Mustafa Qadri

The following review of ‘Torture Team’ by Philippe Sands QC appeared in Dawn Newspaper (Pakistan) on 12 October 2008:

Cover Story: Ways and means

Reviewed by Mustafa Qadri
In February 2002 President Bush decided to exclude Al Qaeda and Taliban detainees from the protection of the Geneva Conventions, the international laws regulating war. This included Common Article 3 which prohibits, without exception, torture and humiliating and degrading treatment. ‘The person who violates Common Article 3’, writes Sands, ‘is an international outlaw, liable to prosecution in many parts of the world.’

10 months later when US Secretary of Defense Donald Rumsfeld signed the ‘Haynes memo’, so named after his chief lawyer at the Pentagon Williams Haynes III. The document authorised the use of three different types of interrogation techniques on Mohammed Al-Qahtani, an alleged Al Qaeda operative who was captured in Afghanistan.

The terse one page document provides little detail on individual interrogation techniques (a copy of it is featured at the beginning of the book). It has since entered notoriety after Rumsfeld, writing on the document, remarked ‘I stand for 8-10 hours a day. Why is standing limited to 4 hours?’ Sands methodically dissects the memo, recording the history of how it was developed and interpreted once signed.

The memo resulted in the abrogation of principles guiding US military interrogations dating back to President Lincoln’s 1863 instruction that ‘military necessity does not admit of cruelty’.

Significantly, the document had the approval of Justice Department lawyers but did not involve consultation with the Joint Chiefs of Staff and State Department lawyers.

The Defense Department feared they would challenge its conclusions. Incredibly, a poorly drafted legal advice from a mid-ranking military lawyer, Diane Beaver, was relied upon when the Haynes Memo became public knowledge. Even more startling, in the absence of proper guidance, soldiers at Guantanamo tasked with carrying out much of the interrogations were inspired by the television programme 24.

This is a carefully written book that serves not only to highlight those officials who sanctioned torture but those who tried to prevent it. From November 2002 onwards, the FBI had concluded that 10 of the 18 techniques authorised by the Haynes memo violated the US torture statute.

Alberto Mora, General Counsel to the Navy at the time, also realised that the techniques were a breach of US and international law. He warned that Rumsfeld’s handwritten note on the memo, even if flippant, could be construed as giving ‘a wink and a nod’ to more aggressive interrogation methods. Mora even drafted an advice warning that the Haynes memo ‘probably will cause significant harm to our national legal, political, military and diplomatic interests.’ But his boss, William Haynes, ignored his and the FBI’s advice.

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This is a carefully written book that serves not only to highlight those officials who sanctioned torture but those who tried to prevent it. From November 2002 onwards, the FBI had concluded that 10 of the 18 techniques authorised by the Haynes memo violated the US torture statute. Alberto Mora, General Counsel to the Navy at the time, also realised that the techniques were a breach of US and international law.

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Sands also cites a 2006 Defence Intelligence Authority study which concluded that ‘controversial interrogation techniques’ had no scientific basis. Some experts involved in the study believed such techniques would actually hamper intelligence gathering. In short, even US military experts had concluded that torture would not work. Also in 2006, the Pentagon Inspector General ruled the aggressive interrogations potentially in breach of the Geneva Conventions. All these instances point to the high degree of formal accountability mechanisms within the US government.

Some of the personalities detailed in the book, like former military head of interrogations at Guantanamo General Mike Dunlavey, former Chairman of the Joint Chiefs of Staff General Richard Myers and military lawyer Diane Beaver come across as both victims and culprits.

They followed their orders and yet somehow lacked the capacity to fully appreciate the gravity of what they were getting involved in.

Less ambiguous is the culpability of the lawyers who created the legal justification for torture. Near the apex of responsibility is William Haynes. Sands documents how he continuously ignored the warning signals that something was very wrong.

Haynes seemed to spend little time considering the impact of his memo on US policy, its international standing, or, indeed, his own culpability before a court of law. So too did Jay Bybee and John Yoo, two senior Department of Justice lawyers who advised in favour of the aggressive interrogation techniques.

The Bush administration maintains, officially at least, that their advices were never adopted. More in the shadows are Rumsfeld himself and David Addington, Vice-President Dick Cheney’s Chief of Staff who was then his senior counsel. Sands concludes that they must have been involved.

Interestingly, the book draws upon an old Nuremberg case, the only international precedent of its kind, on the role of lawyers in assisting the commission of crimes. Sands even speaks to the son of one of the defendants in this case. The issue here, as Sands points out, is not to compare the Bush administration to the Nazis but rather to learn from the regime which perhaps did more than any other to shape modern international criminal law.

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Interestingly, the book draws upon an old Nuremberg case, the only international precedent of its kind, on the role of lawyers in assisting the commission of crimes. Sands even spoke to the son of one of the defendants in this case. The issue here, as Sands points out, is not to compare the Bush administration to the Nazis but rather to learn from the regime which perhaps did more than any other to shape modern international criminal law.

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The book details the meticulously recorded physical and psychological abuses Al-Qhatani was subjected to. Physical abuse ranged from assault to barking dogs and the use of waterboarding, the passing of water over a detainees face, often while covered by a damp cloth, to simulate the sensations of death by drowning.

Al-Qahtani was also shown images calculated to offend him, such as women in bikinis and victims of the September 11 attacks. There is also a useful chapter in which a clinical expert engaged by Sands concludes that the evidence suggests Al-Qahtani was tortured.

The book does rush a little from the period when the memo was signed to the past two years. The relationship between interrogations at Guantanamo and the Abu Ghraib scandal are also only briefly addressed. Nor is there very much discussion of extraordinary rendition, the US practice of sending suspected terrorists to countries that practice torture. But perhaps that is a story for another book.

The most valuable aspect of Torture Team is that it humanises the people at the centre of the controversy. Sands had the good fortune and tenacity to interview many of the senior officials involved in the saga.

It may have helped that most are no longer employed by the US government. Nevertheless, it is perhaps a testament to the freedoms that still remain in the US that he was able to meet them so soon after the events discussed in the book.

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Torture Team: Deception, cruelty and the compromise of law
By Philippe Sands
Allen Lane, UK
ISBN 1846140080
336pp. £20