Incidentally, what are the chances that Obama will give George Bush a Presidential pardon over the torture issue? I kind of like the idea actually. Realistically, prosecution of George Bush within the US would be a bad idea. A fair trial would be almost impossible. But a Presidential pardon would be a two-edged sword, letting Bush off the hook, but branding him as a criminal in the eyes of history. Only criminals need a pardon.
Can the US President do that? Grant a pardon to someone against their will?
Anyhow, looking forward to a future where people like Cheney, Rice, Rumsfield and the other henchmen are unable to step foot outside the US for fear of arrest.
Bill Bartlett Bracknell Tas
http://www.abc.net.au/lateline/content/2008/s2561815.htm Australian Broadcasting Corporation Transcript
Broadcast: 05/05/2009
Reporter: Tony Jones
International lawyer and author of Torture Team, Philippe Sands, discusses the torture allegations against the US' Bush Administration.
TONY JONES, PRESENTER: Earlier this evening we were joined by international lawyer Philippe Sands, the author of Torture Team. He was in our London studio.
Philippe Sands, thanks for joining us again.
PHILIPPE SANDS, INTERNATIONAL LAWYER & AUTHOR: It's very good to be with you again, Tony.
TONY JONES: How significant was President Obama's release of the torture memos?
PHILIPPE SANDS: I think it was very significant. I think he is, as you probably know, in something of a bind. He's caught between two positions. On the one hand, he wants to move on and build a bipartisan degree of support for his other plans and projects and policies. On the other hand, he's a rule of law bloke and he wants to see justice done. I think what he hoped to do was that by releasing the memo create a sort of wave of allowing people to move forward rather than to look back. But what's caught him unawares was the reaction to what was in some of those memos.
TONY JONES: Yes, I mean, in fact people are calling for prosecution of the people who wrote them. But I'll come to that in a moment because that is extremely interesting. But as a lawyer yourself, you've always focused on the role of lawyers in giving this quasi-legal justification for torture. So first of all, tell us about the authors of these four memos.
PHILIPPE SANDS: Well, they're in two groups. The first group, the group that I've looked at most closely, are the memos from 2002, which is when the abuse - when the cruelty - started. And the signed author is a man by the name of Jay Bibby. He ran a body called the Office of Legal Council in the Department of Justice, which is a hugely important body because in the US system of government, when the Office of Legal Counsel gives an opinion, it's binding on all of government. In fact, the memo was largely written by his deputy, John Yu, who is a Professor of Law at Berkley Law School with input from David Addington who was Mr Cheney's general council. That's the first group. The second group dates to 2005 and it's written by the successor to Jay Bibby, Stephen Bradbury, also head of the Office of Legal Council and I think the surprise of those later memos is that people thought those techniques had long been abandoned after the pictures of Abu Ghraib had emerged.
TONY JONES: Indeed, Bradbury goes on and sets out 10 integration techniques approved for use by - against al Qaida operatives including Abu Zubaydah. Now they include waterballing, waterboarding, something called walling. All of these things just remind you of how far the CIA was prepared to go. But, the incredible thing is the numbers of times that these kinds of techniques were used against individuals.
PHILIPPE SANDS: Well, that is pretty amazing. I mean, just to ratchet back a little bit. Last summer, I testified before the House Judiciary Committee on a couple of occasions and one of the Republican congressman, Trent Franks, put to me, "What's all the fuss about? If waterboarding was used, it was used on no more than three men for a total of one minute each, grand total three minutes." In fact, we now find out through the release of these memos that two men were waterboarded a total of 266 times, which is absolutely astonishing. One individual 183 times. And you really have to ask yourself, you know, when they got to waterboarding event number 83, did they really think there was anything more they could get out of him? So this was on a very large scale indeed. I think we weren't supposed to know that. They accidentally, in releasing the memos, failed to black out one of the footnotes and a blogger in California somehow got sight of that and made that widely available. But they are staggering, staggering numbers.
TONY JONES: There's also a rather shocking echo of Orwell's '1984' in this particular memo. You'll recall 'Room 101' where the prisoner is subjected to their own worst nightmares. Well, it seemed the CIA had figured out the worst nightmare of Abu Zubaydah.
PHILIPPE SANDS: Well, they had and this involved in particular insects. And there is a page and your viewers, I think, will want to read that page for themselves, where the lawyers go through all the different permutations of putting someone in a small box or a large box and then including in the box some sort of insect. And the lawyers go on at length about whether or not the insect bites or doesn't bite, whether it can inflict a fatal sting or not and then whether or not you tell the person that there's an insect in there and what sort of insect it is. It's mind-boggling reading. I thought, Tony, I'd become pretty hardened to these memos, but I have to say, when I read that page, I was astounded. And I think it's precisely that type of reasoning. And, you know, what Frank Rich called the depravity of the reasoning that has caused a revulsion and a growing call for some form of accountability, particularly against the lawyers.
TONY JONES: And yet there was a dispute within the Obama Administration as to how much of these memos should be released. The CIA Director Leon Panetta wanted whole sections blacked out. You mentioned that some sections got through by accident. But what did they want blacked out that didn't get blacked out?
PHILIPPE SANDS: Well I think they wanted the specific techniques blacked out, is what I understand was said. They wanted - they were concerned that by making the details of the techniques available they would embolden the enemy, so to speak, and give them information that they wouldn't otherwise have, including for example, I suppose, the numbers of times that individuals might be waterboarded.
President Obama overruled that, I understand personally, because he formed the view, "Look, this information is out there anyway. People know basically what happened." I mean, there's a broader concern is I do wonder whether Leon Panetta in fact rather wisely realised that the effect of putting this material out would be very dramatic in terms of increasing the unhappiness. And of course there's another release coming in three weeks time which is a whole raft of new photographs that have never previously been published of abuse and I think there's a similar debate going on in relation to that material.
TONY JONES: Well that brings us to the possibility of prosecutions because the only people that have been prosecuted for any kind of torture are the lowest of the low, this Charles Graner and his little team in Abu Ghraib. But if there are prosecutions and the US Attorney General has not ruled this out at this point, they would have to go up the chain of command, would they not, and certainly to the memo writers?
PHILIPPE SANDS: Well, it's fascinating story. I mean, I looked at this in my book very closely and I focused in particular on the lawyers and the policy makers and upwards, taking the view that at the end of the day the people who were in the room doing the abuse are not necessarily the best targets for criminal investigations.
President Obama, I was pleased but surprised, frankly, has expressed the same view. In releasing the documents, he issued a statement making it clear he did not think the actual interrogators who relied in good faith on legal memos should be targeted for criminal investigation. But three or four days later, he clarified that and said the same would not apply in relation to what he called "the framers of the legal decisions". And those, he said, were a matter for the Attorney General. The context, of course, for all of this is that there is now an active criminal investigation in Spain by Judge Garzon, he of Pinochet fame, and there is also a criminal investigation in the United Kingdom in relation to allegations of British complicity. So, the net seems to be widening.
TONY JONES: Let's stick with the possibility of an American investigation first. If they do begin a sort of prosecution, would they do it in the classic pyramid style where they work with the people on the bottom, get their evidence and gradually move towards the pinnacle, that is, the people who made the decisions, the policy decisions, that issued the orders?
PHILIPPE SANDS: Well, in short, I think that's sort of a classic prosecutorial strategy. I had a dinner a month or so back with someone who was involved in the first Bush Administration - involved for prosecuting the Exxon Valdez oil spill. And he described to me that was precisely how the Department of Justice had worked back in those years. And I think that is what you do. I think it's pretty unimaginable still at this point to go for the main men and women - Donald Rumsfeld, Dick Cheney in particular and perhaps even President Bush. But what you do, I think, if you're looking at this is you start a couple of notches down. And the lawyers really have grabbed a lot of the attention. Why is that? Because I think people are coming to the realisation that, but for the lawyers, this would not have happened. And we know, as you've rightly said, that in Abu Ghraib, those who have been criminally investigated and prosecuted and convicted are the people down at the bottom - "the few bad eggs", as the Administration constantly refers to. But of course it now becomes clear that the images of Abu Ghraib seem to have been directly related to the decisions and the memos that came from the top.
TONY JONES: The people vulnerable who could end up as a list of suspects include people on the intelligence committee list. They would be people like Condoleezza Rice, they'd be people like Vice President Dick Cheney and Donald Rumsfeld, people you've just named. Condoleezza Rice got herself in a bit of a sticky situation just recently. Tell us about that.
PHILIPPE SANDS: She did. I mean, there's a couple of different groups. The focus abroad has been on a group called the Bush Six, the main lawyers for the Bush Administration. But more recently, with the publication about 10 days ago of a list, a chronology, actually, a detailed account of the circumstances in which these memos of 2002 were written. A new list has emerged of people who were involved in July, 2002 in a decision to approve waterboarding. And that list includes Condoleezza Rice and her lawyer. She got herself into a bit of difficulty last week. She was buttonholed in a dormitory at Stanford University by a group of students armed with a video camera who started asking her questions, and remarkably, she got pretty flustered. It's quite well worth watching and at one point says, "Look, if the President authorised it, it can't be illegal." And that of course harks back to the era of President Nixon. She went further, in fact, and denied that she had authorised the waterboarding. What she said was she merely conveyed the authorisation of the administration. She seemed to be referring to her boss, who is of course the President of the United States. And that I think is going to open a whole new avenue of investigation.
TONY JONES: Is it conceivable that this could go - this prosecution, this investigation - could go as far as the White House and President Bush's own authority?
PHILIPPE SANDS: Well it's a difficult question. There's two questions there. In terms of law, could it go that high? Well, the evidence seems to be pretty strong now that certainly the Vice President, certainly Mr Rumsfeld, certainly now it seems Secretary of State Condoleezza Rice - she was formerly the national security adviser - were involved. President Bush was not on that list released by the intelligence committee 10 days ago. But Condoleezza Rice now seems to have fingered him. And the issue I think is much more one of political will - can we really imagine an independent prosecutor or an Attorney General in the United States opening a criminal investigation of the most recent administration? It's somehow very hard to imagine. That doesn't mean that foreign criminal investigations outside the United States might not do precisely that, and there's some indication that that is what is about to happen in Spain.
TONY JONES: Yes, the Spanish relying on the 1984 convention against torture for the legal basis for their trial. Why not war crimes, for example, or crimes against humanity - probably a bit too broad. But war crimes would actually - war crimes, I think, and crimes against humanity were the crimes that Pinochet was pinned down on, I think.
PHILIPPE SANDS: The Spanish investigation is actually based on two sets of international conventions, both of which provide for some form of what's called universal jurisdiction. The first is the torture convention, 1984, which both the US and Spain are party to and which provides for any state party to exercise criminal jurisdiction in relation to torture anywhere if the world, and it's a convention on which the United States has itself relied. But the Spanish investigation also relies on the 1949 Geneva conventions and of course famously, its common article three which outlaws torture, cruelty, inhuman and degrading treatment - outrages against human dignity. And so there seems to be a pretty strong basis, particularly since there were a number of Spanish related detainees at Guantanamo who have been held and who allege that they were abused or tortured.
TONY JONES: Well, Dick Cheney - could he be vulnerable to a prosecution that succeeds in Spain and prevents him from leaving the United States without fear of arrest because this is what happened to Pinochet?
PHILIPPE SANDS: Well, I think that it's pretty clear that there's a raft of individuals who will not be setting outside - foot outside - the United States for the foreseeable future. You know, those who own summer places in Tuscany or the south of France I think will be exercising particular care. I get, surprisingly, phone calls or emails from relatively senior people who worked in the administration who were directly or indirectly affected asking informally for advice, should they be travelling, are they likely to be targeted and that's a difficult question. But there is now a change of atmosphere, I think, and in particular when President Obama said three weeks ago the framers of the legal decisions will have to be considered by the Attorney General and the President doesn't want to prejudge the outcome of that, that really was I think a transformative moment in terms of recognising torture has happened, torture is a crime and crimes, at the very least, need to be investigated.
TONY JONES: For his part, Dick Cheney went on the front foot straight away. He's called for full disclosure of all the memos - all the relevant memos - in order to prove, and I have to paraphrase here, that torture works, that torture saved lives.
PHILIPPE SANDS: No, that's absolutely right. He did that a couple of weeks ago on a Fox News TV program. I think he's right. I think that the material should come out, but I don't think it should stop just at the limited number of memos that he referred to. I think it would be helpful also to put out interrogation logs, photographs, which I think are coming in a couple of weeks time, videos and audio to the extent that they have not been destroyed, but also, the analysis that took place as to the impact, if you like, as a recruitment tool, of the news that these types of techniques were being used. I think, you know, the US has this great tradition of openness, of putting information out and of allowing people then to form their own view. I think Vice President Cheney was right to make that call, but I think the logic of his argument is you go the full hog and you put it all out. Let's also be clear that as we put it out, other countries, I think, will find themselves increasingly implicated. We have some clear evidence now of British participation at some level. Whether that caused crimes to be committed is another matter. And I think as the information comes out, we're going to be surprised at how much co-operation there was from the Allies of the United States.
TONY JONES: Including Australia?
PHILIPPE SANDS: Well, I mean, one assumes that there was some degree of Australian co-operation. Australia and Britain were very supportive of President Bush's war on terror. I haven't focussed on the Australian situation, but if Australia was half as involved as Britain, then it seems likely that material will come out. I mean, the US wasn't on its own on these issues and it's to the great credit, I think, of the present administration that they believe in transparency and openness. They're putting materials out. That's going to cause some difficulties for some of the United States' allies, I suspect.
TONY JONES: A final question: what about the torture-tainted cases against top al Qaida officials like Abu Zubaydah - we just talked about him. Also Khaled Sheikh Mohammed is meant to be one of the masterminds, if you believe the allegations, and most people do, of the 9/11 attacks. Could those trials end up being completely destroyed?
PHILIPPE SANDS: I think it's very likely that should happen. You know, Tony, one of the great ironies is that the Spanish case has now arisen in relation to the Bush Six, because of a collapsed case in Spain. Garzon began the task of prosecuting a number of Spanish nationals and residents who'd been at Guantanamo for crimes of terrorism. Those cases collapsed because they successfully made allegations that they had been abused. And so he has now turned, if you like, on those individuals in the United States, formerly the Bush Administration, who caused his criminal investigation to collapse. So there's a certain irony there. But the bottom line of it is, once someone has been abused in that way, the evidence that's come out of those interrogations can no longer be used. That undermines the likelihood of an effective criminal investigation and opens the door to a sort of reverse targeting of the individuals who caused the abuse to happen.
TONY JONES: Yes, but it also opens the door to something else. It's been reported that Barack Obama is now considering whether to restart military tribunals in Guantanamo Bay. They may be the only way of trying the 100 or so people they say are the hardcore cases that they can't try under American law, apparently because the trials would be tainted, but nor can they let them go.
PHILIPPE SANDS: No, I think that's right. That balloon was floated last week, I think to get a sense of what the opinion would be - go back to the military commissions. He never closed the door to that. He said he wanted a review process of 120 days. That's now - that period is now coming up. But I mean the amazing thing about this story is it never ceases to throw up the most extraordinary new developments. So, alongside that suggestion of the military commissions coming up, emerged over the past few days the news that what may have caused all these abusive techniques of interrogation to be used was the desire to find intelligence to justify an attack on Iraq. And I have to say, I'd never made the connection between the two, but some interrogators are now saying that was the true purpose of the interrogations that took place of Khalid Shaikh Mohammed and Abu Zubaydah that get the intelligence on weapons of mass destruction. And so I think I we're going to see an ongoing process in the coming days and weeks and months, making connections that we may not have fully seen. The bottom line is, I think, the full story is yet to emerge.
TONY JONES: Philippe Sands, hopefully we'll be able to keep coming back to you as the story emerges because you clearly have been following it from the beginning with greater attention than virtually anybody and we thank you very much for joining us again tonight.
PHILIPPE SANDS: Well thank you very much for inviting me on the program again, Tony. Terrific to be with you.