The legal evils of Guantanamo Bay

legalevils.jpgAlasdair Palmer reviews Torture Team: Deception, Cruelty and the Compromise of Law by Philippe Sands. Torture Team centres on a single document: a memo, signed by the former Defense Secretary Donald Rumsfeld, authorising the use of additional methods of interrogation on those interned at Guantanamo Bay. Taken together, Philippe Sands believes these amount to torture.

He believes that the memo holds the key to unlocking the Bush administration’s policy on the treatment of the non-American citizens it suspected of involvement in al-Qa’eda-inspired terrorism.

He thinks this policy, which involved torture and a retreat from the Geneva Convention, is both unique and uniquely evil.

It seems to me, however, that what is different this time isn’t the fact of torture: it is the attempt to make it legal. That attempt left a paper trail and it is the release to the public of that trail that has made this book possible.

It is based around Sands’s interviews with some of the key people involved. Not surprisingly, he was unable to get to Donald Rumsfeld or George Bush. Predictably, those lower down the hierarchy say that what happened wasn’t their fault: ‘Oh no, Sir, it wasn’t me. I didn’t do it’, seems to be the most common response.

But his interviews are none the less fascinating and reveal both the extraordinary openness of many Americans and Sands’s ability to sympathise with the dilemmas faced by the officials who had to implement the decisions taken by those at the top.

Still, Sands never lets his capacity for empathy get the better of his indignation at what he sees as the morally outrageous nature of the decisions taken.

He draws a comparison between the lawyers in the Bush administration and the Nazi lawyers who worked for Hitler. He recognises that there are significant differences between the two, but it is a measure of his passionate opposition to the Bush administration that he is willing to entertain the parallel.

In this case, his passion may have got the better of his judgment. Sands says that the Bush administration’s lawyers justified their advice (for example: the Geneva Convention does not apply to enemy combatants) by saying that it was necessary to protect national security. He points out that Nazi lawyers used ‘national security’ to justify the ‘evacuation’ of Jews.

But this of course does nothing to show that the Bush administration’s lawyers were or are like Nazis, unless it shows that all lawyers, who ever work for any government, are like Nazis, because they all, at some point, invoke ‘national security’ to justify government policy.

Is there any merit at all in the idea that protecting national security can legitimately change the policies it is reasonable for the government to endorse?

Almost everyone thinks that the exigencies of war require some changes to what the state is legally entitled to do: pacifists take the ‘absolutist view’, but then they do not believe that it is ever justified for a state, or an individual, to get involved in war.

Curiously, Sands does not address this critical question directly. But he assumes that anyone who thinks that there can be a trade-off between security and justice must be guilty of either bad faith or moral badness.

That’s why he believes the lawyers who advised President Bush that the Geneva Convention did not apply to ‘captured enemy combatants’ should face prosecution for war crimes.

The absolutist position, however, is very hard to defend in theory, let alone to adopt in practice. The lawyers who believe that 9/11 was a declaration of war by a new kind of enemy, and that there need to be changes in the way the American state operates if it is to protect its people, do not have to be malign.

Many would say that a government that did not take a similar position was criminally neglecting its most important duty: to protect the people.

It is difficult, therefore, to accept that the ‘Rumsfeld memo’ authorising additional techniques of interrogation has the totemic significance that Sands gives it. It was rescinded within weeks of being signed, and of the 24,000 interrogations conducted at Guantanamo, only one was conducted in accordance with its provisions.

Do the techniques that the Rumsfeld memo endorsed amount to torture? That is a matter of definition, and torture, as Sands points out, does not have a hard and fast definition, despite the attempts of lawyers and doctors to give it one.

The real issue is not whether depriving someone of sleep or pouring water on his head or ‘mild non-injurious poking’ (to quote one permitted technique) amount to torture, but whether it would ever be acceptable to endorse such techniques if they do.

I am not sure that even Sands would give an absolutely negative answer to that question. There surely could be circumstances in which such techniques were justified.

Whether they were justified in the only case Sands records them as being used is much harder to decide. He concludes that they were not, principally because he follows international law’s absolute prohibition on torture.

But that prohibition does not make much sense when international law unambiguously allows the state to kill people in order to ‘protect national security’. Thus, according to international law, if the state kills people to protect national security, it does nothing wrong, whereas if it merely injures them (by subjecting them to ‘mild non-injurious poking’ for example, or depriving them of sleep), it does something unforgivable – a result many think is absurd.

That and other absurdities may have been what motivated Bush’s lawyers to look for ways round international law.

Sands insists that any such attempt threatens the rule of law itself. He attaches great importance to the adage ‘the rule of law, not of men’. But his reliance on that adage conceals the reality that all rule is of men: the law does not implement itself, and there is no divine revelation as to what the law is. People have to interpret the law.

We have a procedure for saying whose interpretation will count – but that does not alter the fact that ‘the law’ does not solve our ethical problems for us, nor absolve us from the task of deciding which parts of it are wrong. I heartily recommend reading this book. But bear that point in mind when you do so.