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Article Excerpt
CONTENTS
I Introduction II The Proscription on Torture and the Memo of 2 December 2002 III The Administration's Narrative A Exploring the Narrative 1 The Presidential Decision that the Geneva Conventions Did Not Apply 2 The Advice of Diane Beaver 3 Political Appointments 4 The Decision-Making Process B Refuting the Administration's Account C The Aftermath IV Revisiting Nuremberg: The Justice Trials and Lawyers' Responsibility V Conclusion Simple murders and atrocities do not constitute the gravamen of the charges in this indictment. Rather, the charge is that of conscious participation in a nationwide, government-organised system of cruelty and injustice in violation of every moral and legal principle known to all civilised nations.... The real complaining party at the bar in this courtroom is civilisation. But the tribunal does say that the men in the dock are responsible for their actions. Men who sat in black robes in judgement on other men. Men who took part in the enactment of laws and decrees, the purpose of which was the extermination of human beings. Men who, in executive positions, actively participated in the enforcement of these laws, illegal even under German law. The principle of criminal law in every civilised society has this in common: any person who sways another to commit murder, any person who furnishes the lethal weapon for the purpose of the crime, any person who is an accessory to the crime, is guilty.... How easily it can happen. There are those in our own country, too, who today speak of the protection of country, of survival. A decision must be made in the life of every nation at the very moment when the grasp of the enemy is at its throat. Then it seems that the only way to survive is to use the means of the enemy, to rest survival upon what is expedient, to look the other way. Well, the answer to that is: survival as what? A country isn't a rock. It's not an extension of one's self. It's what it stands for. It's what it stands for when standing for something is the most difficult. Before the people of the world, let it now be noted that here, in our decision, this is what we stand for: justice, truth and the value of a single human being. (1)
I INTRODUCTION
Many of you will recognise the closing scene from the 1961 Oscar-winning movie Judgment at Nuremberg, starring Spencer Tracey as Judge Dan Haywood handing down the judgment of a United States military tribunal in a trial against Nazi lawyers. The principle underlying the judgment was simple but significant: any person who furnishes the lethal weapon for the purpose of the crime may be guilty of the crime, and that can include the lawyer who furnishes legal advice.
The film was largely based on a real series of trials held in 1947 under the auspices of the US military tribunal in Nuremberg, known as the 'Justice Trials'. (2) The case of US v Altstoetter was later made into a film, in which the chief consultant to the writer, Abby Mann, was none other than Telford Taylor, who was the chief prosecutor in the Justice Trials and later Professor of Constitutional Law at Columbia Law School. To be sure, and this is to be stressed, it would be entirely wrong to draw a substantive analogy between what happened in Germany in the 1930s and 1940s and what has been happening more recently in the prosecution of the 'war on terror'. What is pertinent, however, is to consider the underlying principle: in what circumstances might a lawyer cross the line that separates bad legal advice from unprofessional (or unethical) legal advice, or the line that separates unprofessional advice from advice that may give rise to criminal responsibility?
Against the background of detainee abuse at Guantanamo Bay, watching Judgment at Nuremburg again after a gap of many years prompted a number of questions. What had motivated Telford Taylor and his colleagues--ironically enough in the US military--to go down the path of trying to make an example of the lawyers that the US military considered to be most responsible for the heinous crimes that had taken place? Could the principle apply to the most senior Administration lawyers who had drawn up, approved and overseen the application of new interrogation techniques that violated international laws?
II THE PROSCRIPTION ON TORTURE AND THE MEMO OF 2 DECEMBER 2002
In 2005, I published a book entitled Lawless World. (3) It described how the Bush Administration, often assisted by the Blair Government in Britain, had systematically undermined a great many rules of international law that the US had done so much to put in place. One chapter of that book addressed Guantanamo Bay, how the Administration had led the US military into an embrace of cruelty in the name of military necessity. In so doing, the Administration abandoned President Lincoln's notable determination, made in 1863, that 'military necessity does not admit of cruelty'. (4) This is reflected in a memo dated 27 November 2002, written by William 'Jim' Haynes II, the General Counsel to the US Secretary of Defense, and addressed to Mr Rumsfeld. Entitled 'Counter-Resistance Techniques', Mr Haynes recommended that the Secretary of Defense should authorise 15 new techniques of interrogation. (5) A few days later, on 2 December 2002, Mr Rumsfeld approved that recommendation. Alongside his signature he wrote: 'I stand for 8-10 hours a day, why is standing limited to 4 hours?' (6) This scrawled response to one of the recommended interrogation techniques--the use of 'stress positions', standing for periods of up to four hours--has given the memo a certain notoriety.
My new book, Torture Team, (7) tells the real story behind that memo, and ! will address some of the key issues raised by the memo. What were the true circumstances in which it was prepared? What was the real role of the senior lawyers in the Administration? And what might be the true nature and extent of their responsibility for the abuse that followed?
After the Second World War, the US led the world in creating a new system of international rules. The United Nations was created and, with it, new norms of international law to protect the fundamental rights of all persons. The Nuremberg Charters contributed to the development of international criminal law, followed shortly by the progressive development of international humanitarian law through the Geneva Conventions. (9) Common art 3 of those Conventions outlaws the use of techniques of interrogation which amount to cruelty, or abuses against human dignity, or torture. In 1984, the UN adopted the Torture Convention, (10) criminalising torture and complicity and participation in torture, and putting in place an elaborate system of universal criminal jurisdiction designed to snuff out the places of refuge that may be available to the torturer and their aides. That Convention caused the House of Lords to rule that Senator Pinochet was not entitled to claim immunity from the jurisdiction of the English courts in relation to acts of torture committed during his time as Head of State of Chile. (11) It opened the door to more widespread enforcement of international criminal laws.
This is an impressive body of international rules, one which had coalesced by the mid-1980s into an absolute prohibition on torture in all circumstances. Nevertheless, the events of 11 September 2001 have undermined the broad acceptance of that general prohibition. They have opened the door to a new path, as reflected in the Rumsfeld Memo. On their face, the techniques approved that day are plainly incompatible with common art 3 of the Geneva Conventions and with the Torture Convention, giving rise to the claim that war...
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