On July 24, the European Court of Human Rights (ECHR), one of the world's preeminent human rights tribunals, delivered a landmark judgment on a case brought by Abu Zubaydah, a terrorism suspect at one time detained at a secret CIA prison in Poland. The court ruled that Poland had violated Zubaydah's rights by allowing his detention and torture.
"The court is meticulous but unequivocal. There is no legalistic parsing of the sort we have come to expect in this country. Torture it was, and torture is what the court calls it," says Joseph Margulies, visiting professor of law and government at Cornell University and counsel of record for Zubaydah, whose interrogation at the Polish facility prompted the Bush Administration to draft its infamous "torture memos."
The facts of the case, as Margulies explains, are thus: "Abu Zubaydah was brought from Thailand to Poland in December 2002, where he was held in a secret CIA prison opened with the knowledge and connivance of senior Polish officials, who knew full well the risk that Zubaydah (and the other prisoner brought there at the same time) would be tortured and detained beyond the law. He was in fact tortured there, and held illegally, until September 2003, when he was taken to another CIA black site." Zubaydah is currently incarcerated at the U.S. prison in Guantanamo Bay, where he has been held without charges since 2006.
The judgment by the ECHR is the first by any court to address the legality of Europe's role in the CIA's "black site" program, a worldwide network of secret prisons where suspects were detained and tortured. In its response to the decision, the White House refused to confirm any purported locations of black sites, insisting that the "overriding point" was that the program no longer existed.
Describing the black site program as an intricate, far-reaching web connecting Washington to many foreign capitals and intelligence services, Margulies calls the court's ruling "a rebuke of the entire criminal conspiracy that was the 'extraordinary rendition program.'" And he adds, "The inescapable logic of the decision is that all States who played a role to facilitate the CIA program, and not just those which allowed the CIA to open a site, also acted illegally and can be held to account." Though the ECHR's July ruling addresses only Poland's role in the black site program, similar cases against Romania and Lithuania are pending before the court.
Nonetheless, Margulies cautions against expecting too much too quickly from this decision. "Despite my presence in the law school, and my role as Abu Zubaydah's lawyer, I am not a big believer in the law as we commonly describe it," he says. "That is, I don't think a legal judgment, in and of itself, produces much of anything in the most contentious cases. But a legal judgment contributes to a narrative and a sense of legal consciousness in the public about what took place, whether it was right or wrong, and whether it was consistent with our professed identity. The ECHR judgment is thus part of a very long-term struggle to create and capture a narrative about who we are as a country. In that respect, it matters a great deal, but that is very different from saying it will lead to immediate, concrete results."
For the past 12 years, Margulies has been at the forefront of the effort to prevent abuses in the post-9/11 era. He was lead counsel in Rasul v. Bush (2004), which established the right of U.S. courts to determine the legality of imprisoning foreign nationals at Guantánamo, and Munaf v. Geren (2008), which established federal court jurisdiction over Americans imprisoned by the United States overseas. His most recent book, What Changed When Everything Changed: 9/11 and the Making of National Identity , was published last year by Yale University Press.
A 1982 graduate of Cornell, Margulies joins the Cornell faculty beginning in the 2014-2015 academic year, with a joint appointment in the Law School and the Government Department. He will teach one class per year at the Law School, in either civil rights or criminal justice, and also plans to be available as a mentor to students who are interested in national security and criminal law, and in the law as an instrument of progressive social change.