First, the Spencer Tracy “verdict” from “Judgement at Nuremberg” (1961).
Who will pay for the illegal abuse of detainees at Guantanamo? If violations of the Geneva Conventions — and specifically of Common Article 3, against torture, cruelty and “outrages upon personal dignity” — are “‘war crimes,’ punishable as federal offenses,” as Supreme Court Justice Anthony Kennedy wrote in the Hamdan case two years ago, who will prosecute them?
Will Americans and the US government initiate an examination of the record — and of our national conscience? Or are we waiting for a prompt from abroad — waiting, in effect, for Donald Rumsfeld or Antonio Gonzalez to get their version of the Pinochet “tap on the shoulder,” as they’re strolling on a sidewalk in London, Berlin or Mexico City?
Philippe Sands of Torture Team: “…doing nothing is not an option.”
In his book Torture Team and in our conversation, Philippe Sands aims such questions at the top tier of his own legal profession. Who will hold to account the lawyers who gave President Bush the very bad advice that the Geneva rules, the US Army manual on interrogation, and the long tradition against torture (President Lincoln’s order in 1863 was that “military necessity does not admit of cruelty”) did not apply to the Al Qaeda suspects picked up after 9.11? And then: what about the lawyers who gave Donald Rumsfeld a green light to introduce abusive interrogation at Guantanamo in the autumn of 2002?
Torture Team can be read as a fiercely accusatory extension of Jane Mayer’s argument in The New Yorker and her book, The Dark Side, that “but for the lawyers this would not have happened.” Philippe Sands brings to bear an English barrister’s perspective and a generous investment of shoe leather in the US. He interviewed a large cast of principals and credits the marvelous openness of American society for his access to (among others) Rumsfeld’s chief counsel William “Jim” Haynes; the first commanding officer at Guantanamo, Major General Michael Dunlavey and his counsel, Lt. Col. Diane Beaver; the Navy’s General Counsel who blew the whistle on enhanced interrogation, Alberto Mora; the Pentagon’s aggressive Undersecretary for Policy Doug Feith, and the apparently witless chairman of the Joint Chiefs of Staff, General Richard Myers. But then he turns scathingly to the judgment that ideology, and lawyers, drove the mission to create something new: a “legal black hole” in which designated persons would be stripped of their humanity and all their rights.
That is precisely what the system of rules that the United States had done so much to put into place after the Second World War was intended to avoid. It comes back to Spencer Tracy in Judgement at Nuremberg: the dignity of even a single human person is what our values are about. There are no legal black holes. The moment you go down that route you undermine the entirety of who it is we believe we are, and what it is we believe we’re doing… I think there was a conscious decision to remove international legal constraints (and U.S. legal constraints — after all, that’s why Guantanamo is outside the US) which would limit the ability of the administration to adopt new techniques of interrogation. The legal black hole was the removal of international constraints on interrogation as part of an ideological drive to increase executive power and remove the shackles of international law. It has failed miserably.
Philippe Sands in conversation with Chris Lydon, September 15, 2008.
The press and popular culture didn’t help us notice what was underway, Sands observes. Notably, the Fox TV hit, 24 (another Jane Mayer subject) was as insidiously wrong about the long-term issues as Judgement at Nuremberg was once eloquently right. Sands also makes you wonder about the elite legal establishment — most particularly Harvard Law School, training ground of principals like Alberto Gonzales and Jim Wright and home base of the inescapable advocate of “torture warrants,” Professor Alan Dershowitz. But the hard focus here is on the legal minds who used a devious process to create a lawless prison (seedbed, not least of Abu Ghraib) that became an even more monstrous symbol of American power out of control.
The choice we don’t have, Philippe Sands argues, is to do nothing about this stain on the American reputation, the American soul.