The UK bar­ris­ter try­ing to put Rums­feld in the dock

Philippe Sands QC has per­suaded a US ju­di­cial com­mit­tee to in­ves­ti­gate the Bush ad­min­is­tra­tion for war crimes. He talks to Ben Sil­ver­stone

The Jewish Chronicle - - Features -

IN THE years fol­low­ing 9/11, the gov­ern­ment lawyer has gone miss­ing. While myr­iad le­gal opin­ions are prof­fered by politi­cians to counter ac­cu­sa­tions of war crimes or hu­man-rights abuses, when it comes to ap­por­tion­ing moral or le­gal blame, the lawyer, Ma­cav­ity-like, is just not there. Per­haps it takes a lawyer to catch a lawyer. In his new book, Tor­ture Team, Philippe Sands, a QC and pro­fes­sor of law at Univer­sity Col­lege Lon­don, has tracked down the high-rank­ing Amer­i­can gov­ern­ment at­tor­neys — the so­called “tor­ture team” — who ad­vised the then US Sec­re­tary of Defence, Don­ald Rums­feld, in his au­tho­ri­sa­tion of the in­fa­mous “en­hanced in­ter­ro­ga­tion tech­niques” at Guan­tanamo Bay.

Since re­nounced by the Bush White House, th­ese meth­ods were em­ployed with par­tic­u­lar bru­tal­ity against Mo­hammed al-Qah­tani, a Guan­tanamo detainee and sus­pected high-rank­ing al Qaida mem­ber. On the ba­sis of in­ter­views with top le­gal of­fi­cials, Sands has as­sem­bled de­tailed ev­i­dence to point to the in­di­vid­ual re­spon­si­bil­ity within the “tor­ture team” for pos­si­ble war crimes in con­nec­tion with th­ese in­ter­ro­ga­tions.

So com­pelling is Sands’s ac­count that, af­ter pub­li­ca­tion last month of a Van­ity Fair mag­a­zine ar­ti­cle based on the book, the Ju­di­cial Com­mit­tee of the US House of Rep­re­sen­ta­tives has taken no­tice. This is the body re­spon­si­ble for the im­peach­ment of fed­eral of­fi­cials — it acted against Pres­i­dent Richard Nixon in 1974 over Water­gate, and against Pres­i­dent Bill Clin­ton 24 years later.

As Sands says, the re­sponse of the com­mit­tee could have ma­jor im­pli­ca­tions for the in­di­vid­u­als dis­cussed in Tor­ture Team. “The com­mit­tee is invit­ing all the char­ac­ters in the up­per ech­e­lons of the story I tell to ap­pear be­fore them in their in­ves­ti­ga­tions into tor­ture and in­ter­na­tional law. The House is fo­cus­ing on ques­tions of cover-up and per­jury. Did the ad­min­is­tra­tion lie? Did it mis­lead? Did it push for ag­gres­sive in­ter­ro­ga­tion tech­niques and then present a story in the con­text of Abu Ghraib which claimed that the re­quest trick­led up from the bot­tom?

“I will be a prin­ci­pal wit­ness on May 6 — tes­ti­fy­ing with me is a guy called Larry Wilk­er­son who was [for­mer Sec­re­tary of State] Colin Pow­ell’s chief of staff through­out this pe­riod. He has gone on the record to say that war crimes were com­mit­ted and that some of th­ese peo­ple must bear re­spon­si­bil­ity.”

Sands him­self is cagier on the ques­tion of pros­e­cu­tion, ac­knowl­edg­ing that a re­cent im­mu­nity law passed in the US cur­rently saves those in­volved from crim­i­nal re­spon­si­bil­ity at home. But, he notes: “If one of the in­ci­den­tal con­se­quences of the book is that in­di­vid­u­als like [for­mer Gen­eral Coun­sel of the De­part­ment of Defence] Jim Haynes no longer feel able to travel out­side the United States, I won’t be un­happy about that.”

In­deed, he has passed on doc­u­ments and tes­ti­mony re­lat­ing to the al­le­ga­tions in Tor­ture Team to a se­nior Euro­pean pros­e­cu­tor and judge who have sug­gested that there might be grounds for prose­cu­tions out­side Amer­ica.

But Sands de­nies that build­ing a case against pre-se­lected in­di­vid­u­als was his plan. “Gov­ern­ments don’t take de­ci­sions; peo­ple do. What I wanted was to get into the minu­tiae of this nar­ra­tive, to iden­tify the peo­ple in­volved and con­struct the whole story. So I fo­cused on a sin­gle memo, the one signed by Don­ald Rums­feld on De­cem­ber 2 2002, to au­tho­rise th­ese new in­ter­ro­ga­tion tech­niques, and fol­lowed the track of de­ci­sion-mak­ing lead­ing up to it.”

And it is an in­trigu­ing trail. Link­ing the army, the FBI and sev­eral de­part­ments of state, the story is one of ri­valry, scape­goat­ing and buck-pass­ing, fu­elled by over­pow­er­ing po­lit­i­cal de­mands and the am­bi­tions of in­di­vid­u­als who sub­verted pol­icy-mak­ing pro­ce­dures for their own ends. It was a process that at times left Sands “in­censed” at the cruel tech­niques which may well have elicited no use­ful intelligence at all — and with the “ide­ol­ogy and in­com­pe­tence” of the mem­bers of the le­gal hi­er­ar­chy.

“Th­ese are ide­o­log­i­cal peo­ple who saw 9/11 as a chance to do away with the in­ter­na­tional le­gal or­der. They were also se­ri­ally in­ept — Doug Feith, head of pol­icy at the Pen­tagon, sim­ply never turned his mind to the con­se­quences for Amer­i­can sol­diers of dis­miss­ing th­ese in­ter­na­tional rules.”

Given Sands’s ca­reer­long com­mit­ment to in­ter­na­tional law — in­volve­ment in the Pinochet case as a bar­ris­ter, con­dem­na­tion of Amer­i­can breaches of in­ter­na­tional law in his ear­lier book Lawless World — you can­not help won­der­ing why many of the in­ter­vie­wees agreed to meet him. Sands agrees. “It’s amaz­ing. Many of th­ese peo­ple had never talked to any­one be­fore. I re­ally ap­pre­ci­ated that they met with me — they didn’t need to. I think it’s be­cause I’m not an Amer­i­can and I’m not a jour­nal­ist. Per­haps the QC thing pro­vided an in­creased level of com­fort.”

Tor­ture Team throws up a pi­quant irony. That a sin­gle lawyer, armed only with an English ac­cent and his pro­fes­sional ac­cred­i­ta­tion, may have ex­tracted more valu­able in­for­ma­tion than those Guan­tanamo in­ter­roga­tors whose prac­tices have left such a heavy moral legacy. The Tor­ture Team is pub­lished by Pen­guin, priced £20


Pres­i­dent Bush’s for­mer Sec­re­tary of Defence, Don­ald Rums­feld, is tar­geted by Philippe Sands’s in­ves­ti­ga­tion

Philippe Sands: a prin­ci­pal wit­ness

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