The principle of criminal law in every civilized society has this in common.
Any person who sways another to commit murder, any person who furnishes the lethal weapon for the purpose of the crime, any person who is an accessory to the crime, is guilty.
All right, folks, that's Spencer Tracy from the movie Judgment at Nuremberg on the question of whether just following orders is a good enough excuse of whether just doing my job is a way to get away with war crimes.
It turns out the standard set then was no, but the argument then was the same as the argument now for the other side, and that is necessity.
We have on the phone from England, Philip Sands.
He's a lawyer, a professor of law, and director of the Center of International Courts and Tribunals at the University College in London.
He's the author of Lawless World, America and the Breaking of Global Rules and Torture Team, Rumsfeld's Memo and Betrayal of American Values.
You can also read a recent article he wrote in Vanity Fair called The Green Light.
Welcome to the show, Philip.
Terrific to be with you, Scott.
It's very good to have you on the show here today.
And while this is an incredibly humongous subject, there's a lot to be covered here, and I know I don't have you for that much time.
So I guess I'd just like to start with your interview with Douglas Fyfe.
Many people are familiar with Douglas Fyfe.
He was the Deputy Assistant Secretary of Defense for Policy and the head of the Office of Special Plans and so forth.
The story of your interview with Fyfe, really, you point out that the trail of torture really traces back to Douglas Fyfe's argument about the importance of preserving the Geneva Conventions.
How exactly is that?
Well, it was a curious interview.
I was very grateful to him for spending time with me.
He, of course, didn't have to spend time with me, and I appreciated that.
And we talked about a range of issues.
But I was particularly interested in his role in the decision that the president took on the 7th of February, 2002, to decide that none of the detainees at Guantanamo had any right at all under the Geneva Conventions.
And he described to me with some pride his role in that decision, which he considered to be, bizarrely enough, the application of the Geneva Convention in a curious form of logic that I never quite got my mind around.
But the effect of the decision, of course, was that there were no rules left under Geneva which constrained the interrogation of detainees.
And I put it to him that didn't that mean that all constraints were removed?
And his response was very interesting.
It said precisely, and then he added, that was the point.
And, of course, that is rather different from what the administration has said publicly.
The official story is they were simply applying the law.
And, in fact, it seems pretty clear that from on high came the decision to get rid of Geneva precisely so that a move to cruelty and aggression could be implemented.
Yeah, it's interesting that he comes right out and he admits.
He says, absolutely, that was the point.
While, at the same time, he's arguing that the reason that they decided that the Geneva Conventions did not protect members of the Taliban in Afghanistan or members of Al-Qaeda captured there, or bought there, was in order to protect the sanctity of Geneva.
You can't just go applying it willy-nilly to everybody.
Right, but what he forgets, of course, is that he may be right, in part, in relation to prisoner of war status, which is granted to combatants who follow the rules.
If you don't follow the rules, you can't claim prisoner of war status for unsimplifying, but that's the general proposition.
However, the Geneva Conventions have a very famous common Article 3, as it's called, because it's common to all four Geneva Conventions.
And that says, irrespective of prisoner of war status or other things, every person at any time in conflicts covered by Geneva are entitled to certain minimum standards of protection.
And that includes no abuse, no outrages against human dignity, and no torture.
And that decision by the President even set aside Common Article 3.
Of course, four years later, in the very famous judgment of Hamdan versus Rumsfeld, a significant majority of the Supreme Court said that was wrong.
And Common Article 3 did apply.
And Justice Kennedy's separate opinion is particularly interesting, because he invokes the specter of war crimes.
Because obviously, the consequence of setting aside Geneva as a matter of domestic law is that if you interrogate abusively, you have violated Common Article 3, and that gives rise to war crimes allegations.
Now, in the Hamdan case, was the ruling that it doesn't matter what the Taliban signature says, it's our signature to Geneva that says that we must treat anybody that we capture this way?
Well, the significance of Hamdan, I mean, Hamdan wasn't concerned with torture or interrogation.
It was concerned with a different issue, namely military commissions.
But the question of the military commissions and how they function in accordance with due process, etc, is also governed by Common Article 3.
So the Supreme Court had to take a decision on whether or not Common Article 3 applied as a matter of US constitutional law.
And they decided that it did apply.
And it applied because this was a conflict, not of an international character within the meaning of international law.
And therefore, any person who was in detention was entitled to the protections of Common Article 3.
And so they didn't need to decide the question of whether or not these individuals were entitled to prisoner of war status.
That's a different issue.
But rather, were they entitled to the minimum standards of protection in Common Article 3?
Supreme Court majority, by a large majority, said yes, they were.
And from that consequence flows also the conclusion of violations of Common Article 3 and therefore possibility of war crimes.
Right.
And see, this is the thing, too.
It's not just the Geneva Conventions.
There's actually American federal criminal statutes that enforce all the Geneva Conventions, right?
They do, but only so long as Geneva applies.
Of course, if the president adopts, as he did, a decision setting aside Geneva, including, as he did, Common Article 3, then the effort is effectively to set aside federal law.
And you've got the added problem.
These people are being held outside the territory of the United States, Guantanamo, which is on Cuba.
But I mean, you've only got to pause and ask yourself for a second, what's the consequence of the president's decision?
Well, look, I mean, can you imagine a situation in which American military personnel are held in a conflict and the president of the country in which they're held adopts a ruling that's the same as that adopted by President Bush and says, look, we've decided unilaterally Common Article 3 doesn't apply.
We're going to interrogate you abusively.
You can imagine the reaction.
The United States, quite rightly, would heap down on such a decision.
So I mean, it's just it's very weird.
It's as though they never really thought through and asked themselves the question, what's the consequence of doing this for our own military personnel?
And the consequences are potentially very serious, which is why the U.S. military lawyers and then serving officers and generals, I mean, right up to the highest levels, were strongly opposed to this.
Well, a common theme throughout the book, Torture Team, is that you're told over and over.
Well, it seems to reveal that they really didn't think through.
They say you have to understand, Philip, the circumstances at the time.
We were so scared there was going to be another attack.
Don't you understand?
These people want to wipe us off the face of the earth, destroy our entire way of life.
So that was a common theme.
And frankly, it was a theme that I was sensitive to because I happened to be in New York on September 11th.
I was teaching at NYU.
My wife is a New Yorker and we spent a lot of time there.
And it was, frankly, a deeply, deeply shocking day.
I saw the whole thing happen.
I was there a mile from the World Trade Center.
So I'm really acutely aware of what a terrible thing happened.
But I'm also acutely aware, you know, that in many countries around the world, many terrible things happen.
And you've got to keep your eye on the bigger picture.
And one of the things that was really surprising, and it's important that I leave your listeners with this view, is I've steered clear of getting involved in nitty-gritty legal detail.
What I really wanted to do, and you've reflected this in your question, is get to understand the people who took the decision.
So I went around America tracking them down.
I had a list of people who'd been involved in the decision-making process.
One by one, I tracked them down.
I met with everybody from the people on the ground at Guantanamo right up to the chairman of the Joint Chiefs of Staff, General Myers, right up to Mr. Rumsfeld's lawyer, who played a deep role in all of this.
And I share with the reader, you know, the stories from these rather remarkable characters.
And they're very different characters.
They occupy different positions in life, and they have different backgrounds.
And as you say, there were certain common themes.
There are villains in this story, and there are heroes.
And one of the things that was, in a sense, very uplifting, because I tend to be an optimistic person, was that there were some remarkable individuals on the ground at Guantanamo who tried to stop this from happening.
And eventually, their views prevailed.
They didn't prevail initially, and terrible abuses were perpetrated on this one detainee.
And on the military side of things, the right thing came out.
Although, most interestingly, having told us for the last five years of the detainee on which this was done, detainee 063, who's called Mohammed al-Qahtani, who's thought by some to be the 20th hijacker, two days ago, the Pentagon announced that they were dropping the charges against him.
Right.
And that was, frankly, as one friend of mine put it, who writes for The Washington Post, a jaw-dropping announcement.
Absolutely astonishing.
Well, did they say why they were dropping the charges?
They gave no reason.
It is really incredible.
If you remember, just three months ago, on February the 11th of this year, the Pentagon announced a list of six individuals, including al-Qahtani, who were being charged with war crimes and terrorism and murder, a really very terrible list of crimes, and for whom the death penalty would be sought.
And two days ago, the prosecuting authority signed the charges for five of the six, but left al-Qahtani off the list without a reason being given.
Now, what I'm told is that a view was taken that, essentially, this man is no longer prosecutable because of what happened to him.
And in particular, there's been a huge amount of attention now given to his case.
The House of Representatives Judiciary Committee is having hearings essentially focusing on his treatment and his case and the role of the senior administration lawyers in the development of his interrogation plan.
My article came out in Vanity Fair.
There's been a huge amount of publicity on that.
The book is out.
And I think they just have taken the view that, right now at least, any trial of Mohammed al-Qahtani would essentially become a trial of the individuals who authorized his treatment.
And I guess if I understand right, they don't really have anything on this guy other than he tried to enter the United States in August before the September 11th attack, and then later he was scooped up in Afghanistan somewhere.
It's astonishing.
I mean, I set out, you know, right at the end of the book, just before publication, you know, final proofs of the book, the Pentagon announced the charges.
And the evidence that they cited was very interesting.
Firstly, they referred to, you know, the small amount of cash he had on him, $2,800.
And the fact that a travel itinerary that he had included the name of someone else who was wanted or that they were concerned about.
And that was about it.
And what's staggering about that is, of course, that's the material they would have had well before they started aggressive interrogation.
And they rely on none of the aggressive interrogation in that February 11th decision.
And that sort of rather suggests that, contrary to what the administration has said, and the official story is, they got all this extraordinary material out of him about Jose Padilla, the dirty bomber, about Richard Reed, the British shoe bomber.
That's all I was told.
I mean, I spoke to people who were involved in the interrogation process, and essentially, I was told he provided no useful information.
Now, something that really confused me when I read your Vanity Fair article, obviously, the book, Tortured Team, really focuses on Qatani the whole time.
But if I remember right, in the Vanity Fair article, you said that these so-called enhanced interrogation techniques at Guantanamo were only applied to three people.
Is that right?
Yes.
I mean, one of the I mean, I do think there is a misperception.
And it's important to be very clear about this.
I don't believe that there was widespread and systematic torture at Guantanamo.
I think there was torture in other facilities, Kandahar and Bagram on a much wider scale.
At Guantanamo, I mean, I've got lots of problems with the facility.
It violates international law in any number of ways.
And there has been abuse, I think.
But most of the abuse falls short of torture.
I think we've got to I felt I had a sort of responsibility to be really careful about banding around the word torture.
And as you know, from having read the book and the Vanity Fair piece, I went out and found someone who was an expert on torture, a medical psychiatrist, to get a sense of what severe mental pain and suffering means and how you would sort of meld the scientific and legal definitions of that and come to a conclusion.
I've met a lot of detainees who have been at Guantanamo and they really don't allege torture.
They allege abuses and they allege sort of lots of petty type things and more serious things.
But no one I've spoken to says they were systematically tortured at Guantanamo.
They were they allege torture at other places, as I've mentioned.
Well, at Guantanamo, I think it's limited to just two or three people.
And that I know is quite surprising for many people.
But I do think we've got a responsibility to take care in our definitions and not make allegations unless we can substantiate them.
And that's why I'm very comfortable at this stage coming out as strongly as I have on the story of this detainee, because I think the evidence and the facts are pretty clear.
Right.
Well, now, I guess there's been a lot of stories of mistreatment at Guantanamo, but perhaps not necessarily tied directly into interrogation.
For example, I know there's one guy who's dying of hepatitis and they won't give him any medical treatment.
The people who go on hunger strikes, they shove giant tubes down their throat far bigger than a doctor would use in a regular hospital and force feed them in the most distressing of circumstances.
Yeah, no, there's lots of stuff.
I mean, I've spoken to probably a dozen former detainees who've come out and the stories that are told are pretty bad stories.
On the other hand, you'll also be told this goes on in U.S. prisons on a daily basis.
Oh, yeah, well, there's no doubt about that.
And so, again, we've got to put things in a certain perspective.
And I mean, Guantanamo is a big, big problem on international law generally.
And we're coming up right now to a series of military commissions and trials for these first five characters, some of whom may have done some very bad things.
We don't know.
It seems some of them were also abused.
Some of them were tortured.
And, you know, it just raises very fundamental questions.
But the decision a couple of days ago on al-Qahtani really is catastrophic because it means we'll never know through some decent and established process what he actually did or didn't do.
The facts are never going to be established.
And what happens to him next?
Can we really see the administration now releasing out of captivity into freedom a man that has spent five years telling us was the 20th hijacker?
That's difficult to imagine.
So they're not going to try and they're not going to release him.
What does he do?
Spend the rest of his life incarcerated in Guantanamo or some other place.
You know, it has seriously backfired on the administration and it needs to be cleared up quickly.
And that's why I think the hearings before the House Judiciary Committee are a very important beginning.
Well, now, let me ask you about the migration of the techniques.
I guess we don't have time to go through the entire chain of events from Douglas Fyatt's memo to the policy to everything else.
But it can be established.
Is that correct?
That the policies for interrogating these few guys at Gitmo ended up sort of being spread throughout the military, being used in Afghanistan, as you mentioned, at Kandahar and at Bagram, and then, of course, at Abu Ghraib in Iraq.
Yeah, I mean, I think I think pretty much.
I mean, there have been three independent investigations by the U.S. Department of Defense Pentagon that have concluded there was migration.
Most recently, in 2006, the Inspector General report, this unambiguous conclusion that there was migration.
You find the migration in various ways.
You find that some of the personnel were the same personnel for the head, the combatant commander at Guantanamo, General Jeffrey Miller, goes on a visit to Iraq and Abu Ghraib in August 2003.
In September 2003, General Sanchez adopts new techniques of interrogation that are remarkably similar to some of the techniques that were used on al-Qahtani.
And then when they were doing their investigations, they find memos from Guantanamo on the computers in Iraq.
And I think it's pretty clear that there was a migration.
And, you know, it goes back, in a sense, one of the I did meet, right at the beginning, some fairly remarkable people.
One person who really stuck in my mind is a guy from the Bronx.
He called himself the boy from the Bronx, Mike Gellis, a clinical psychologist who worked for a group called the Naval Criminal Investigation Service.
Really decent, straight guy.
He was strongly opposed.
He was down at Guantanamo trying to stop this from happening.
And he described to me why you must not open the door to abuse and to torture.
Because once you open that door, people believe, people come to believe that if a little force is a good thing, then a little more force is going to be an even better thing.
And when you get a signal like a memo from Donald Rumsfeld saying these techniques of interrogation are fine, and then he handscrolls at the bottom of his document, why standing limited to four hours, I'd be down for eight to ten hours a day, which plainly by some will be taken as a signal, go as far as you need to go, you've got a real problem because you've got the top sending out a signal to people on the ground.
And as I said, I was on the Bill Morris show last week.
When he asked me the same question that you've asked, and I said, look, there were some bad apples, but the bad apples weren't on the ground, necessarily.
They were at the top.
They were the lawyers at the top, and they were the decision makers at the top.
And I think that the issue that troubles me almost as much as the crime is the cover-up, is the failure of many of the people that I spoke with to take responsibility for what has happened, and instead to finger-point people on the ground, hang them out to dry, and blame them for abuses that took place.
That's wrong, and that needs to be addressed.
Well, and you also told Bill Morris, too, I believe, that you weren't really interested in seeing the bad apples at the top prosecuted.
You wanted the story out, but you didn't think that actually criminally prosecuting these guys is the right way to go.
Is that right?
I don't want to be part of a witch-hunt prosecution type thing where I say these people must be prosecuted.
What I was more concerned about was establishing the facts.
I saw my role as firstly getting the facts out there, secondly pointing out that a war crime was committed, war crimes were committed, and that under international and domestic law, war crimes need to be investigated.
But it's not for me to carry out that investigation.
It's for others to carry out that investigation, and then to decide whether prosecutions should rise.
But I can tell you this, because I include one chapter in which I spoke to a European judge and a European prosecutor.
They were very clear on the facts.
I gave them the materials.
I gave them the original documents.
And they said, look, this looks serious.
This looks like the type of thing we should be investigating.
And what I said to Bill Moyers and what I said to the House Committee was that if the U.S. did not get its own house in order, there is a very real possibility, a very high risk of investigation abroad and possibly even more prosecution.
So I'm not saying I'm not necessarily supporting prosecution.
I'm just saying I thought my role, that I met these people, was to tell the story that I discovered and then leave it to others to decide where to go next.
All right.
And then we'll leave it with this real quick.
I believe it was you also that made the point that because of the Military Commissions Act that provides immunity for all of these things, that makes it more likely that some of these people could actually be indicted and prosecuted in other countries.
Well, that's the great irony, of course.
When the Hamdan judgment came down in July 2006, the administration upper echelons were deeply discouraged and disturbed.
A friend of mine happened to be having lunch with Jim Haynes, who was Mr. Rumsfeld's lawyer.
At the moment, that decision came down and he described Haynes just going white as a sheet.
And of course, Haynes would have recognized that the consequence of the Hamdan judgment was that he who had recommended these techniques was himself exposed to possible war crimes investigations.
So, of course, what the administration does is it goes back to Congress and gets the Military Commissions Act passed.
And the Military Commissions Act tries to adopt an immunity.
But that is very significant, because what it means is that a foreign investigator or judge or prosecutor is going to say, look, first thing I've got to decide is, is the United States trying to sort this out?
In the face of such a provision in the Military Commissions Act, a foreign prosecutor is going to say, well, the U.S. has tried to impose an immunity.
There isn't going to be proper investigation in the U.S.
Therefore, that obstacle to my investigation has been removed, and I'm entitled to have a look at this.
And it was, I think, in the words of, well, one of those judges, a very foolish thing to do.
All right.
I'm sorry.
I wish we had more time, but we don't.
I know you've got to go.
Well, I hope we'll have more chances.
But you're in Austin, Texas, right?
I'm in Austin.
I will be passing through Austin, Texas, on the 15th of September, and I'd be delighted to do something else with you.
Oh, great.
Yes.
Hopefully, we can speak again then.
I very much hope so.
Thanks a lot, Scott.
Thank you very much.
Okay.
Yeah.
Bye.
All right, folks.
That's Philip Stantz.
He's the author of the brand-new book, Torture Teen, Rumsfeld's memo and the betrayal of American values.
We'll be right back.
This debate is occurring because of the Supreme Court's ruling that said that we must conduct ourselves under the Common Article 3 of the Geneva Convention.
And that Common Article 3 says that there will be no outrages upon human dignity.
It's very vague.
What does that mean?
