Politics

The TNR Q&A: Philippe Sands

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British writer and international lawyer
Philippe Sands is the author of The Torture Team ,
in stores May 5, which chronicles the role lawyers played in the introduction
of the Bush administration’s program of coercive interrogation techniques.
Here, Scott Horton talks to Sands about his findings.

TNR: In The Torture Team, you focus on a single document, Donald
Rumsfeld’s December 2, 2002 approval
of extraordinarily aggressive interrogation techniques. You give us the
document’s genesis, and the revolt within the Pentagon that led to its being
formally withdrawn. But what you show is a process as much as a document, and
that process appears to me to be a conscious, studied circumvention of the
normal procedure followed by the U.S. military. Do you agree?

Sands: When the administration released the December 2002 and other memos, it
told a story that essentially said this: The new interrogation techniques came
from the bottom up and had nothing to do with policy decisions driven from the
top. I wanted to explore the truth of that account, by trying to talk to as
many of the people involved in the decision as I could. I journeyed around
America, tracking down the key players--amongst many others, Diane Beaver and
Mike Dunlavey at Guantánamo; General Tom Hill at SOUTHCOM; General Dick Myers
at Joint Chiefs and his lawyer, Jane Dalton; Doug Feith at the Pentagon; and
Jim Haynes at the general counsel’s office. I racked up hundreds of hours of
interviews with them, from which emerged a clear account of the process that
was actually followed--though, of course, there are many more points of detail
still to come out. The pressure for the new techniques came from the top and
there was input from the top into the identification of the techniques. In
pushing forward the decision-making process normal approval process was
circumvented, as General Dick Myers at Joint Chiefs confirmed to me, saying,
“This was not the way this should have come about.” Jim Haynes is one of the
key players in this story. He was general counsel at the DoD throughout the
period, Donald Rumsfeld’s Harvard Law School–trained lawyer who, it turned out,
was intimately involved in the key decisions from a far earlier stage than his
public accounts suggest. He may not have been the “brains” behind the whole
operation--that designation must surely go to David Addington, Vice President
Cheney’s lawyer at the time, and Haynes’ mentor. But Haynes was deeply and
constantly involved.

The man likely to go down in the history
books as “Rumsfeld’s general” is Richard Myers, who served as chairman of the
Joint Chiefs of Staff from 2001-05. You are impressed with his candor, and seem
to like him personally, yet you write that he was “well and truly hoodwinked”
in connection with the introduction of the torture techniques.

I spoke with General Myers for several hours, and I was grateful to him for
meeting with me. He struck me as a man of decency and integrity, but one who
was out of his depth on these issues and seemed not to have turned his mind to
crucial points of detail. It was painfully clear that he had failed to
understand the implications of President Bush’s February 7, 2002, decision
on the Geneva Conventions (a decision that removed from all detainees at
Guantnanamo the right to invoke any rights under those conventions and which
removed constraints on interrogation). It was equally clear that he thought the
new techniques of interrogation had come from the U.S. Army Field Manual. In
fact, the Field Manual plainly prohibited all the techniques recommended by
Haynes on November 27, 2002 and approved by Rumsfeld on December 2, 2002,
reflecting President Lincoln’s determination, dating back to 1863, that the U.S. military
would never engage in cruelty. These were two of the more surprising--shocking,
actually--moments during hundreds of hours of interviews that I conducted. I
was astonished that the most senior military man in the U.S., perhaps
in the world, could have had so little grasp of the import of what had been
decided.

The administration’s narrative has
been that a harsh set of interrogation techniques, including waterboarding and
stress positions, was introduced in response to demands from interrogators in
the field who concluded that what they had didn’t work. How did you reach the
conclusion that, in fact, the pressure for the new techniques came from high up
in the administration and worked its way down?

I have no doubt about the early, close, and active involvement of the upper
echelons of the administration in the decision to request, approve and then use
harsh techniques of interrogation on “Detainee 063,” Mohammed Al Qahtani. The
story that emerged from the interviews was clear and it was consistent (plus, I
had the opportunity to put my findings to Jim Haynes, who was the final piece
of the jigsaw). The administration’s ‘bottom-up’ narrative--as spun by Mr.
Haynes and others--is false, inaccurate, and misleading, and I believe it was
knowingly intended to be so. The administration has scapegoated individuals who
were on the ground at Guantánamo in order to protect itself. Names that could
have been blacked out were not. That is deplorable, and the cover-up of what
really happened will likely expose those who engaged in it to even greater
difficulty.  

The lawyer whose legal analysis underpins
the Rumsfeld memo is Diane Beaver, whom you describe as completely out of her
depth dealing with a complex set of international law questions. But you also
note, rather amazingly, how Beaver’s description of plot points from the TV
show “24” directly influenced the introduction of new techniques at Guantánamo,
techniques that later were replicated by American interrogators around the
world. How could that happen?

The administration told a story which claimed that Diane Beaver’s legal
advice was the basis for the Haynes recommendation and the Rumsfeld approval of
the new techniques. That is false. When Jim Haynes wrote his memo of November
27, 2002, recommending blanket approval for 15 new techniques of interrogation,
and leaving three others open for future use (including waterboarding), he had
knowledge of the contents of the Department of Justice legal memo
from August 1, 2002, signed by Jay Bybee and written with the assistance
of John Yoo. That document provided Jim Haynes with the cover he sought, not
Diane Beaver’s legal advice. She was hung out to dry by Jim Haynes, in a manner
that was unbecoming of his office, deeply unfair to her and reflected what will
look to many  like a deliberate effort to
cover up what actually happened.

Even if I don’t agree with her October 11, 2002 legal memo, I
found Diane Beaver to be straight and honest. I met with her for many, many
hours. In the course of our conversations it emerged that “24” had played an
important role, in the sense of contributing to a climate in which the
governing assumption was that ‘torture works.’ The second season of “24” went
to air--and was broadcast around Guantanamo--at
the very moment in which the new techniques of interrogation were being
authorized. It sent out the signal that “torture works”. She told me the
program had “many friends” at Guantánamo. Of course, it turns out it also had
many friends in D.C.

One of the lawyers you focus on is Doug
Feith--though he makes clear in his interview with you that he was not
functioning in the Pentagon as a lawyer. The exchange you record with Feith
suggests he was distant from the decision process, and that he had a high
opinion of and supported application of the Geneva Conventions. I remember speaking with
military lawyers in 2003 repeatedly and hearing of their concern about Feith:
his heavy hand, his pressure tactics, and his contempt for the Geneva Conventions and anyone who attempted
to stand up for their application. What’s your assessment of Feith and his
claims?

In our system of modern democratic societies, lawyers have a key role to play.
They are the guardians--the gatekeepers--of legality. The rule of law requires
lawyers to exercise independent judgment, and to give dispassionate,
professional advice. That did not happen, at least in the upper echelons of the
administration, in the Departments of Justice and Defense. Politically
appointed lawyers--not the military, not the career civil servants--could be
relied upon by the politicians to do what was needed, reflecting an unhappy
convergence of ideology, incompetence, and weakness.

Doug Feith is a lawyer, although he was not serving the administration in that
capacity. He has a helpfully dodgy memory. During our conversation he spoke
with pride of his role in ensuring that none of the Guantánamo detainees should
be able to rely on Geneva.
He also recalled only having become involved in the new interrogation
techniques late on, when Haynes’ memo reached Rumsfeld. I pointed out to him
that the memo itself said that its author had already consulted Feith. His reaction? Merely to point out that I
had mispronounced his name. Following a lengthy conversation--which was
recorded and makes remarkable listening because of his well-developed sense of
self--my perception was clear: Doug Feith was deeply involved in the
decision-making process, fully supported it, and failed to address the basic
questions that one would have expected the Pentagon’s head of policy to be
preoccupied with.

If there was a “station master” for
the process of introducing the torture techniques, your book suggests that was
Jim Haynes. Clearly, his role was more focal to the process that John Yoo or
any other lawyer. Clearly, he also saw his role as that of an implementer, not
as someone giving detached professional advice. The most devastating pages of
your book are devoted to Haynes. You clearly feel that he lied to--or at least
consciously misled--Congress when he testified about the Yoo–Bybee torture memoranda
and how they were used. Did you feel that Haynes lied to you when you
interviewed him?

Jim Haynes emerges as a central player in The
Torture Team. He was involved throughout, at each stage of the
decision-making. I have come to appreciate that he has--at best--a
semi-detached relationship with truth. His propensity to mislead was evident
from his first public intervention on the issues I have addressed, in June
2004, when the administration relied on him and Alberto Gonzales to spin a
false narrative on the beginnings of the abuse at Guantánamo, and its
relationship to Abu Ghraib. The catalogue of untruths was added to during his
appearance before the Senate Judiciary Committee, in July 2006, when he was
still trying to get himself nominated to a federal Court of Appeals. It is an
interesting exercise to compare the account he offered on that day--as to the
circumstances in which he wrote his November 2002 memo--with what actually
happened. You might focus, for example, on when he first became involved and
what he did when the materials were at the Joint Chiefs. It will be for others
to form a view as to whether, and if so to what extent, he perjured himself.

I met with Jim Haynes on two occasions, in June 2007 and then in September
2007. He was under no obligation to meet with me. We talked openly and frankly,
and I presented him with many of the most important facts as I then saw them,
including the circumstances of his visit to Guantánamo in the period before he
wrote his November memo. Did he lie to me? That is a question that might be put
to him. If it ever is, his memory of our two meetings might be jogged by
directing him to the information set out at page 99 of The Terror Presidency, the book written by Jack Goldsmith, who
served as his special counsel from September 2002 until October 2003. On that
page is confirmation of what I was told before I first met with Mr. Haynes,
namely that he joined a delegation of the most senior lawyers in the
Administration (accompanied by Messrs. Addington and Gonzales, and a senior CIA
lawyer, John Rizzo, amongst others) that visited Guantánamo in late September
2002. That meeting confirmed Mr. Haynes’ early involvement in the process that
led to the adoption of new techniques of interrogation, far earlier than his
public narrative has indicated. Professor Goldsmith’s confirming account was
published in the period between my two meetings with Mr. Haynes.

New York attorney Scott Horton teaches at Columbia Law School.

By Scott Horton

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