"Only a few pieces of paper can change the course of history. On Tuesday, 2 December 2002 Donald Rumsfeld signed one that did."
So begins the new book by Philippe Sands, a British Queen’s Counsel and professor of international law at University College London. Sands, who spoke with newmatilda.com while in Melbourne recently for the writers festival, lays out the actions of the "torture team" beginning with George W Bush’s statement on 7 February 2002 that human rights under the Geneva Conventions no longer applied to the detainees at Guantánamo. The detainees were to be treated "humanely" — which allowed plenty of room for interpretation.
This led to a request from William J Haynes II, then General Counsel of the United States Department of Defense, for "blanket approval" of 15 out of 18 coercive and abusive techniques he had recommended. Sands said this request – now known as "the Haynes memo" — was not "a usual document" as it had not gone through ‘a broader process of consultation’ and was not signed by the then chairman of the US Military’s Joint Chiefs of Staff committee, General Richard Myers. But it was approved by Rumsfeld, who added his now-famous scribble to the bottom of the page: "I stand for 8-10 hours a day. Why is standing [by prisoners]limited to four hours?"
Once the horrific pictures of Abu Ghraib hit the world stage everyone wanted to know who was to blame. Washington issued a series of memoranda in an effort to contain a scandal that was getting out of control, but instead of making the problem disappear these efforts drew people like Sands in straight away. "Those documents struck me as odd and I decided to go and meet the people who had prepared them."
Of the "torture memo" Sands says, "They abandoned all international definitions. I think it was a miscalculation, I think they just imagined that people in the political climate that then prevailed in the summer of 2004 would just accept this stuff and not look into its detail. I think that they miscalculated, and with the passage of time even more is going to come out. It’s a very curious thing they did, and I don’t know why they did it, but it seems to have backfired."
Sands believes that the move to abusive interrogation goes all the way to the top. "Since the book came out, President Bush himself has said that the techniques of interrogation were subject to decision making by him and by his principal political colleagues: Secretary of Defense, National Security Advisor, Vice President." What fascinates Sands more is how the lawyers were such a formative part of this — lawyers he describes as "highly politicised, political appointees" who overrode the advice of long-term career military lawyers.
One of those long-term career military lawyers was General Myers. He was unaware that any of the detainees at Guantánamo wouldn’t have any rights under Geneva. "Perhaps even more surprisingly," recalls Sands, "he seemed to be under the impression that the techniques Donald Rumsfeld authorised for use in December 2002 had come out of existing US military manuals — and that was not true. As he and I went through the list of techniques, we saw that he was under a serious misapprehension … I was surprised that the most powerful military person in the United States could have been so unsure of what had actually been decided. It was a rather shocking moment I’ve got to say."
Also shocking are the details in Torture Team of the many cruel lowlights from the interrogation logs of detainee 063, Mohammed al-Kahtani. Here we see how for 54 days the coercive, abusive techniques were put into practice. He was suspected of being an accomplice in 9/11, a detainee who was resistant to the usual array of army techniques. Detainee 063 became the "test case", subjected to sleep deprivation, attack dogs, intimidation, humiliating interrogations by female staff, physical assaults, simulated drowning, stress positions and so on. Sands writes, "The interrogators told Detainee 063 that the ‘onion strategy’ would be applied to him. He would be stripped of all control of his life, layer by layer."
Mohammed al-Kahtani’s reactions and expressions of distress are recorded in the logs: "Crying and praying. Began to cry. Claimed to have been pressured into making a confession. Falling asleep. Very uncomfortable. On the verge of breaking. Angry. Detainee struggled." After 54 days, the torture stopped, following the attempt by Alberto Mora, General Counsel of the Navy, to get Rumsfeld’s authorisation rescinded.
This is a book that asks questions as much as it provides answers. There are many participants who come across as the bad guys – some rightly so – but Sands certainly does not think Washington was united behind the move to use the more aggressive techniques. Sands has particular sympathy for Staff Judge Advocate Diane Beaver, a lawyer with no background in international law thrown in by the Pentagon lions as a scapegoat. It’s easy to feel sympathy for her — yet feel at the same time that she still should have stood up for what was right.
Sands is certain in his belief that torture does not produce reliable information. While conducting interviews for the book, he was introduced to the popular television series 24, and its protagonist Jack Bauer, the heroic torturer. Sands found that Jack Bauer has many sympathisers at Guantánamo and is obviously concerned. "It’s plain that 24 influenced the environment," says Sands, "in the sense that it created a context in which people believed it worked, that it produced meaningful, reliable and useful information."
Life imitating art imitating crime.
In the end The US Supreme Court overturned President Bush’s decision that Geneva did not apply to Guantánamo. With Hamden vs Rumsfeld in June 2006, the Supreme Court found that the Geneva Conventions did apply, raising the possibility of war crimes prosecutions over the policy’s obvious violations of Common Article 3 of the Convention. As he makes such strong, cogent accusations of some of the world’s most powerful people, is Sands at all worried about his own position?
"I’m not. I have some strong and powerful supporters, including, surprisingly, the US Military, who of course were very strongly opposed to this at the time, and are as appalled as anyone else by what has happened — and are pleased when others have come to rescue their reputation. The US Military has long objected to the use of abusive interrogation and this was a blip … contrary to a long-established tradition."
"But," he stresses, "some of the individuals involved — and that could include the lawyers — will find themselves exposed if they travel internationally, because the crime of torture is a universal crime. Any state in the world is free to investigate and as necessary prosecute."
This book is a thriller, a page turner. It has achieved some very real results and there may be more to come. "Since the book came out there’s been a series of hearings before various Congressional Committees: The House Judiciary Committee, the Senate Judiciary Committee — and the issue of war crimes and what needs to happen next is firmly on the agenda. I mean, different countries have different ways of dealing with this.
"My firm hope is the United States puts its own house in order."
Philippe Sands’s Torture Team: Deception, Cruelty and the Compromise of Law is published by Penguin.
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