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Philippe Sands, a British QC, has exposed the ‘decent’ lawyers who made the brutal interrogation of Guantanamo detainees possible

The interrogation room in Guantanamo Bay, Christmas Eve 2002. Detainee 063 – an Al-Qaeda suspect called Mohamed al-Kahtani, who may or may not be that sought-after 20th 9/11 hijacker – is crying in his chair. It is his 33rd day of continuous interrogation – a month with almost no sleep – and the interrogators have started up with the white noise again and are pouring water over his head.

Maybe the snarling dogs will come back too, or he’ll once more be humiliated by some woman pressing up against him while he’s told to stand or crouch naked for hours on end. He’ll be yelled at, shaved by force and made to act like a dog and will have instructions bellowed at him from a distance of 2in. He’ll be so terrified and exhausted that he’ll wet himself.

Happy Christmas, Mohamed. Good Christian men, rejoice.

Mohamed, who really is a bad ’un, believe me, does not know this yet but there’s only a fortnight more of this misery – torture, some would call it – to endure. Afterwards there’ll be a scandal about the way he and one or two others were being treated and the US government will say: okay, we’ll call off the dogs – it was just our people on the ground overreaching themselves, being a bit too zealous. We’re a democratic government; we don’t do stuff like that – despite the sort of provocation we have to endure. If only we had known, and so on.

The thing is – they knew. It was the US government’s explicit policy to wipe away the Geneva conventions and subject the supposedly most dangerous captives to what were euphemistically called “aggressive” interrogation techniques – techniques that flouted international law. The people behind the policy are therefore, according to the British human rights lawyer Philippe Sands, criminals who may well face charges should they choose to take a holiday in, say, France or Germany.

And who are they, these people? Top government lawyers who – at the behest of Donald Rumsfeld, the then defence secretary – cooked up a means of bypassing Geneva and in effect allowed the interrogators on the tip of Cuba to do whatever the hell they wanted. And, at Guantanamo Bay, lowly, inexperienced lawyers on the ground who were left isolated to provide the legal regulation for what might constitute humane treatment and what might not.

Meanwhile some of the top military brass, including General Richard Myers, chairman of the joint chiefs of staff, were hoodwinked about what was really going on.

We may have suspected that the US government had approved all this stuff, but we didn’t know for sure until the publication last week of a remarkable book by Sands, who works at Matrix chambers alongside our own lovable Cherie Booth QC, the wife of a man who – according to her fellow QC – knew full well what was being done at Guantanamo and did nothing whatsoever to urge a halt.

“Blair knew,” Sands says, shaking his head. “Of course he knew. I mean, if I knew about it back then, Blair must have done.”

Torture Team, Sands’s book, published by Penguin, may well be the best bit of contemporary investigative journalism you will read: it is right up there with Woodward and Bernstein, a tour de force of relentlessly dogged pursuit, of interviews with guilty men acquired against all the odds, a beautifully told and humane narrative that follows a paper trail and nails the truth. What is perhaps most remarkable about it is the clear sympathy that Sands, a leftie, has for the succession of gung-ho, proto-Republican legal professionals who either deliberately or inadvertently allowed the torture of prisoners to take place.

He shared dinner with these monkeys, sank beers with them, allowed them to express themselves without censure – afforded them the opportunity to hang themselves, I suppose. That is why this is such a good book, and why a film may follow. It is also why Sands will find himself facing the US Congress on Tuesday, when he will be asked to spill yet more beans.

An affable and engaging chap, he shakes his head once more. “Well, you see, these are decent people – they are not bad people at all,” he says of the likes of Diane Beaver, a bog-standard Midwestern lawyer who was desperate for help, scared stiff and frankly out of her depth when she started formulating legal advice about the treatment of prisoners. Also “decent”, in Sands’s eyes, is the horribly “feisty” and to-the-right-of-a-fishknife chipmunk Douglas Feith, undersecretary of defence for policy, who exulted in having dreamt up the legal wording that enabled the US government to ignore the Geneva conventions.

One by one, though, their defences dropped and they succumbed to the British barrister’s mild but persistent inquiries. They all spoke, admitting that as a result of inadequate legal advice, lines had been crossed and prisoners had suffered.

One reason may be that they thought they’d been doing the right thing all along. After all, the US had just suffered its most serious collective trauma since Pearl Harbor and bad ’uns were rounded up.

And these enemies of the state were not summarily beheaded – the somewhat paradoxical method of interrogation favoured by Osama Bin Laden’s numerous franchises. The worst they could expect was constant exposure to the admittedly awful music of, among others, Christina Aguilera; being forced to stand or kneel; having a bit of water thrown over them; and not being allowed to sleep for very long. And being shouted at and perhaps prodded in the chest a little brusquely.

Maybe they’d be shown some nasty dogs too, from time to time – but the US military doggies, bless them, never got too close to the prisoners; they just growled a bit from a distance.

Isn’t Sands missing the bigger picture here? It is notable that in his 280 pages detailing the abuse inflicted upon the likes of Kahtani, scarcely two pages are devoted to an exposition of Kahtani’s own alleged crimes: the cold-blooded murder and mayhem he supposedly intended to wreak upon the people of the United States.

I paraphrase to Sands what was said by Feith in the book – that the British QC is in effect “on the side of the asshole”.

But Sands counters by saying, first, this is not what his book was about; and, second, that playing Christina Aguilera very loudly to Muslims doesn’t work. “The serious interrogators I spoke to – and I spoke to a lot – were all agreed on one thing: that force never works. You need to establish a rapport with the prisoner.

“Also, as Cal Temple [a former chief of the counterterrorism division of the Defence Intelligence Agency] told me, ‘When you capture someone, you have a window of a day or so to get him to speak. Take him to the top of a building, threaten to push him off . . . that can work . . .”

In fact, Kahtani was being prodded in the chest and sprayed with water a full 10 months after his capture. Nothing new came from his confessions – and, of course, the legitimacy and substance of what he said is being questioned because it was obtained by force. He is now on trial for his life.

So, smacking the prisoners around won’t get you what you want, gratifying though it may be in the short term. But what of the ticking-bomb scenario, as repeatedly envisaged by the likes of the conservative lawyer and political pundit Alan Dershowitz? You have a prisoner in an interrogation room and a hidden bomb that is about to go off somewhere and kill a lot of people. Torturing the prisoner to tell you where the bomb is is a lesser evil than the bomb going off and killing lots of innocent people. Sands spreads his hands wide and smiles. “It has never happened. That situation has never occurred.”

He compares the behaviour of the guilty or compliant lawyers in the US to those German lawyers who in the mid1930s connived with the Nazi party to legitimise what became geno-cide. And he makes a lot of this – unwisely, in my opinion. It is hugely overstating the case against Feith and – as Sands avers – the real bad man: William Haynes, the general counsel to the US defence department, who was either deliberately obstructive or utterly uninterested in suggestions that Kahtani and others were being tortured.

They may have done bad things, caught up in the terrible spirit of the moment after 9/11, but they were not Nazis. Sands is almost too ready to concur: “Yes, I think that’s right. They weren’t Nazis by any stretch of the imagination. It is overplayed.”

Well, in which case, why labour the point? Sands says he was searching for a historical legal parallel – when lawyers were found culpable of legitimising the actions of a rogue state. I still think, though, that it is an outlandish, Dave Spartish conceit that undermines his argument.

Similarly, he rather lets Rumsfeld and Vice-President Dick Cheney, off the hook by focusing his attention on the lawyers who advised them. After all, the lawyers were not responsible for policy; they merely formulated the words that allowed the policies to be enacted. Again, Sands agrees and says this is a criticism he has heard from friends. But then he is particularly interested in the potential shortcomings of those in his own profession: “For better or for worse, the lawyers are the gatekeepers,” he says.

Still, his book is a magnificent achievement, done in his own time and at his own expense, well away from the heavy
(and lucrative) workload at Matrix chambers. I like the image of him cannily fixing up these interviews with President George W Bush’s most eminent lawyers and then scurrying over to the US as fast as he can to talk to them before they have time to Google his name and discover he’s a dyed-in-the-wool leftie who intends to give them – politely and with great affection, in some cases – a thoroughly good kicking.

Some of his subjects Googled him while his flight was in the air, and he arrived to find the interviews had been cancelled. On each occasion, he managed to talk them, or their wives, around by wheedling, using subtlety and presenting himself always as a barrister – not a pesky journo – who was determined to give a fair hearing to all.

Speaking of fair hearings – what does he think of his famous colleague at Matrix, Cherie Blair? Or Cherie Booth?

He has a lot of time for her, he says; he thinks she’s terrific. “But I think she maybe shows bad judgment,” he says, laughing a little. No kidding.

May 5th, 2008 | Category: Detainee Treatment Act, Guantanamo, Rumsfeld, Torture, USA |  Print This Post | Subscribe to comments | Leave a comment | Trackback URL