Book Review – Torture Team: Deception, Cruelty and the Compromise of Law

In Torture Team, Professor Sands does not seek to unravel or reveal every act of illegality and deception engaged in by the Bush Administration since January 2001. His inquiry in this book is much more specific.

Three dates are crucial. On 7 February 2002, President Bush declared that inmates of Guantanamo Bay were unable to access rights under the Geneva Conventions that are generally available to protect persons captured in military conflict3

On 2 December 2002, Secretary of Defense, Donald Rumsfeld signed a memorandum forwarded to him by the Department of Defense General Counsel, William (“Jim”) Haynes. The memorandum approved use at Guantanamo Bay of a number of “counter-resistance techniques” for use in the interrogation of detainees. These aggressive techniques involved a departure from the traditions of the United States defence force’s approach to interrogation of prisoners. This tradition is seen to go back to the words of President Lincoln in 1863 that “military necessity does admit of cruelty”.

On 22 June 2004, in the wake of revelations of prisoner abuse at Abu Ghraib prison in Iraq, a joint press conference was held by Alberto Gonzales, Personal Counsel to the President (and later Attorney-General), Jim Haynes and Dan Dell’Orto (Haynes’ Principal Deputy Counsel at Department of Defense). In this press conference, the three lawyers released the Rumsfeld memo. They also released legal opinions signed by John Yoo and Jay Bybee, senior lawyers in the Justice Department. These opinions have been widely discussed ever since parts of them were leaked some time prior to the press conference of 22 June 2004. The opinions are widely perceived as an attempt by lawyers to argue that torture should be defined so narrowly that much that should properly be considered to be torture is legal despite the prohibitions against use of torture contained in international treaties and domestic United States legislation

The narrative that was spun at that press conference is the subject of Professor Sands’ investigation. The results of that investigation form the basis of Torture Team. The three senior lawyers portrayed the opinions of Yoo and Bybee as mere academic forays that had nothing to do with actual decisions taken by the administration. The Haynes memo was portrayed as the result of a process initiated by an aggressive Major-General at Guantanamo and the military lawyer attached to his unit.

The approval given by Rumsfeld to the proposal contained in the Haynes memo was portrayed as a reluctant and conservative approval of the request from the people on the ground at Guantanamo, supporting them in their difficult job seeking to get information from a new type of enemy of the American people and trying to protect American lives from fresh attacks from this same new enemy. Rumsfeld was portrayed as acting to rescind the approval after further careful consideration.

The application of the new aggressive techniques are followed through the interrogation log of detainee 063, Mohamed al-Qahtani, who was interrogated, often for 20 hours a day over 53 days by interrogators using most of the aggressive techniques approved by Rumsfeld. Often, two or more techniques were used in combination. Extracts from the interrogation log form an increasingly horrific epigraph to each of the chapters of the book.

Professor Sands’ research draws on many different sources including many pages of documents and a number of sources who remain anonymous. However, the story is told through the interaction between author as investigating interviewer, on the one hand, and most of the main players, on the other. The story unfolds revealing Professor Sands having conversations with these players most of whom were now working in new jobs as academics or Pentagon bureaucrats. This method of story-telling adds drama, character and atmosphere as individual characters take on roles as fall-guy (or gal); dupe or hard-head.

The author reveals a narrative very different to that which had emerged from the press conference of 22 June 2004. The origins of the Bush announcement of the non-availability of Geneva are connected to the Haynes/Rumsfeld memo. The Yoo/Bybee opinions turn out to be the legal advices relied upon by Rumsfeld and Haynes in approving the memo. And the proposals approved by Rumsfeld to throw out the time honoured approach to interrogation of captured enemy personnel come, as it turns out, through a process of manipulation from the lawyers ensconced at the top of the Administration tree and not from the ground floor at Guantanamo.

Professor Sands is interested in lawyers and how they behave when they take on political roles. He is interested in the way lawyers are drawn from serving the law to subverting the rule of law. The dramatis personae of Torture Team gives him plenty to feed his interest.

Torture Team, however, is not without its heroes. Interrogators from the military and from the FBI resented the subversion of their traditions and their professionalism by people who had power but knew nothing about the science of interrogation or the virtue of integrity. The legal tradition within the defense forces responded to the concerns of the professional interrogators. When Alberto Mora, General Counsel to the Navy, with the support of his colleagues and his supervisors, persisted in ringing the senior lawyers at the Department of Defense, Haynes and even Rumsfeld knew that they must buckle. And they did. The memo was rescinded and soon the cover-up which is the subject of this book commenced.

Torture Team is an exciting and important book. It is not surprising that the dust cover quotes a favourable review from John le Carre, himself an author of books of great excitement.

The night before I wrote this review, I watched on television as a former guard at Guantanamo Bay revealed his opinion of former colleagues some of whom he described as “psychopathic”. The inauguration of a new President, as I write, is only days away. Hopefully, with the climate of fear diminished with the passing of the Bush Administration thugs from office, the ugly truth of subversion of the law under the Bush administration (and the role of lawyers in that process) will continue to be revealed and told.

Professor Sands’ book is an important contribution to that process. Though, often, we seem to be doomed to re-live the worst experiences of our past, we must still struggle to learn the lessons that might avert that fate. Torture Team contributes to this struggle as well.

Torture Team carries a very warm recommendation from this reviewer.

Stephen Keim SC

Footnotes

1. Philippe Sands is a Professor of Law and Director of the Centre on International Courts and Tribunals at the University College London. See http://www.ucl.ac.uk/laws/academics/profiles/index.shtml?sands. He is a member of Matrix Chambers in London. See http://www.matrixlaw.co.uk/WhoWeAre_Members_PhilippeSandsQC.aspx. He took silk in 2003. He practises mainly in public international law. He has been involved in cases in the English Courts involving General Pinochet and involving detainees of Guantanamo Bay. He has also appeared before a number of international tribunals. See http://www.matrixlaw.co.uk/WhoWeAre_Members_PhilippeSandsQC_NotableCases.aspx.
2. The Allen Lane imprint was established in 1967 to publish non-fiction titles in hard back (alongside Penguin’s traditional paper backs for which it was famous). The imprint is named for Sir Allen Lane the founder of Penguin. In 1935, Lane, then a director of Bodley Head, had the idea to publish quality literature at no more than the price of a packet of cigarettes when he was unable to buy a decent book to read when waiting for a train. Thus, Penguins were born.
3. The declaration was differential in its application but identical in its effect. Members of the Taliban had rights under the Conventions but could not access them. Members of Al Qaeda did not have any rights under the Conventions.