Mustafa Qadri

The following review of ‘Torture Team’ was published in The Australian newspaper on 23 August 2008:

Torture Team: Deception, Cruelty and the Compromise of Law
By Philippe Sands
Allen Lane, 272pp, $49.94
THIS timely book is a record of how one seemingly innocuous document led the US towards officially sanctioned torture.

It is a chilling portrayal of the banality with which even a highly regulated government such as that of the US can become susceptible to charges of criminality. Philippe Sands, a professor of law at University College, London, methodically documents how middle-ranking officials, under pressure to produce useful intelligence on al-Qa’ida, quietly peeled away the legal protections against torture.

In February 2002, US President George W. Bush decided to exclude al-Qa’ida 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 is an international outlaw, liable to prosecution in many parts of the world,” Sands writes.

Ten months later, then US secretary of defence Donald Rumsfeld signed the Haynes memo, so named after his chief lawyer at the Pentagon, William Haynes II. It authorised the use of three types of interrogation techniques on Mohammed al-Qahtani, an alleged al-Qa’ida operative who was captured in Afghanistan. The terse one-page document provides little detail on individual interrogation techniques (a copy of it is published at the beginning of the book). It became notorious after Rumsfeld wrote a note on the document: “I stand for eight to 10 hours a day. Why is standing limited to four hours?”

Sands dissects the memo methodically, tracing how it was developed and then interpreted. It resulted in the abrogation of principles that have guided US military interrogations since Abraham Lincoln’s instruction, in 1863, that “military necessity does not admit of cruelty”.

The document had the approval of Justice Department lawyers but did not involve consultation with the Joint Chiefs of Staff and State Department lawyers, whom the Defence Department feared would challenge its conclusions. Incredibly, a poorly drafted legal advice from a mid-ranking military lawyer, Diane Beaver, was relied on for legal justification when the memo became public knowledge.

Even more startling in the absence of proper guidance is evidence that soldiers at Guantanamo who carried out many of theinterrogations were inspired by the television program 24.

Sands highlights those officials who sanctioned torture and those who tried to prevent it.

From November 2002 onwards, the FBI continued to point out 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 the techniques were a breach of US and international law.

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, Haynes, ignored his and the FBI’s advice.

The book also cites a 2006 Defence Intelligence Authority study that concluded that “controversial interrogation techniques” had no scientific basis: some experts believed they would hamper intelligence gathering. Also in 2006, the Pentagon Inspector General ruled the interrogations potentially in breach of the Geneva Conventions.

All this points to the high degree offormal accountability within the US Government.

Some of the people described seem both victim and culprit: following orders, but also lacking the capacity to appreciate the gravity of what they were doing.

Less ambiguous is the position of lawyers who created the legal justification for torture. Near the apex of responsibility is Haynes. Sands shows how he continuously ignored warnings. Haynes seemed not to consider the effect of his memo on US policy, its international standing or, indeed, his own culpability before the law.

More shadowy is the involvement of Rumsfeld and David Addington, Vice-President Dick Cheney’s chief of staff, then his senior counsel. Sands concludes they must have been involved.

Interestingly, the book draws on an old Nuremberg case, the only international precedent, on the role of lawyers in assisting the commission of crimes. Sands speaks to the son of one of the defendants. The point, Sands writes, was not to compare the Bush administration with the Nazis but to learn from a regime that perhaps did more than any other to shape modern international criminal law.

The book details the meticulously recorded physical and psychological abuses al-Qahtani was subjected to. A clinical expert engaged bySands concludes that the evidence suggests al-Qahtani was tortured.

The book rushes a little from the time the memo was signed to the interrogations at Abu Ghraib and recent Supreme Court decisions. The relationship between Guantanamo and the Abu Ghraib scandal are also addressed only briefly. Nor is there very much discussion of extraordinary rendition, the US practice of sending suspected terrorists to countries that practise 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, most of whom were no longer employed by the US Government.

Nevertheless, it is perhaps testament to the freedoms that remain in the US that he was able to meet them so soon after the events discussed.

Mustafa Qadri is a former lawyer who practised in public international law. He provided some research for Torture Team but was not involved in its writing.