Legal Village

Did interrogation lawyers pass the buck?

Posted 21/05/2008 by Bar Talk

Philippe Sands QC wrote Torture Team, his new book about the US Government's interrogation policy, as a kind of mystery. (The front cover even sports an endorsement from master spy novelist John Le Carré.) But Sands's tale is a uniquely legal kind of whodunnit. His question: who was really responsible for a controversial memo that authorised extreme interrogation procedures for prisoners at Guantánamo Bay?

The memo was signed by former Defense secretary Donald Rumsfeld on 2 December, 2002. It was written by William "Jim" Haynes II, the former general counsel of the US Department of Defense. Haynes released the memo in 2004.

According to Sands, Haynes has said in his public statements that the push for extreme interrogation procedures came from low-level military officers at Guantánamo. In particular, Haynes has maintained that the request to use the aggressive techniques came from Major General Mike Dunlavey, a judge and Army reserve officer who was then in charge of the interrogation unit at Guantánamo. For legal support, Haynes has said that he relied on an opinion written by Lieutenant Colonel Diane Beaver, the military lawyer assigned to Dunlavey's unit.

Sands doesn't buy this bottom-up narrative. Instead, he claims that senior Government officials in Washington DC were the ones who wanted interrogators to get tougher. But when Guantánamo began to hit the headlines, Sands says that the people at the top tried to put the blame on the people at the bottom.

The following is an edited version of Sands's conversation with AmericanLawyer.com. The first part of the interview appears here.

American Lawyer: What do you think John Le Carré saw in your book?

Phillipe Sands: He thinks it's a great thriller. He sent me a lengthy handwritten note - said he was gripped by it, couldn't put it down, read it all the way through cover to cover.

AL: You make two key claims in Torture Team. One is that top government lawyers signed off on something they shouldn't have. The other is that they tried to pass the buck.

PS: Yes. To put it another way, it's a book about a crime and a cover-up. The crime is the authorisation of interrogation techniques that violate international laws against torture. And the cover-up is the attempt to pass the buck.

AL: You repeatedly refer to a 25 September, 2002, visit to Guantánamo by David Addington, Alberto Gonzales, John Rizzo and Jim Haynes. It seems that no-one realised the significance of the lawyers' trip until now.

[Note: Addington was then counsel to Vice President Dick Cheney, Gonzales was counsel to President George Bush, Rizzo was deputy general counsel of the Central Intelligence Agency and Haynes was the Pentagon's general counsel.]

PS: That's absolutely right. And I hadn't fully appreciated the significance of that trip when it was first mentioned to me. I was alerted to the trip by Mike Dunlavey and Diane Beaver, who were at Guantánamo at the time. They both gave pretty consistent accounts of what happened. The visitors were led by David Addington and they discussed a range of issues. In particular, they wanted to know what the Guantánamo interrogators were doing to get information out of Mohammed al-Qahtani [the alleged "20th hijacker" in the 9/11 plot].

I've put myself in Diane Beaver's position and Mike Dunlavey's position and it is pretty scary. Some of the most powerful lawyers in the US Government descend on Guantánamo. These are busy men. Why are they coming down together? Even if nothing was said, certain signals were sent: "We're keeping an eye out on you. This is an important issue to us."

The significance of this trip is that, according to the administration's narrative, there's no connection between the memo written by Yoo and Bybee on 1 August, 2002, and the memo that Jim Haynes wrote for Donald Rumsfeld four months later.

[Note: The Yoo/Bybee opinion, which was later rescinded by the Justice Department, became known as the "torture memo" after it was publicly released. It said that the only interrogation prodecures which were illegal were those that caused pain equivalent to organ failure or death. The Justice Department withdrew the opinion in 2004.]

AL: I want to ask one thing. The 1 August memo was supposed to cover interrogations by the CIA, not by military officials--

PS: It doesn't say that.

AL: That's always been my understanding.

PS: I know - because they've spun that understanding, because the narrative has always been that the initiative for the military interrogation procedures came from the bottom up. But if you read the memo, it's not limited to the CIA.

And the crucial issue is what knowledge Jim Haynes would have had of the 1 August memo. That memo is addressed to Alberto Gonzales. It was reportedly influenced by the views of David Addington. A second memo written by Yoo and Bybee on 1 August, 2002, covered CIA interrogation techniques and was addressed to John Rizzo. So when the lawyers made their trip down to Guantánamo in September 2002, Rizzo had his memo. Gonzales had his memo. Addington was apparently involved with both. Are we honestly to believe that Jim Haynes was the only one in that group who didn't know anything about those two memos?

Once I made that connection, everything else fell into place. The opinion that Diane Beaver wrote for Jim Haynes was irrelevant. It didn't matter what she said because a memo from the Justice Department is binding on all of the US Government. So why did Haynes bother getting the memo from Diane Beaver? He got a memo from Diane Beaver because it was convenient to pass the buck.

[Note: Sands says that he conducted two extensive interviews with Haynes for his book but that Haynes declined to comment on the record.]

AL: You've said that you were in New York on 9/11.

PS: I was teaching at NYU. My class started at 8:40 in the morning. My wife had gone back to London the previous day with our two older children and left me with our youngest kid, who was one. I dropped her off with the nanny in Washington Square at 8:30 and went to teach. Normally I take a break in class. But that day I didn't and when we came out of class at 10:30, it was complete mayhem.

AL: You were in a bubble on 9/11?

PS: We were in a bubble on 9/11. It was weird, really weird. And what also happened was that the first plane had flown straight down the island and so Ruth, our nanny, fainted.

AL: Your nanny saw the first plane crash?

PS: Yes. She collapsed, she was so shocked. Our little girl wandered off and some NYU students found her. I've been attacked in Britain for being too sympathetic to some of the people in my book. But I recognise what happened in this country. I understand that an attack like that has a profound effect on a country and a country is entitled to be cut some slack in dealing with an issue like that. It has meant that there is less of a hard edge to this book than there otherwise would be because I myself lived through the trauma of that day.

But that doesn't excuse blaming others for what happened. That really got me. If the guys at the top had said to me, "Those were the circumstances then. We did what we thought was right. With the benefit of hindsight, we realise that we fell into error and we made a mistake. We take responsibility for that, now let's move on and get it right" - there wouldn't be a book here. But they're not willing to do that.