“How did a state conceived in awe of The Rights of Man make psychopaths of its children?” That is the question posed by Philippe Sands QC and a professor of international law at University College London.
The British barrister raised the question as he delivered the fourth lecture in the Pensa Lecture Series in Human Rights at the Faculty of Law, University of Western Ontario, London, Ontario.
Sands is not only a distinguished English lawyer specializing in international law but he's also an important author writing on international human rights issues. His most recent book is Torture Team: Rumsfeld’s Memo and the Betrayal of American Values
What or who gave the American administration the belief they could abandon President Lincoln's famous disposition of 1863, that "military necessity does not admit of cruelty"? In other words, torture to extort confessions is not acceptable.
How did they come to believe they could circumvent international law, the Geneva Conventions, and the U.S. Army’s own Field Manual
? Sands' answer: lawyers.
He focused his talk on the Bush Six, six high-ranking administration officials — all deeply unprincipled individuals, and all lawyers — who formed a veritable torture-justifying A-team.
• David Addington --- former Chief of Staff to Vice-President Dick Cheney
• Jay Bybee --- Justice Department lawyer
• Douglas Feith --- former Under-Secretary of Defense for Policy
• Alberto Gonzales --- former Attorney General Alberto Gonzales
• William (Jim) Haynes --- former general counsel for the Department of Defense and chief counsel for Donald Rumsfeld
• John Yoo --- Justice Department lawyer
When the pictures depicting torture at Abu Ghraib, Iraq, became public a few bad apples were initially blamed. President Bush said the photographs depicted “disgraceful conduct” dishonouring the United States and disregarding American values.
Sands, in the tradition of the finest investigative-journalism, tracks events in Abu Ghraib and Guantanamo up the chain of command to the very top — a top found not in Iraq nor in Cuba but in Washington. The ‘bad apples’ were high-placed and home-grown.
Although it is clear that Sands is appalled by the actions of many when it comes to America’s sordid involvement in torture, he withholds his strongest, damning indictments for the government lawyers involved.
In a Vanity Fair
article written by Sands, and referred to during his talk, he wrote:
“The fingerprints of the most senior lawyers in the (Bush) administration were all over the design and implementation of the abusive interrogation policies. Addington, Bybee, Gonzales, Haynes, and Yoo became, in effect, a torture team of lawyers, freeing the administration from the constraints of all international rules prohibiting abuse.”
In Hamdan v. Rumsfeld the U.S. Supreme Court ruled that Guantanamo detainees were entitled to the protections provided under Geneva’s Common Article 3. Within four months President Bush signed the Military Commissions Act into law, providing legal protection for those connected to the interrogation methods many perceive as torture.
Some of the American lawyers, the enablers of torture, were granting themselves, the interrogators and their superiors immunity from prosecution — at least, within the borders of the United States. Outside the U.S. the Act may have the opposite effect than that intended.
Sands took a European judge and prosecutor, point by point, through the facts pertaining to the Guantanamo case. The two were particularly struck by the immunity from prosecution provided by the Military Commissions Act.
As Sands said in his Vanity Fair
“That is very stupid,” said the prosecutor, explaining that it would make it much easier for investigators outside the United States to argue that possible war crimes would never be addressed by the justice system in the home country — one of the trip wires enabling foreign courts to intervene.”
International law is very clear and the American government was once in agreement. Torture is the inflicting of severe pain or suffering, whether physical or mental. (UN Convention Against Torture.)
In researching his book, Sands interviewed General Hill, Commander of US Southern Command. Sands found Hill a thoughtful man, “deeply troubled by these new techniques of interrogation.” Sands went through the list of government sanctioned techniques with Gen. Hill, and asked if he would ever be comfortable with these techniques being used on Americans. He said no.
Of course, this raises the obvious question: If these techniques cannot be used on Americans, how can they be used on others?
According to Sands, "The lawyers were the enablers." If it had not been for the lawyers, the techniques that made the United States a-nation-that-tortures in the eyes of many, "would not have seen the light of day."
Lawyers are the guardians of legality — the Rule of Law. Even if they "acted in good faith," it is not a justification or an excuse for their conduct.
After the Second World War, the U.S. led the world in creating a new system of international rules. The United States agreed to the outlawing of the use of interrogation techniques amounting to cruelty, or abuses against human dignity, or torture.
In 1984 the UN adopted the Torture Convention criminalizing torture and complicity and participation in torture, and putting in place an elaborate system of universal criminal jurisdiction designed to snuff out the places of refuge available to the torturer and their aides.
This Convention caused the House of Lords in the U.K. to rule that Senator Pinochet was not entitled to claim immunity from the jurisdiction of the English courts in relation to acts of torture committed during his time as Head of State of Chile. The Convention opened the door to increasingly widespread enforcement of international criminal laws.
This is an impressive body of international rules, one which had coalesced by the mid-1980s into an absolute prohibition on torture in all circumstances. According to Sands, it is very clear: Americans tortured and must be punished. There is no amnesty for those who torture.
“If I were they,” referring to the Bush administration officials in question, “I would think carefully before setting foot outside the United States. They are now, and forever in the future, at risk of arrest."