Mustafa Qadri

The following interview of Philippe Sands QC regarding his book ‘Torture Team’ appeared in Dawn newspaper (Pakistan) on 12 October 2008:

Cover Story: The torturing truth

‘Philippe Sands’ timely book’, says Mustafa Qadri, ‘is in essence a record of how one seemingly innocuous document led the United States towards officially-sanctioned torture. Torture Team is a chilling portrayal of the banality with which even a highly regulated government like the United States can become susceptible to criminality. The author has methodically documented how middle-ranking officials, under pressure to produce actionable intelligence on Al Qaeda, quietly peeled away the legal protections against torture.’ Sands recently spoke about his book, the Geneva Conventions and the rule of law…

Mustafa Qadri: When did you decide to write Torture Team and how did you approach the task?

Philippe Sands: In the spring of 2005 my book Lawless World was published, telling the story of how Bush and Blair were subverting the system of international rules that was put in place after the Second World War. I wanted to home in on a more specific story, and was intrigued by the memo that Donald Rumsfeld signed in December 2002, authorising new techniques of interrogation that plainly violated the Geneva Conventions.

And then I happened to see an old, Oscar-winning movie called Judgment at Nuremberg that told a story about the criminal responsibility for lawyers. Spencer Tracey plays the judge, and gives a powerful closing speech, right at the end of the film. I suppose you could say he persuaded me to write this book.

MQ: You are one of the foremost British practitioners in international law and you were involved in the prosecution of General Pinochet of Chile for the crime of torture. How did your experiences as a lawyer influence your decision to write the book?

PS: One of the main lessons I have learnt as a courtroom lawyer is that things are not always as they seem. Every document tells a story, although not necessarily the one its authors intended. To get to truth you need to hear from the people most directly involved. That is what I decided to do, I hope with an open mind. I tried to piece together what really happened — as opposed to what the administration wanted us to believe had happened — from the individual stories I heard.

MQ: You claim that Rumsfeld, Haynes (his senior lawyer at the Pentagon) and many others are liable to prosecution for torture. That’s a very big claim. Did you expect to reach this conclusion? What were the other surprises, for you personally, that came to light while writing the book?

PS: The interrogation of Mohammed Al-Qahtani — also known as Guantanamo detainee 063 — plainly violated Common Article 3 of the Geneva Conventions, which prohibits cruelty, outrages against human dignity and torture. On the administration’s claim that the US is at war and so subject to international humanitarian law, war crimes were committed.

The main question is: who was responsible? You then follow the paper trail and identify those who were mainly responsible. Is it the soldier who carried out the interrogation, or the lawyer who recommended the techniques, or the Secretary of Defense who authorised the new techniques, or someone else, or all of the above? At the end of the day, in my view, real responsibility lies with those at the top of the food chain. The biggest surprise? That ordinary, decent, lawyers trained at Harvard Law School and other leading US law schools could ever have signed off on such atrocities. That is also a grave disappointment.

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‘The British authorised similar techniques of interrogation — known as the ‘five techniques’ — for a short period in the early 1970s. Aside from the patent illegality, they soon learnt that these techniques didn’t produce useful or reliable information. That abuse undermined morale and authority. That the abuse and cruelty became a recruiting tool for the IRA. And that the use of these new techniques was extending the conflict.’

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MQ: In the book you mention the British experience with respect to torture. Basically it was tried on the IRA and it didn’t work. Could you explain why this conclusion was reached?

PS: The British authorised similar techniques of interrogation — known as the ‘five techniques’ — for a short period in the early 1970s. Aside from the patent illegality, they soon learnt that these techniques didn’t produce useful or reliable information.

That abuse undermined morale and authority. That the abuse and cruelty became recruiting tools for the IRA. And that the use of these new techniques was extending the conflict.

MQ: What are your thoughts on the ticking time-bomb scenario?

PS: It’s not immediately apparent to me that such a scenario exists. I oppose torture in all circumstances, on legal, moral, political and utilitarian grounds.

MQ: Lawyers are meant to be independent officers of the court. Do you think this book and your previous popular work undermines your role as a professional advocate?

PS: I wear two hats: academic and practicing lawyer. Sometimes the two roles might come into conflict, and certainly my writings mean that I would be precluded from sitting as a judge in cases in which I have expressed clear views! But I continue to act as counsel in cases in which allegation of torture have been made, for example the case of Binyam Mohammed, the British resident detained at Guantanamo who alleges that he was transferred from Pakistan to a third country where he was tortured. It has never been suggested that my writings would preclude me from acting in such cases.

MQ: How on earth did you manage to interview so many of the people directly involved in the Haynes memo and interrogations at Guantanamo? Who was the most challenging interviewee?

PS: Good question! I was probably perceived as a foreigner and a legal academic, so not seen as too threatening. Some have suggested that the British accent helped! Either way, I remain grateful to all the people I met with for telling me their stories, a mark of the openness of American society for which I have great admiration.

The most challenging? Jim Haynes was the most resistant, although eventually he invited me to meet with him in the Pentagon on two occasions. In a curious way the conversation with Diane Beaver may have been the most challenging, in the sense that I started with one view of her role and ended with another.

MQ: Here in Pakistan we have several petitions before the Supreme Court involving disappeared persons. According to the Human Rights Commission of Pakistan around 1000 people are missing. Many are believed to have been tortured either in Pakistani or US custody. Some may have been taken to Guantanamo. Do you think the Haynes memo gave the green light for renditions such as these?

PS: The memo I write about in Torture Team was limited to the use of interrogation techniques by the military at Guantanamo, for a short period from the end of November 2002 to mid-January 2003.

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‘The key to avoiding this [torture] from happening again in the future is making sure that those with real knowledge and experience are fully involved in the decision-making processes. And various important decisions of the US Supreme Court remind us of the vital role that is played by an independent judiciary, a point which will be widely understood in Pakistan.’

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The renditions were usually subject to techniques approved for use by the CIA, rather than the military. Time will tell what is the precise relationship between the techniques and what involvement, if any, Jim Haynes had in the rendition process.

MQ: Is there a message for people like former President Pervez Musharraf and former PM Shaukat Aziz in your book? Could they be exposed to torture suits abroad?

PS: There may be, depending on the facts, of course, which I do not master. Article 4 of the Torture Convention prohibits complicity in torture, which could include direct or indirect participation in any renditions, and even recklessly turning a blind eye. I wouldn’t want to speculate without knowing specific facts.

MQ: One of the surprises of your books is how many institutional checks and balances, while ignored by the leadership, actually warned against authorising torture at Guantanamo.

For example the FBI independently cautioned against the harsh interrogations authorised by Rumsfeld in the Haynes memo. How can these checks and balances be strengthened to prevent repetition of what happened under the Bush administration?

PS: It is very important to understand that the abuse started as a result of the actions of a small number of high-level political appointees. As far as I can tell the vast majority of career military and civil servants were opposed to abuse, especially at the senior levels. That is, presumably, why they were by-passed in the decision-making processes.

The key to avoiding this from happening again in the future is making sure that those with real knowledge and experience are fully involved in the decision-making processes. And various important decisions of the US Supreme Court remind us of the vital role that is played by an independent judiciary, a point which will be widely understood in Pakistan.

MQ: Can we expect to see George Bush and Donald Rumsfeld being prosecuted for torture?

PS: Who knows! Certainly Mr Pinochet was taken by surprise whilst on foreign travels, many years after he left office. I recently raised the possibility with former US president Jimmy Carter, who came surprisingly close to recognising that the current US President may well face future difficulties.

MQ: The removal of Pakistan’s Chief Justice of the Supreme Court was arguably the catalyst for the demise of Pakistan’s most recent dictator, Pervez Musharraf. In the US we saw that the Supreme Court, despite a mainly conservative bench, was compelled to decide that the Geneva Conventions did apply to Guantanamo inmates. Is there a message here about the rule of law?

PS: I hope so. From my own friends and colleagues in Pakistan I know there exists a widespread and passionate commitment to the rule of law in Pakistan, as a bulwark against governmental excess and abuse.

In London we have observed with admiration the actions of so many members of Pakistan’s community of lawyers and judges, and we stand in the strongest solidarity. Any attack on the judiciary and on lawyers is an affront to core values and the rule of law. That is one of the key arguments of Torture Team.