The European Court of Human Rights (ECHR) is hearing a legal action brought by two senior al-Qaeda operatives: Abu Zubaydah and Abd al-Rahim al-Nashiri. The terrorists are seeking damages from the Polish government for its purported role in supporting the CIA’s “black site” program.
Let’s be clear: This is the European justice system at its most insane. That’s saying something. While the ECHR is renowned for its often ludicrous judgments, this hearing is quite extraordinary. For a start, the court’s jurisdiction is precarious at best — both Zubaydah and al-Nashiri remain imprisoned at Guantanamo Bay and under U.S. military authority. Neither the U.S. nor the Polish government has admitted that either man was ever held in Poland. The notion of legal standing has become highly flexible under European law.
But the main point is far simpler and far more troublesome. By granting these men the legitimacy of a civilian court, the ECHR is providing a one-sided outlet for al-Qaeda propaganda. It’s helping obfuscate the terrible crimes of two individuals. Consider the facts.
As former head of the CIA National Clandestine Service Jose Rodriguez outlines in his book, Abu Zubaydah was a key member of al-Qaeda core’s old guard. Zubaydah’s primary role was network facilitation — knotting together al-Qaeda’s operational activities around the world. Zubaydah was intimately involved in the 2000 Millennium Plot, which, had it not been prevented, would have killed hundreds of civilians in Jordan and the United States as well as military personnel in Yemen. Rodriguez notes that Zubaydah’s capture was a crucial strategic victory, allowing for a unique insight into al-Qaeda’s “organizational plumbing.”
Al-Nashiri’s record is equally unambiguous. As the ringleader behind the 2000 bombing of the USS Cole, he is directly responsible for at least 17 deaths. He was in the final stages of planning another major attack just before his capture.
What’s so concerning is that the ECHR seems to care little about these records of violence. Perhaps even more important, the ECHR doesn’t seem to realize that both individuals have reveled in their attempts to manipulate Western intelligence services. Zubaydah’s diaries are well known (though often used to suggest, misleadingly, that he was irrelevant to al-Qaeda), and although al-Nashiri is widely regarded as a relative simpleton, his actions strongly suggest a psychopathic character. Rodriguez notes, for example, that al-Nashiri took particular pleasure in decorating his black-site cell with nasal mucus. At the same time, what is striking even for an al-Qaeda operative, al-Nashiri showed little concern for those who had died under his command.
These, then, are the men to whom the ECHR is granting judicial review. The lunacy is all too abundant. A court that was set up to preserve rights of the innocent is now being used to serve the interests of a movement that regards the West with a pathological hatred. Sadly (as I’ve argued here, here, and here), European counterterrorism efforts are often hampered by gross delusion. In 2013, stumping for terrorists has become the fashionable cause of European high society. This is a dynamic that’s at once pathetic, profoundly counterproductive, and totally absurd.
What happened to these two men happened for a reason. Don’t get me wrong, I don’t believe that waterboarding should be lawfully entered into statute. But I do support its use in critical-response situations. In the specific cases in question, the use of waterboarding was both necessary and procedurally correct. It’s crucial to remember the context in which the interrogations of these two men took place. In 2002, many believed that further “spectacular” attacks were imminent. Indeed, for a brief time in late 2001, the U.S. government genuinely feared that al-Qaeda operatives had arrived in New York City with a nuclear weapon. Think about that for a second. Facing such a threat, what mechanism of interrogation would you think too extreme? What would be a step too far? In 2002, justified fear and a well-understood condition of absent knowledge forced U.S. intelligence officers into an impossible situation. Hindsight and lawsuits might suit armchair statesmen, but in the end the moral debate is pretty simple. In capturing and interrogating Abu Zubaydah and Abd al-Rahim al-Nashiri, the U.S. intelligence community was able to develop and effect counterterrorism policies measured to a very real threat. In the actions that were taken, many lives were saved.
By fighting these truths, the ECHR is rendering itself a dangerous clown.
— Tom Rogan is a blogger based in Washington, D.C., and a contributor to TheWeek.com and the Guardian.