Human Rights Expert: U.S. Should Launch Torture Probe

Friday, June 26, is United Nations International Day in Support of Victims of Torture. And there are good reasons to think that -- within the United States, at least -- this annual observance may take on even greater salience than usual this year.

In March, a Spanish court initiated a preliminary criminal investigation of six former Bush administration officials for possibly violating international laws governing torture. In April, the Obama administration released several previously classified memos from the Department of Justice concerning CIA interrogation methods during the war on terror.
Earlier this month, a federal district judge in California ruled that a convicted terrorist, Jose Padilla, can sue a former Bush administration lawyer for drafting legal theories that led to his alleged torture.

Politics Daily contributor Delia Lloyd sat down with Philippe Sands to discuss some of these new developments. Sands is a professor of law at University College London who has litigated a number of prominent international human rights cases, including those against former Chilean President Augusto Pinochet and former Liberian President Charles Taylor. He is also the author of Torture Team: Uncovering War Crimes in the Land of the Free (Penguin, 2008), which investigates the origins and legality of the Bush administration's policy on torture. His answers have been edited for clarity.

PD: What is the basic charge against the Bush administration in the Spanish court?

PS: There are actually two cases pending in Spain. One concerns the so-called "Bush Six" (Former Attorney General Alberto Gonzales and five other former officials, including Under Secretary of Defense Douglas Feith and the Justice Department's John Yoo). They are being investigated for violations of Common Article Three of the Geneva Convention, which prohibits cruelty, torture and outrages against human dignity, as well as violations against the 1984 Convention Against Torture, which prohibits torture. The second case will include, as I understand it, both the Bush Six as well as a wider range of not-yet-specified individuals. Names circulating include individuals such as Condoleezza Rice, George Tenet, Dick Cheney and Donald Rumsfeld. A likely possibility, as I understand it, is that the second case will be folded into the first case to allow for a single seamless investigation. But this is all a matter for investigation.

PD: So there's a linkage -- is that conditional on what happens in the U.S. -- the Spaniards might shrink their own inquiry?

PS: There's an emergent principle in international and domestic law called complementarity. This means that you only get involved if the states most closely connected to a given case are not doing anything, refusing to do something, or are unable to do something. In both cases we're talking about here, the judges have written to Attorney General (Eric) Holder to raise a series of questions, including what steps, if any, the U.S. is taking to investigate these alleged cases of torture. My sense has always been that if the U.S. carries out a proper criminal investigation, other countries and other judges will back off. So the difficulty for President Obama right now is that "do nothing" is not an option, because other judges will step in. And I think that imposes at least a catalyst for domestic U.S. action.

PD: Given that both Attorney General Holder and President Obama have already declared that water boarding is torture, doesn't that enable the Spanish courts to proceed with criminal charges?

PS: It certainly eases any difficulty. I've focused on another individual who's had much less attention but is worth looking at: Susan Crawford. She was the head of the convening authority for military commanders at Guantanamo. She gave a remarkable interview to Bob Woodward right before Obama took office in which she said that Mohammed al Qahtani had been tortured, and because he'd been tortured, she'd decided to drop all charges against him. She's not a bleeding-heart liberal. She's a Bush (George H.W.) appointee, first appointed in the Reagan years. So for her to get off the fence and say, "Yes, this man was tortured" is hugely significant.

PD: Why does the Spanish court have jurisdiction to do this?

PS: Under these conventions, any state in the world is entitled to exercise jurisdiction in relation to crimes committed anywhere else in the world. But lest it be said by advisors to the Bush administration that this is an outrageous infringement of sovereignty, which was the last country to exercise universal criminal jurisdiction over the crime of torture? It was the United States. In January 2009, when a guy by the name of Chuckie Taylor -- son of Charles Taylor -- was sentenced in a U.S. court to 97 years in prison for crimes committed in Liberia and Sierra Leone, exercising jurisdiction pursuant to the 1984 Convention Against Torture. So the U.S. itself has applied the very same jurisdiction that Spain is now looking to do.

PD: But even if I accepted the premise that these people should be brought to trial, couldn't one make the case that we should be airing our own dirty laundry?

PS: I've testified before that it should be first and foremost up to the U.S. to sort this out. But if the U.S. doesn't sort it out, other countries will step in. Recall the Pinochet example. It was the arrest of Pinochet that finally forced the Chileans to come to terms with what happened and to begin proper criminal investigations that led to the loss of his immunity in Chile.

PD: If I gave you a crystal ball, where do you think all of this is headed?

PS: I think these cases will go on. I think it's likely that the U.S. will end up having to do something and once it does, the foreign investigations will go in pause mode. So the next 12-18 months is the likely time frame that I see. I wouldn't expect any major explosive developments happening tomorrow, unless, of course, Doug Feith or John Yoo decided to take a summer holiday in Tuscany. In which case you could imagine quite a lot of interesting developments.

PD: So, literally, if John Yoo took a holiday abroad, he could be arrested?

PS: At the very least, he and others are at risk of being asked in for questioning, but it may be more than that. Remember, we don't know if any indictments have been issued. And the way it works is that if an arrest warrant is issued, it's circulated all over the world. In those circumstances, if I were advising John Yoo, I'd say to him: "Take care."

Go back to the Pinochet case. Senator Pinochet was in the U.K. for medical treatment and his arrest warrant came completely out of the blue. His human rights advisor subsequently told me: "It never occurred to us that one day we'd find ourselves three and a half thousand miles away in this situation." This indicates that you can't ever predict what's going to happen.

PD: In the past month, some Spanish legislators have moved to curtail the Spanish courts' ability to pursue this sort of "universal justice." Are you concerned?

PS: First, it's only a recommendation by the Spanish parliament and it's pretty limited in its effects. And it wouldn't have any effect on this case because the changes wouldn't be retroactive and because you have Spanish nationals alleging that they've been abused. I think it's fair to say that this kind of case causes diplomatic difficulties for countries like Spain and Belgium. But the underlying issue here is that when the U.S. and the U.K. exercise these laws against Third Worlders, no one bellyaches. What people seem to object to here is that we're going against westerners and friends and allies. That's what's problematic.

PD: Let's switch gears and talk about the United States. President Obama's approach seems to be one of transparency, but not retribution. What do you make of that?

PS: I'm fascinated by President Obama's approach. I'm a great admirer of his and I think that what he's done thus far is pretty wise. He has released new documents that are devastating in their effects and also said that individuals (CIA officers) who relied on these legal memos in good faith will not be targeted for prosecution. And I think he's right to have said that, because the ultimate responsibility goes much higher up in the chain of command.

Remember that febrile weekend when Rahm Emanuel interpreted (the president's) words as saying "There will be no prosecution" on the (George) Stephanopoulos show. And then the next morning, Obama had a meeting with (the) king of Jordan and in the course of the meeting he clarified that for the "framers of the legal decisions" -- which I understood to be lawyers and policy makers as well as possibly politicians -- the issue of criminal investigations was not off the agenda. He said, "That's for the attorney general to decide" and he didn't want to prejudge it. I also think it's striking that the Obama administration has not come down on the Spanish judges like a ton of bricks.

PD: What would you like the administration to do?

PS: I think the administration has to do an investigation. I am concerned that criminal investigations in the U.S. right now would have a freezing effect on certain information coming out. So it may be best to start with a far-reaching, powerful bipartisan investigation, get the facts out, and on the basis of such an inquiry, determine whether or not there ought to be a criminal investigation.

PD: What effect does the Padilla lawsuit have on any of this?

PS: It's not a criminal suit, of course. So it won't stop criminal investigations of the kind taking place in Third World countries. But, it will contribute to the groundswell of views that something went wrong and something's got to be done about it.

PD: Do you agree with critics who argue that if we go ahead and start prosecuting government officials on criminal charges, no one will take bold moves anymore because they'll be too afraid of litigation?

PS: I have real difficulty with the idea that torture would be characterized as a "bold move." I have no problem at all with criminal investigations stopping these kinds of legal advices from ever being written again.

PD: But what if I said: "I'm not going to interrogate you because I might get prosecuted?"

PS: That's ridiculous. Interrogation is not prohibited by international law. There are plenty of techniques that are allowed and the U.S. has led the world in interpreting and applying the Geneva Convention and honoring them. It has some of the finest interrogators in the world -- I write about some of them in my book. Look, the U.S. is a nation of laws. If a crime has been committed, it doesn't matter if it's Diane Beaver at Guantanamo or John Bellinger in the State Department or George W. Bush in the White House. It doesn't matter who or what or why you did it. You will be investigated.

PD: You've said on several occasions that the problem isn't just the crime, it's the cover-up. Would you care to elaborate on any parallels to Watergate?

PS: I think that there were crimes and there was a cover-up. And the covering-up included creating the impression that all these actions started down at Guantanamo on the ground when the fact is, as I learned and as we now know conclusively, everything started at the very top and they made it look as if it came from the bottom. Remember that it took two to three years for the facts of Watergate to really begin to have an impact, and then middle America suddenly realized, "My word! Something serious has happened here!" That hasn't happened yet in this case. And it may not happen in the same way because a crime hasn't been committed against Americans and that's a very important distinction. But a head of steam is building up, and at some point one can't exclude the possibility that a line will be crossed and people will say it's time to act.

PD: You've repeatedly suggested that by sanctioning torture, the U.S. government has encouraged our enemies to engage in the very same behavior. Would the failure to launch a criminal investigation exacerbate this dynamic?

PS: President Obama has made it clear that the U.S. is a nation of laws and that includes a commitment to international law. And international law under the torture convention requires the U.S. to investigate. If he doesn't investigate it will be very difficult for him to lecture others on what they ought to be doing with relation to the commission of crimes. This whole thing goes to the very heart of what America is. The U.S. has been a global leader in international law. Since the Second World War, it has played the crucial role. And many in the U.S. haven't seen the damage that has been done by these actions to the country's great moral authority. I want the U.S. leading from the front -- showing the moral leadership that gave the U.S. the possibility of international rule of law. Because if the U.S. doesn't do it, no one else will.

PD: As a European, what do you see that Americans can't see about this issue because we are too close to it?

PS: I think the U.S. is still having trouble seeing that it crossed a line. And that in crossing a line, it associated itself with others who have crossed a line. And the single biggest point is that the U.S. is a powerful country, but it is not the only powerful country or force. It is not above the law and it is not bigger than the law. And I think that if the U.S. thinks that somehow it can get away with this, it's likely to find out it's misguided.