U.S. Interrogation Lawyers Could Face Overseas Criminal Charges

Brian Zabcik

The American Lawyer

05-15-2008

Philippe Sands believes former Bush administration lawyers should think twice before they travel abroad in the future. Sands says that these attorneys approved interrogation procedures for prisoners at Guantánamo Bay that may have crossed the line into torture. And while nothing might happen to them in the United States, Sands argues that these lawyers could face criminal charges in other countries for violating international laws against torture.

Sands, an English lawyer who has done some work on behalf of British detainees at Guantanamo, makes his case in his just-published book "Torture Team: Rumsfeld's Memo and the Betrayal of American Values." The memo in question, which authorized a range of aggressive interrogation techniques, was signed by former Defense secretary Donald Rumsfeld, on December 2, 2002; it was retracted two months later.

William "Jim" Haynes II, then general counsel of the U.S. Department of Defense, authored the memo. According to Sands, five other government lawyers played a key role in its development: Douglas Feith, then an undersecretary of Defense; Jay Bybee and John Yoo, two former Justice officials who coauthored a controversial August 2002 opinion on interrogation procedures; and David Addington, then counsel to Vice President Dick Cheney.

Sands takes violations of international law seriously -- the field is his specialty, both as a lawyer and an academic. A founding member of Matrix Chambers, one of London's best-known barrister firms, he also taught at New York University School of Law for 12 years. He visited America last week to talk about "Torture Team" to several audiences -- the most prominent being the House Judiciary Committee, which has been investigating the government's interrogation policy. Sands also found time to talk to AmericanLawyer.com. The following is an edited version of the interview.

This book's focus is very narrow -- it's literally just about a single memo.

A single, one-page memo that authorizes 15 techniques of interrogation and leaves open the possibility of using three others, including waterboarding. I traced back every single person who'd been involved in the decision-making process. And I interviewed, face-to-face, as many of them as I could, to get the story of where that memo had emanated from.

Is there any one individual in particular you think bears the most responsibility?

The person who comes out as the leader is David Addington. I've got a lot of people talking about his role, and his fingerprints are all over this. But Haynes was most directly involved. It was he who crafted the memorandum that was put in front of Rumsfeld.

You write that these interrogation procedures were used primarily on Mohammed al-Qahtani and a second detainee at Guantanamo.

(Note: The government claims that al-Qahtani is the "20th hijacker" and one of the masterminds of the 9-11 attacks. al-Qahtani, who has been held at Guantanamo for more than six years, was charged with murder and war crimes in February. Those charges were dismissed late last week -- a report appears in The Am Law Daily.)

I don't think they were used on anyone else. Although they are the same techniques that have been used by the CIA in extraordinary rendition proceedings, and they have also been used at Kandahar and Bagram in Afghanistan. But I haven't focused on that.

I don't believe there has been systematic torture at Guantanamo. I think Guantanamo is not a good place, I think Guantánamo is lawless in many respects, but I don't think there has been systematic torture.

Let's pull back for a moment, for people who may not be keeping up with the torture debate. Why did the administration's lawyers have to weigh in on the interrogation policy in the first place?

Because U.S. law and international law define torture reasonably clearly, and establish an unambiguous prohibition against torture from which there is no exception, under any circumstance. Faced with this, the Bush administration recognized that if it was to act lawfully, it had to find a way to get around those definitions and those constraints. The lawyers were invoked to provide that necessary service.

Do lawyers have the capability to define torture?

Not on their own. I don't think a lawyer can determine whether someone has been tortured without technical assistance. I found a clinical psychiatrist who's probably one of the leading experts in the United Kingdom on torture -- Abigail Seltzer, who's treated torture victims from Iran and Egypt. I gave her the interrogation log for al-Qahtani and I asked her, "Does this match torture?" (Note: The log describes the response of al-Qahtani to the interrogation procedures -- extreme sleep deprivation, aggravating noise, and humiliation techniques -- that were used on him during a 51-day period in late 2002 and early 2003.)

She was very careful in what she said. In her view, there isn't a medical definition of torture. Ultimately, it's a legal definition. She was looking for "indicators of distress" to determine whether al-Qahtani had suffered severe mental pain and suffering. And she concluded that he had. From a medical perspective, there were indicators of distress that would allow the conclusion to be made by another person -- a lawyer or a judge -- that he had been tortured.

A lot of sincere people disagree about what constitutes torture. Some will allow procedures that others find abhorrent. Is there an objective way to determine what crosses the line and what doesn't?

There's no more an objective way of making that determination than other determinations that judges and lawyers have to make every day: Is a defendant insane? Is he mentally fit to stand trial? We have to make judgment calls every day on these kinds of issues, and this issue is no different.

So you think there's a good case to be made that the lawyers who contributed to the Haynes memo violated international laws against torture?

There's definitely a good case to be made, and if the U.S. doesn't sort this out through some appropriate factual inquiry or other means, that will signficantly increase the likelihood of investigation and possible prosecution abroad.

I fall short of issuing a call for any sort of prosecution. I rely on a conversation that I had with a European judge and prosecutor who were pretty astonished when they saw all of my material. And they formed a pretty clear view: "We don't care if it's just the torture of one person, if that's what it was. One person is sufficient to impose upon us a responsibility to investigate."