In 'Torture Team,' An Administration Accused

DATE June 19, 2008 ACCOUNT NUMBER N/A
TIME 12:00 Noon-1:00 PM AUDIENCE N/A
NETWORK NPR
PROGRAM Fresh Air

Interview: Attorney Philippe Sands talks about interrogation
techniques and how the lessons learned from Britain's handling of
the IRA could teach Americans how to proceed with the aftermath of
Guantanamo
DAVE DAVIES, host:

This is FRESH AIR. I'm Dave Davies, senior writer for the Philadelphia Daily
News, filling in for Terry Gross.

This week the Senate Armed Services Committee grilled former military lawyers
on exactly how the government concluded in 2002 it could legally use harsh
interrogation techniques on detainees at Guantanamo Bay and other US
controlled prisons. Few people know more about that subject than our guest,
international human rights attorney Philippe Sands. His new book "Torture
Team" concludes the effort to get legal clearance for tough interrogation
methods like waterboarding came not from frustrated commanders in Guantanamo,
as Bush Administration officials claimed, but from top officials in the
Pentagon and the White House.

I spoke to Sands earlier this week, only days after the Supreme Court gave
prisoners at Guantanamo access to federal courts to challenge their detention.
Sands has worked on several high-profile cases, including the extradition of
former Chilean dictator Augusto Pinochet. He's also a professor at University
College London and author of an earlier book "Lawless World."

Philippe Sands, welcome to FRESH AIR. We had a far reaching decision by the
Supreme Court last week about the detainees at Guantanamo. The Bush
administration, of course, has long held that these are non-state actors,
combatants, not entitled to the protections of the American legal system. The
court apparently ruled that they do have a right to challenge their detention
in American courts. Give us your take. What is the import of this ruling?

Mr. PHILIPPE SANDS: Well, it's very significant. It's been picked up all
over the world. It's the third defeat on the trot by the administration. It
may be the most important because this is one that can't be fixed without
amending the constitution. And essentially it's saying that these individuals
held at Guantanamo have a right of access to the federal courts. It's far
reaching, of course, because it means that no doubt many of these people will
now go to the federal courts. Although as I understand it, it won't have any
effects for the existing military commission proceedings against five of the
individuals which just started last week.

DAVIES: Right, and I wanted to ask about that. There are a small number of
the detainees, of the original 750 or so, are actually charged with war crimes
and that are being tried not in civilian courts but by military commissions.
How fair a trial can they expect? Are you troubled that those military
commissions remain the form for adjudicating their guilt or innocence?

Mr. SANDS: I am pretty troubled about the way those military commissions are
functioning. There are a number of problems with them. For example, it's
normal in our system of justice not to take any account of material that may
have been obtained by torture or through coercion. And some of the material
in these proceedings will be allowed which has been obtained in that way. I
think it's important to recognize that the United States is fully entitled to
take proceedings against individuals who have breached international laws, who
have committed war crimes in relation to the United States. The problem is
not that objective. It's how it's been implemented.

DAVIES: Give us a sense of how this process has actually worked?

Mr. SANDS: Well, I think that there are a lot of people within the process
who've expressed concerns about how it is functioning. I followed, in
particular, one of the proceedings which concerned a chap that I wrote about,
Mohamed al-Kahtani. In February of this year, the Pentagon announced they
were bringing charges against him, along with the five others who they have
proceeded with, for war crimes, for targeting civilians for murder. And then
rather surprisingly out of the blue a couple of weeks ago they just dropped
the charges. And I think that's indicative of a process that is deeply
flawed. And I think we all sort of have the suspicion that they're speeding
them up in order to get rid of them before the administration comes to an end
and before there's a hand over to the next presidency. And that isn't the way
to do justice, and it's not the way to deal with these terribly important
issues.

DAVIES: When you say speeding them up to get rid of them, what do you mean?

Mr. SANDS: Well, I wonder, as I think many people wonder, why it is that
we've started these proceedings now in some considerable haste in relation to
the five individuals who are before the military commission. The
administration of President Bush comes to an end, as we know, in about six
months time. And I think what I've picked up is that the hope is within the
administration that they can charge and convict and sentence before President
Bush leaves. Of course, we know from other reports that those in the upper
echelons of the administration, including Mr. Rumsfeld's former lawyer Jim
Haynes, have expressed the view that this is one set of proceedings in which
there won't be any acquittals. And it's very unhelpful, I think, for those
kinds of statements to be made and not, I think, what we're used to or what we
expect. So the whole process of military commissions sort of sits in this
cloud of unhappiness as to individual decisions that have been made and the
prospects for fair trial. It's very troublesome.

DAVIES: If the intent is to get these folks tried and convicted quickly
during the remainder of the current administration, why would they drop
charges against this detainee you mentioned, Mohamed al-Kahtani?

Mr. SANDS: Well, the timing on Mohamed al-Kahtani is very interesting.
Initially they had announced charges on the 11th of February of this year. I
then wrote an article in Vanity Fair which came out on the 2nd of April and
that was followed by hearings before the House Judiciary Committee and then
the publication of my book. A week after the publication of my book, they
announced, without giving any reasons, the dropping of all the charges against
Mohamed al-Kahtani. And what I understand is that the view was taken, given
the abuse that he'd been subjected to, was that he had become unprosecuteable,
and that any proceedings that might be held against him would in effect become
proceedings about the treatment he'd been subjected to by the administration.
And so they just dropped it. It was a real bombshell, I have to say.

DAVIES: So in other words, facing the prospect of a trial even before a
military commission at which his treatment in interrogation would become
widely publicized and an issue, it appears they decided to simply drop the
charges.

Mr. SANDS: It does indeed appear that they simply decided to drop the
charges. What's so staggering about this is this is not just any individual.
The gentleman concerned, who's detainee 063, who has the name Mohamed
al-Kahtani, is said by the administration to be the 20th hijacker. In other
words, he's the guy who turned up at Orlando airport in August 2001, it is
said, to be met by Mohamed Atta, and then was refused entry to Orlando. He's
sent back to the Middle East. He turns up in Afghanistan in November, is
caught, sent to Guantanamo in February 2002. And then in June 2002 they
discovered that he's the very same guy that they have refused entry to the
previous year at Orlando airport and they put two and two together. They say
he's the 20th hijacker and they then decide this guy is not broken under
normal techniques of interrogation, they're going to move to more aggressive
techniques. So he's not just any old person. He has a particular
significance in the whole scheme of things. And that's why a decision to drop
charges against him seems very staggering.

DAVIES: If he is so dangerous, and if they have dropped charges, what happens
to him now?

Mr. SANDS: Well, that's an excellent question. Who knows? I mean, what are
the options? One option is that he just remain where he is for the rest of
his life or in some other place if Guantanamo is shut down. It is possible
under the Geneva Conventions to have security detentions. In other words, to
hold people until the end of a conflict because they pose such a threat. He
is by all accounts, I've not met him, but by all accounts of those who have
met him, rather a broken individual and it's not immediately clear that he
poses a serious threat. The other option, of course, is to do what's happened
to so many of the other detainees, whether they are innocent or not, is to
release them. That's happened to all the British detainees. They all live
now back in the United Kingdom. They've all been released. And I somehow
think that's unlikely in relation to an individual who's a Saudi national and
who has this aura hanging over him of the 20th hijacker. I think it's very
difficult to justify releasing him in those circumstances. So they're going
to have to come up with something.

DAVIES: Give us just a bit of a context here, there were nearly 800 people
housed in Guantanamo at the height of its activity, I guess, in 2002. More
than 500 have been released. What do we know about how many of these folks
were mistakenly detained and kind of what their real crimes, if any, were?

Mr. SANDS: Well, I think there's no doubt that some of the individuals
who've been held at Guantanamo are problematic individuals and in the sense
that they have launched attacks against the United States in ways that may
breach international laws, or they may have been involved in planning attacks,
or indeed they may have been involved in actual attacks. But I think the best
sense that I have from the vast majority of people that I spoke to is that the
great majority of people don't actually pose a threat to the United States.
I've met a few of them who are individuals who were caught up completely
accidentally, traded, they were sold to the Americans by the Pakistanis. I'm
thinking of a German detainee by the name of Murat Kurnaz who ended up
spending five years in Guantanamo. And in a sense, my best source of
information is the guy who was the combatant commander at Guantanamo in that
crucial first year, name of Mike Dunleavy, who I interviewed on numerous
occasions, he described to me how very early on he formed the view that most
of the people at Guantanamo were completely useless individuals who posed no
threat to the United States. And when he went to the Pentagon and said we
need to get rid of these people because they're taking up valuable space, he
was met with the response, `No way. We're going to hold on to them. We don't
admit to error. Everyone's going to stay.' And so I think there was early on
knowledge that errors had been made, but sort of hubristic desire not actually
to own up to it. As a result of which a great number of people have remained
unnecessarily and a great deal of harm has been caused to the reputation of
the US.

DAVIES: Well, Philippe Sands, I want to talk a little bit about what happened
in Guantanamo and the legal authority for it and to give us some of the sense
of the context. A key detainee who you've mentioned is a Saudi named Mohamed
al-kahtani.

Mr. SANDS: Right.

DAVIES: He was the guy who they argued was the 20th hijacker. And it was the
frantic efforts to get him to talk more that seemed to have led in 2002 to the
efforts to get legal authorization for more aggressive interrogation
techniques. And you write in your book about what actually happened to him
once the decision was made to be more aggressive in interrogating him. Give
us a sense of what he went through, a couple of days of his interrogation.

Mr. SANDS: Well, he went through what they call enhanced coercive
interrogation. I would call it torture, having discussed it with various
clinical psychiatrists who've been over his interrogation log. And that
happened over a period of 54 days. It began on the 23rd of November, 2002.
It ended, following the intervention of a number of people who objected
vigorously to this in the US military, in early January 2003.

The center of gravity of the techniques was really to humiliate him and
degrade him to the point that he would break. So they would use, for example,
techniques of making him stand naked for extended periods of time. They would
tape to his body pictures of 9/11 victims. He would be touched and poked by a
semi-clad female military officer, a dog would be in the vicinity growling at
him. In fact, at one point, I think he was asked to perform dog tricks and to
growl aggressive noises towards al-Qaeda people, and to growl gentle noises
towards victims of 9/11. He was subjected to continuous noise. He was
subjected to very great extremes of temperature to the point that at one
stage, in early December, he became subject to severe hypothermia and had to
be hospitalized.

What I think was most striking about all of this to me was throughout this
entire rather shocking process, doctors were in evidence, medical doctors were
in evidence and were checking essentially that he continued to be fit to go
through this process.

DAVIES: You know, I think listeners, when they hear each of those things
individually, might think, `Well, you know, that's not pleasant but it doesn't
quite sound like torture.' Is it the combination and cumulative impact of
these over a long period of time that really takes it toll?

Mr. SANDS: Dave, that reaction, frankly, was the reaction that I first had
when I went over this. And it was only when I had the benefit, I mean, the
techniques look shocking in that way. But you think to yourself, `Well, this
isn't, you know, pulling fingernails out type of stuff. It doesn't reach that
level.' When I sat down with a clinical psychiatrist who's a specialist in
trauma, who took me through the whole interrogation log, she marked it up in
fact with these multi-colored pens. And in particular she was looking for
signs of distress, and everywhere she found signs of distress she marked that
in blue. And by the end of the process, the 80 pages or so were absolutely
marked up in blue all over. It's the combination of techniques.

To take one example, sleep deprivation. Over a period of 54 days he got no
more than three or four hours of sleep in any 24 hour period. In other words,
some extensive interrogations over 20 hour periods. That type of sleep
deprivation, I'm told by people down at Guantanamo who objected to these
techniques, would render an individual within four or five days spouting
complete rubbish. We would not be able to cope with what he went through in
terms simply of sleep deprivation. And even in those three or four hours
where he was allowed to sleep, he was woken up, there were loud noises played,
there was pop music being played. And within four or five days, as it was
explained to me, he will have been broken.

So it's the cumulation of these techniques without any limits being placed,
being used over extended periods of time, would have left him in a situation
where, frankly, he would not really have been able to provide meaningful,
reliable information even if he had any to give.

DAVIES: And what do we know about the effect on al-Kahtani?

Mr. SANDS: Well, we know that it left him in a shockingly bad state. I
mean, there are plenty of accounts of him being spotted curled up in a fetal
position. We know from the interrogation log the distress that he went
through. And I know, as I've described in the book, from having spoken to the
head of his exploitation team, that nothing meaningful came out of this. In
fact, that's no surprise at all. There was a tremendous battle that went on
down at Guantanamo between a small group who were in favor of this, who were
essentially being pressurized from the top, from Donald Rumsfeld's office
directly and many others who had real experience in interrogation, clinical
psychologists with the Naval Criminal Investigation Service, officers with the
FBI who strongly objected. And their objections were not just that these
actions were illegal but that they wouldn't produced meaningful information,
that it didn't work, it didn't make sense to put this individual through those
techniques at this stage even if he had any information.

DAVIES: It's interesting that when you appeared at a congressional
subcommittee in May, you said that the British experience in dealing with IRA
attacks in Northern Ireland was instructive. On this particular point, what
lesson do you draw from that experience about inflicting pain and discomfort,
approaching torture in interrogating prisoners?

Mr. SANDS: The British experience, in particular as you've mentioned, I
think is a relevant one. In 1971, the British moved to using five techniques
of interrogation. They're actually very similar to the techniques authorized
by Donald Rumsfeld: hooding, stress positions, sensory deprivation, sleep
deprivation and so on and so forth. They didn't last for very long. They
didn't last for very long because, firstly, it soon became clear that they
didn't produce any useful, reliable information. But secondly, it became even
clearer that they were a recruiting tool. They were used as a recruiting tool
for those, if you like, who were objecting to Britain's actions and to
Britain's involvement in Northern Ireland.

And interestingly, after that congressional hearing which just took place a
month ago, I visited Northern Ireland. I went to Belfast to talk about my
book. And during the course of the session, a lady at the back of the room
put her hand up and described to me, she said, `I was in the IRA in 1971.' And
in that period she was interned. And she said, `I wasn't subject to those
techniques, but in fact my colleagues, many of my friends were.' And it was
the best recruiting tool that we could have.

And the British government takes the view, I think along with many, that the
use of those techniques combined with other things extended the conflict with
the IRA by more than 10 years, probably more than 15 years, and made it much
more difficult to resolve the issues. And I fear that that's exactly what's
happened here. So that Guantanamo, Abu Ghraib, Kandahar, Bagram have become
iconic. They've become emblematic. If you go to capitals and cities in the
Middle East, if you go to Cairo, to other places, you will see pictures of
these types of abusive events. They're used to recruit, and that is
something, it seems, the administration never turned its mind to consider.

DAVIES: You told members of Congress that because of the experience with the
United Kingdom and Northern Ireland that you won't find British officials
using the expression "The War on Terror." Why?

Mr. SANDS: That's right. You won't even find former Prime Minister Tony
Blair or current Prime Minister Gordon Brown using the expression war on
terror.'Again it comes from the experience with the IRA. The formal words war
on terror elevates the individuals who were involved in the struggle then
against Britain, now against the United States and Britain, to warriors. And
by elevating their status to warrior, the feeling is that you legitimate in
some way their actions. These are serious criminals. They're bad criminals
and they're not warriors. And the view has been taken by the British that
we're not going to elevate their status and give them that type of
characterization. And I think it's the right call. There are exact parallels
with what happened with the IRA in terms of their wanting prisoner of war
status, their wanting to be treated under the Geneva Conventions in particular
ways, and the British government took a view long ago that that was not the
way that they were going to go and that they would be subject to a process of
criminal enforcement in order, if you like, to delegitimize the struggle that
was taking place.

Whether it worked or not, I mean, is for others to decide. But here it seems
that very soon after September 11th the decision was taken to move to a
characterization of the war on terror. And I think it was a big mistake
because it has transformed what is a serious threat into a threat involving,
if you like, warriors on the other side. And coming back to a point I made
earlier, that tends to help in recruitment.

DAVIES: You know, when you made these points before Congress, you were
challenged by another attorney who said that, `In fact, the tough
interrogations of IRA members by the British in 1971 and '72, however
distasteful, squeezed out the names of approximately 700 IRA operatives thus,
assisting the British in their effort to find terrorists and root them out of
the population.' Does he have a point?

Mr. SANDS: He doesn't have a point. He's talking out of his backside, I'm
afraid. And there's no evidence to show that at all. I've met with people
who were interrogators in that process. I've met with people who were in the
British army in that process. It was not felt to be helpful. In fact, that
is why it was dropped very, very quickly. It was another one of what I
thought of as sort of "Monty Python" moment of those hearings. That was one
of them. When you have a witness who's really talking completely off the top
of his head. And part of the approach of those who were really pushing for a
move to coercion is to simplify it, to become a historical, to just stop
looking at what actually happened in reality and literally just to make things
up in order to get through the day and to justify what is unjustifiable.

DAVIES: Even if you decide that you're going to treat detainees humanely when
you interrogate them and adhere to, you know, past practices which are built
on building rapport rather than coercion and inflicting pain, you do have this
issue of what you do with folks who are accused of terrorist acts. And, you
know, in the United States what they say is that we can't afford these folks
all of the protection of the American legal system because we don't have all
of the prosecutorial and investigative tools that we have in the United States
to look into criminals. It's a very different circumstance. You may not be
able to meet all the burdens of proof you would have in a civilian court. And
I'm wondering, how did the British deal with that issue, the detention of
people accused of terrorist crimes, who they felt they couldn't necessarily
prove by civilian court standards but whom they felt were too dangerous to
release?

Mr. SANDS: Basically the approach taken by the British is to distinguish
between two different types of situation. One type of situation is where you
are truly involved in some sort of armed conflict. So for example, the
situation now in Afghanistan, the situation in Iraq. And in those
circumstances the rules are clear, there are very stringent limits that you
can place on interrogation. The other group of people, people caught up in
Pakistan or, you know, picked up in different parts of the world and then
flown into Guantanamo or Kandahar or Bagram for questioning and so on and so
forth, you would take through the normal criminal process. And it may well be
amended to take into account the situation we now face. So for example, in
the English context we do have a series of secret hearings, but everyone is
entitled to counsel. Everyone has their barrister, has their lawyer to help
them out. Some of the evidence is not open evidence and so can't be looked at
in accordance with the normal rules in order to protect sources, in order to
make sure that material doesn't emerge into the public domain.

It's a very difficult balance to strike, and I think what's really gone wrong
is that these issues were never fully thought through. And what ought to have
happened is a more collaborative effort. What do we do with these people?
Are the rules adequate? If they're not adequate, how can we collectively
address them? And the failure to do that, I think, is what's got the US and
Britain into a very real mess right now.

DAVIES: You said something intriguing in your congressional testimony. You
mentioned that you advised foreign governments, and that once the president of
another country referred to one of the memos from the Bush administration
which endorsed aggressive interrogation techniques. Could you describe that
incident?

Mr. SANDS: Yeah. No, well, I mean, I wear different hats. I teach at the
university, but I'm also a barrister, which is a practicing lawyer. I work in
the field of international law, so most of the clients that I work for are
governments. So frequently I come into conversation with senior government
officials, with presidents, with foreign ministers, with ministers of justice,
with attorney generals; and one of the things that struck me in the period in
particular after 2004, when all of these memos, the legal advices, the torture
memos by John Yoo and Jay Bybee and other documents came into the public
domain, was how far that had reached around the globe.

You know, we live in this extraordinary globalized world now where documents
don't just stay within Britain, within the United States. They travel
instantly by Internet and they travel into the hands of seedy government
officials. And I've had conversations with more than one person, actually,
with more than one foreign minister in which they've talked about these memos.
On one occasion at least one of these people got out a memo, they had a copy
of it. And the basic line that you get is, `Look, if the United States is
getting these legal advices now and saying these things are alright to do, why
can't we do them to?'

And frankly, it's a powerful point. It's very difficult to resist that point.
I've always held the United States in the highest esteem as a country that is
strongly committed to the rule of law and which has had a tremendous moral
authority in saying, `We don't do that kind of stuff.' And the terrible
tragedy of these memos and that dark period is that they have migrated into
the hands of people who now say, `Well, Americans do it. We're going to do it
also.' And I think that's a long-term problem that is going to take us many
years to overcome and recover from.

DAVIES: And what was your role in advising?

Mr. SANDS: Oh, I advise, I mean, on a whole raft of different issues. My
practice area is extremely wide so it could be boundary disputes, it could be
foreign investment disputes, it could be trade disputes. In some cases it
could be, you know, environmental disputes. What I'm not doing, just to be
absolutely clear, is I'm not advising on what techniques of interrogation they
can and cannot use. And I suppose that is the most curious thing of all. I
can be there talking about issues that have absolutely nothing to do with
interrogation techniques and out of the blue I'll be asked, `Mr. Sands, what
do you think about this memo? What do you think about the memo by Jay Bybee
or John Yoo on such and such issue? And if the Americans are moving to
waterboarding, why can't we move to waterboarding?' In fact, I had a very
curious conversation once with a very senior representative of the Bush
administration. And I put it to him, `Didn't it occur to you as you went to
waterboarding that if you justify the use of waterboarding others are going to
justify the use of waterboarding against American soldiers?' And he had no
answer. There is no answer. It's the, you know, shows the sort of
hopelessness of the argument.

DAVIES: You know 10 years ago you were involved in a case where a high
ranking government official, former head of state, was called to account for
allegedly torturing and murdering citizens of his own country and others.
That was the Chilean dictator Augusto Pinochet. Remind us, why decades after
his alleged crimes he was arrested in London.

Mr. SANDS: Well, the decades after point, I think, is an important one
because these things linger and they then have explosive little consequences
in ways that are entirely unforeseeable. He came to London in October 1998
for medical treatment. He was a great friend of a former British prime
minister, Margaret Thatcher, and he felt that Britain was a friend of his in
which he could gain, you know, he was safe and he would gain serious medical
treatment for whatever illness he had at the time.

One night, on a Friday, it was the 16th of October, there was a knock on his
door and a number of police officers came in and arrested him. And they
arrested him because a Spanish prosecutor by the name of Judge Garzon had
issued an arrest warrant for allegations of torture, and indeed a whole lot of
other crimes, carried out in Chile in the period 1973 to 1990. So much, much
earlier on. And the significance about those acts, the acts of torture and
related acts, is that they fall within something called universal
jurisdiction. That's to say they are international crimes which any country
in the world has an obligation to prosecute if an individual turns up in their
country, or to extradite the person to a place where that person will be
prosecuted. And so Pinochet arrives in the UK, a Spanish prosecutor makes the
request, and the British authorities have no option but to take action on the
Spanish request, and there then followed 18 months of legal proceedings in
which the decision was taken that he could, in fact, be extradited to Spain to
face trial for allegations of torture. But, in fact, bad health cut in and he
was sent back to Chile.

But the significance of the case was it established the principle that even a
former head of state who is alleged to have committed torture will not be able
to gain immunity from the jurisdiction of courts. And that has had a
tremendous freezing effect on the travel of individuals who are alleged to
have engaged in acts of this kind.

DAVIES: Well, that gets to a really critical question here. I mean, if it's
been established in the Pinochet case that one who commits crimes against
humanity is vulnerable to prosecution anywhere, and if it is becoming clearer
with your work and other things that are happening now, including new hearings
in Congress that high ranking government officials were involved in
authorizing or ordering techniques which could be described as torture, are
any of the officials of the Bush administration vulnerable to prosecution?

Mr. SANDS: I think they're extremely vulnerable to investigation. You know,
last week a group of 56 congressmen wrote a letter to the attorney general
asking for the appointment of a special council to look at the suggestion and
the evidence that violations of criminal laws, US and international, had
occurred. I don't know where that initiative is going to go, but it shows the
extent to which there is now a broad recognition that something went wrong,
that a crime was committed. And the fact that a crime was committed you don't
need to take from me. The Supreme Court ruled in one of its earlier
decisions, Hamdan vs. Rumsfeld, that the Geneva Conventions applied at
Guantanamo, Common Article 3, which prohibits outrageous and cruelty and
torture applied. And the consequence of that, of course, is that the
individual we were talking about earlier, Mohamed al-Kahtani, his
interrogation plainly violated Common Article 3, and it seems a war crime has
been committed. And it may well be that torture was committed, in which case
individuals associated with that decision are, not just theoretically, exposed
to serous risk of investigation.

And that goes right to the top. It goes to Mr. Rumsfeld, it goes to Mr.
Rumsfeld's lawyer, Jim Haynes, and others down the chain of command who played
an active role in authorizing the techniques of interrogation; which is why
the issue of where it all started becomes so important, and why the
administration's narrative that it started at the bottom and then just
trickled up is, I think, necessary to explore much further.

But the bottom line is very, very clear. If you engage in torture, if you are
complicit in torture, if you participate in torture, you expose yourself to
the risk of investigation anywhere in the world. And that is a risk that
applies to anyone of any nationality, and being a former administration
official doesn't help. So the immunity that the administration has tried to
create with the Military Commissions Act will have no effect outside the
United States, nor will any possible pardon by President Bush, which
apparently is being suggested in relation to some of these characters. That
too won't have any consequence outside of the United States.

DAVIES: Well, let's just be clear about this. Are you saying that if someone
in any country in the world judges that war crimes have been committed and a
former official of the Bush administration a year from now travels to one of
those countries, they have the legal authority to detain them and try them?

Mr. SANDS: Absolutely. I mean, I can go further than that. One of the
chapters in my book right at the end describes the conversations I had with a
European judge and a European prosecutor very experienced in these issues. I
went to see them in the European capital. I laid out all the material. I
gave them all of the documents that I'd come up with. I showed them, you
know, the paper trail of decision making. And I asked specifically because I
was interested in particular in the role of the lawyers. I was amazed that
some of these lawyers had signed off on these techniques when they were so
obviously contrary to the United States' international obligations. Could
these lawyers be within the frame?

DAVIES: When you say within in the frame, you mean?

Mr. SANDS: Within the frame of criminal investigation. Could they be
subject to criminal investigation in a serious country outside the United
States for having been complicit in a decision which amounts to the
authorization of torture? And the answer to that question, after lengthy
conversation, was yes. And I think that it's very, very clear that if the
lawyers who authorized these techniques are subject to potential investigation
then most certainly the politicians who authorized them are in the frame of
potential investigation. And that goes very high. I mean, that includes Mr.
Rumsfeld, it includes Mr. Cheney, it even includes astonishingly Mr. Bush
because just a few weeks ago he gave a statement in which, if I read it
correctly, he appeared to be saying that these techniques were approved by
principles and that he signed off on them. And that appears to be an
acceptance of responsibility from the very highest levels of the
administration. So it's a very serious matter. And I assume they're just
proceeding on the basis that because they're from the United States no one is
actually going to do anything about it.

DAVIES: In your book "Torture Team," which looks at the Bush administration's
development of legal authorization for tough aggressive techniques of
interrogation in Guantanamo, you fly around the country and meet all kinds of
people who are involved, a common pleas judge in Eerie, who was a commander
there; but you also find a woman named Diane Beaver who was a military lawyer,
and hers is a fascinating story. What was her role?

Mr. SANDS: I'd come across her when I'd written my first book, "Lawless
World," back in 2004, 2005. I came across the legal advice that she wrote in
her capacity as the lawyer at Guantanamo who was selected to sign off on
interrogation techniques. She was the staff judge advocate, long standing
military lawyer. I read her legal advice and I thought it was ghastly and
awful and horrible. And I was, shall we say, pretty rude about it in "Lawless
World."

For this book I wanted to meet her, as I wanted to meet all the other decision
makers. And I tracked her down with the help of a friend in the State
Department. And I spent extended periods of time talking with her. I think
actually she's a decent and honorable person. And I still don't like her
legal advice, but what I discovered was that she was put in the position that
she should never have been put in. She described to me, `The president had
decided the Geneva Conventions didn't apply at Guantanamo. So when I went to
the rule book to see what interrogation techniques existed, the pages were
blank and I had to start from scratch.' And I have to say, in a certain sense,
I mean, I hope I wouldn't have come up with the advice she did; but in a
certain sense I have a sympathy for her having been put in that position. You
know, an individual with very limited experience on these issues being asked
to approve new techniques of interrogation that the US has never before used.

DAVIES: I think one of the most fascinating things about the Diane Beaver
story is that she struggles through, under great pressure, and develops these
techniques of interrogation which she suggests may be legal, assuming that
this will be passed up the line and reviewed repeatedly by more senior lawyers
in the military and in, you know, civilian command roles. And instead she is
it, right?

Mr. SANDS: No, Dave, this is the heart of the story because the narrative
that emerges from Jim Haynes and others is that they relied on Diane Beaver's
advice without...

DAVIES: Jim Haynes being the top Pentagon lawyer, right?

Mr. SANDS: Mr. Haynes was Mr. Rumsfeld's lawyer...

DAVIES: Right.

Mr. SANDS: ...the top Pentagon lawyer. He puts her document into the public
domain. He doesn't even redact her name. You know, the document is put out,
legal advice with her name on it. It's not blacked out. And so her name
becomes mud not only in the United States but all across the world and the
impression is created that it is her legal advice which was relied on.

Then she tells me her story. She was asked originally, on her account, to
sign off verbally. And she declined to do so. She decided that what she was
going to do was put her advice in writing in the expectation that as it went
up the chain of command, as it went up the decision-making process, more
senior and more experienced lawyers would be able to express a view on it, and
if it didn't pass mustard, someone would overturn it. That never happened.
And of course, now we know the reasons it never happened is it never got to
those more senior lawyers. The chairman of the Joint Chiefs lawyer, Jane
Dalton has described how Mr. Haynes intervened to basically short circuit the
decision-making process. And none of the military lawyers at the more senior
level who are experienced in these areas got a chance to review Diane Beaver's
work. So her plan, good as it was, did not succeed at that time.

Although ultimately I think it did succeed because if she had not put her
document in writing, people like me and many others would not have focused on
it and we would not have begun to dig away to uncover the truth of what has
happened. But essentially my view of Diane Beaver is that she should never
have been put in the position that she was put in, and she has been
scapegoated by people at the top and used as a convenient individual to
justify actions when legal advices from the Department of Justice and others
were, in fact, relied upon in the background to justify the measures that were
taken.

DAVIES: You know, the Bush Administration is on its last seven months. We'll
have a new president in January. What do you think we can expect then on
these issues?

Mr. SANDS: Well, that's an excellent question. The both remaining
presidential candidates have declared that they will be shutting down
Guantanamo. And of course we no longer have use by the military of aggressive
forms of interrogation. They have been outlawed. They have gone by the
wayside. What remains is the use of aggressive forms of interrogation by the
CIA and by related persons, private contractors working with the CIA.

There also remains those I've mentioned, the question of immunity for past
acts. And I think the single biggest issue that the next president is going
to have to face is going to be the question of what to do about the past. I
talked about this with the chairman of the Judiciary Committee, John Conyers,
after the hearings when I appeared last month. We had a lengthy conversation
about it, and I formed from him and many others I've talked with a view about
what's going to happen. I think it's much more likely that Senator Obama will
go far in seeking to get to the truth of what happened. I rather have the
sense that, given some of his recent statements, Senator McCain is going to
try to push a lot of this under the carpet, try to move forward in the right
direction but not put too much scrutiny on who was responsible because that
would force him, I think, to look at the upper echelons of the Bush
administration.

I hope that whoever is president will look in detail at what has happened,
because if the United States doesn't get its own house in order, other
countries are very likely to move to investigations of their own, including
criminal investigations about what happened. And I don't think that's a
desirable thing. I'd like to see the United States sort itself out, the
United States come to terms with what actually happened. And once those facts
have been established, then the question happens What to do with those persons
who are truly responsible if crimes were committed, as I believe to be the
case.

DAVIES: Well, Philippe Sands, thanks so much for speaking with us.

Mr. SANDS: It's terrific to join you. Thank you so much, Dave.

DAVIES: International human rights attorney Philippe Sands. His new book is
"Torture Team: Rumsfeld's Memo and the Betrayal of American Values."

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Review: Maureen Corrigan reviews "Say You're One of Them" by
Nigerian writer Uwem Akpan
DAVE DAVIES, host:

Nigerian writer Uwem Akpan has just published his first collection of short
stories, but he's already received much acclaim for a fledgling author. He
was a finalist for the Caine Prize for African writing, and two of his short
stories have been published in the New Yorker magazine. Book critic Maureen
Corrigan reviews Akpan's debut collection called "Say You're One of Them."

MAUREEN CORRIGAN reporting:

Remember Holden Caulfield's famously ironic literary fantasy in "Catcher In
the Rye"? The one about how when you read a book you love, you feel so
connected to the author you just want to call him or her up and talk and talk.
It's famously ironic, of course, because few fans have ever chatted with the
super reclusive J.D. Salinger.

Well, I flashed on Holden's fantasy after reading Uwem Akpan's short story
collection "Say You're One of Them." I wouldn't claim I loved the collection,
that's too happy, too easeful a word to use in reference to these despairing
stories. And fortunately for me, I don't feel connected to Akpan. His world
is one in which atrocity is commonplace. The unthinkable is the every day.
No, I feel the naive urge to call Akpan up and talk and talk; because judging
from his life and work, I think he's someone especially suited to respond to
the million dollar theological question. That is, `Why does God permit evil
to flourish in the world?'

You see, Akpan is not just an already acclaimed new Nigerian writer on the
Anglo-Afro literary scene. He's also a Jesuit priest. All of his stories are
told through the perspectives of children. A Kenyan boy who lives with his
family on the streets and sniffs glue to tamp down hunger. A Christian girl
in Ethiopia who's abruptly torn from her Muslim best friend. A Rwandan girl
who witnesses her Hutu father forced to machete her Tutsi mother.

Evil is gleefully triumphant in these stories. Human society is chaos; and
children, its lightest, most fragile members, are sucked down into the horror
just as vividly as Edgar Allan Poe's victim was sucked down into the
maelstrom. So my impulse is to call up Father Akpan and ask how someone with
such an intimate knowledge of hell in his writings can still obviously affirm
in his life the existence of a benevolent God; because in these stories, when
evil comes through the door in the form of human tribal enemies, the only
defense the narrator's parents, the minor household deities here, can offer
their children is to, in the chilling words of the title story, "Say You're
One of Them.'

Maybe Akpan will explore that central theological mystery in a nonfiction book
one day. In this collection his aim seems to be to unflinchingly dramatize
partisan hatred at work. Akpan's brilliance is to present that brutal subject
through the bewildered, resolutely chipper voice of children. And he never
succumbs to the temptation of making his narrators endearing or overly
innocent.

All five of these stories are electrifying. But the one I find myself
thinking about the most is one of the longest, over 100 pages, called
"Fattening For Gabon." It takes place over three months and has the slow,
sinister feel of a dark fairy tale. In it our narrator, a boy age 10, and his
sister, five, are sent to live with their uncle because their parents are
dying of AIDS. The uncle does a deal with the devil and sells the children
into slavery. Although the kids don't know that, they just see a new
motorbike appear one day in their uncle's hut. They're treated to fattening
feasts of bush meat and pepper soup by a pair of fawning godparents who plan
to stick them in the bottom of a boat and smuggle them across the border to
Gabon. The boy begins to catch on; but to give himself and his sister a
chance of survival, he acts dumb and feels bad about himself for being good at
it. He says, referring to his captors, `I felt I had learned evil from them.
I had learned to smile and be angry at the same time.'

Akpan's narrators speak in a hodgepodge patois of French and African languages
and English. They have a gift for rough metaphor. For instance, an
eight-year-old boy, the hope of his homeless family, who narrates the lead off
story called "An Ex-Mas Feast," describes his sister and her fellow
prostitutes as "fluttering about under streetlights, dressed like winged
termites." The distinct voices of these child narrators and the horrors they
bear witness to make "Say You're One of Them" a haunting debut short story
collection, or perhaps it would be more faithful to the bleak tone of these
stories to say that readers will be damned to remember them.

DAVIES: Maureen Corrigan teaches literature at Georgetown University. She
reviewed "Say You're One of Them" by Uwem Akpan.

To read an excerpt or hear Akpan read from his collection, visit our Web site,
freshair.npr.org, where you can also download podcasts of FRESH AIR.
Transcripts are created on a rush deadline, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of Fresh Air interviews and reviews are the audio recordings of each segment.