ 641, 657 and 665).

Article 3 of the Convention (procedural aspect)

2.  Have the Lithuanian authorities complied with the standards of an “effective and thorough” investigation for the purposes of Article 3 of the Convention in respect of the applicant’s allegations of torture, ill-treatment, secret incommunicado detention and mental and physical abuse?

In that regard, reference is made to Abu Zubaydah v. Lithuania (§§ 607- 22).

Article 6 of the Convention

3.  Have the Lithuanian authorities been responsible for a violation of the applicant’s rights under Article 6 of the Convention on account of allegedly enabling the CIA to transfer the applicant from Lithuania to a jurisdiction where he faced a serious risk of receiving a flagrantly unfair trial?

In that regard, reference is made to Al Nashiri v. Romania (no. 33234/12, judgment of 31 May 2018) (§§ 719-22).

Articles 2 and 3 of the Convention and Article 1 of Protocol No. 6 to the Convention

4.  Have the Lithuanian authorities been responsible for a violation of the applicant’s rights under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 6 to the Convention on account of allegedly enabling the CIA to transfer the applicant from Lithuania to a jurisdiction where he faced a serious risk of the death penalty?

In that regard, reference is made to Al Nashiri v. Romania (§§ 728-29).

Article 13 alone and in conjunction with Article 3 of the Convention

5.  Has the applicant had an “effective remedy” for the purposes of Article 13 of the Convention in respect of the alleged violation of his rights protected by Article 3 of the Convention?

In that regard, reference is made to Abu Zubaydah v. Lithuania (§§ 676‑77).

[1] SERE stands for “Survival, Evasion, Resistance and Escape”.

[2] This information has been extracted from a ruling of the Military Commissions Trial Judiciary in Guantánamo Bay (no. AE 467CCC), issued by military judge Lanny J. Acosta, Jr. on 18 August 2023 (see paragraph 56 below).

[3] In the 2014 Senate Committee Report referred to as “Detention Site Blue”.

[4] In the present report referred to as the “2014 US Senate Committee Report”.

[5] Article 110 of the Criminal Code reads: “A person who intentionally, by carrying out or supporting the policy of the State or an organisation, attacks civilians on a large scale or in a systematic way and commits their killing or causes serious impairment to their health; inflicts on them such conditions of life as to bring about their death; engages in trafficking in human beings; commits deportation of the population; tortures, rapes, involves another in sexual slavery, forces someone to engage in prostitution, forcibly inseminates or sterilises a person; persecutes any group or community of persons for political, racial, national, ethnic, cultural, religious, sexual or other reasons prohibited under international law; detains, arrests or otherwise deprives a person of liberty, where such a deprivation of liberty is not recognised, or fails to report the fate or whereabouts of a person; or carries out the policy of apartheid, shall be punished by imprisonment for a term of five to twenty years or by life imprisonment.”