TERRY GROSS, host:
This is FRESH AIR. I'm Terry Gross.
It looks like the so-called Bush Six may have some company. Last month, a Spanish court opened an investigation into six Bush administration lawyers alleged to have provided the legal framework for the torture of detainees at Gitmo. Torture is a violation of international law.
Today, the judge who opened that case, Baltasar Garzon, Spain's top investigative magistrate, opened a new investigation into alleged policymakers behind torture and those who gave torture orders. Garzon has not named who the targets will be.
My guest, Philippe Sands, is the author of the book "Torture Team." It comes out in paperback in May. Sands is an international lawyer who has been involved in many international torture cases. The Spanish lawyer you file the criminal complaint against the Bush Six said that Sands book helped show him who should be the targets of the investigation.
The Bush Six are Alberto Gonzales, former attorney general; Jay Bybee and John Yoo, formerly of the Office of Legal Counsel, who wrote the so-called torture memos; William Haynes, former general counsel for the Defense Department; David Addington, former legal adviser and chief of staff for Dick Cheney; and Doug Feith, former Under-Secretary of Defense for Policy.
I spoke with Philippe Sands this morning, minutes after Judge Garzon handed down his decision.
Philippe Sands, welcome back to FRESH AIR. Can you explain what action the Spanish court took today?
Mr. PHILIPPE SANDS (International Attorney; Author, "Torture Team"): Well as you know, there's been a slightly long, convoluted process. The most recent decision of Judge Garzon is to confirm that he will proceed to a criminal investigation in relation to five individuals who are Spaniards or residents of Spain for abuse and torture of those individuals at Guantanamo and at other places.
He has extended his investigation beyond the Bush Six, it will include the Bush Six, to any other person who may have been involved in the decision to subject those five individuals to abuse and torture.
GROSS: Of all the countries in the world, why is it a Spanish court that is taking action against the United States for torture?
Mr. SANDS: Well to step back slightly, under the 1984 convention against torture, any one of the 150 or so states' parties who have an obligation to investigate the crime of torture could exercise jurisdiction over events occurring in Guantanamo, in Bagram or in Abu Ghraib, which constitute torture.
My understanding is that this latest decision by Judge Garzon is based squarely on the treatment of five individuals of Spanish nationality or who are residents in Spain who alleged that they were abused at Guantanamo and in other places in circumstances in which the Spanish courts have already found that they were so abused and possibly even tortured.
So Spain has apparently a pretty clear connection with five individuals, and that appears to be the basis, but it's important, I think, to stress that Spain is not the only country that is conducting a criminal investigation. My own country, the United Kingdom, right now is carrying out a criminal investigation in relation to the circumstances in which allegations of abuse and torture against a British resident, Binyam Mohamed, occurred.
GROSS: So my understanding is that Judge Garzon, who is the judge handling the Spanish investigation, it sounds like he may be very frustrated because the five terror suspects he wanted to prosecute, information incriminating them has to be thrown out of court because it was gotten through torture and therefore isn't admissible in court. So he's probably pretty frustrated that his case has fallen apart because of that.
Mr. SANDS: Well that's right. What seems to have happened is that several years ago, Judge Garzon decided to bring charges of crimes, terrorism-related crimes, against the five individuals. When they got out of Guantanamo, he proceeded with his effort to prosecute them for various crimes, and that case collapsed because they successfully argued they'd been tortured and abused and said the material on which he relied, apparently, had been obtained in circumstances in which it was not admissible in court proceedings.
And against that background, his effort to bring a case, ironically enough, against individuals he considered to have committed crimes which constituted terrorism collapsed, and that is the context. And it is that case, which was closed two or three years ago, which has now been reopened and ironically turned around to address the individuals who, in effect, he now believes caused his case to collapse.
GROSS: So now that he's broadened his case to include people higher up in the Bush administration, beyond the six lawyers who are now known as the Bush Six, is it a more consequential case now that it's broadened? Does the meaning of the case, does the impact of the case change now?
Mr. SANDS: I don't think that it necessarily does. The underlying issues are essentially the same. I mean, under the convention against torture, under the Geneva Conventions, complicity or participation in torture - which can include those who framed the legal decisions as well as those who took the policy decisions - would essentially be the same issues.
He will still face issues of establishing causality connections between the advice given by individuals and the actual harm, if it is established, to particular individuals.
So the essential issues are the same, but of course, once you've gone beyond the sort of second- and third-category individuals, who I think played a very important role - the lawyers, in my view, a key role - you become even more politically significant, I think, when you go up the scale to include some of the individuals who were obviously very closely involved with the administration. So I think politically, it raises the stakes.
GROSS: So you have information saying that Condi Rice is likely to be named in this second round?
Mr. SANDS: I don't think his decision names particular individuals, but what I'm told is that the Intelligence Services Committee list, what was relevant, and that her name, and I believe also Vice President Cheney's name, is on that list. So he, too, may be in Garzon's mind.
I mean, Garzon has drafted it very broadly, any person who was directly involved in the decision which led to the abuse of these individuals. So it goes very high, but it also goes very low.
GROSS: So is there any precedent for naming people this high in a criminal investigation from another country if the person wasn't an out-and-out dictator like Augusto Pinochet of Chile?
Mr. SANDS: Well there are examples, but I think they're not as, shall we say, grounded in fact and law. I think this is a different type of situation. It is potentially very far-reaching, but of course the problem that we all face in this - and we're all struggling with this because the U.S. is a well-functioning democracy; we are where we are because of decisions of the Supreme Court, because a democratically elected president has released documents - is that we've got pretty much black-and-white evidence that torture happened, coupled with an obligation to criminally investigate torture.
And what is almost unique here is an admission by a state, an important state, a very important state, that it has engaged in torture, and that is what causes, I think, a lot of these real political dilemmas and difficulties.
GROSS: You use the word, obligation, to investigate.
Mr. SANDS: You have an obligation. It's very clear in the 1984 Convention Against Torture, in Article five and six and seven, that if a person who is alleged to have been involved in torture is located within your jurisdiction, you have a legal obligation, either to subject them to criminal investigation or to extradite them to a third state.
Now ironically, and this is very ironic, it's just in the past few months that the United States has, for itself for the first time, exercised rights of criminal jurisdiction over a person who committed torture abroad. A non-American by the name of Chuckie Taylor, the son of Charles Taylor, was convicted, I think last October, by U.S. federal court of the crime of torture in Sierra Leone and in Liberia, and he was then sentenced in January, I think, to 97 years in prison.
And there's a wonderful press release by the former attorney general, Mr. Mukasey, warmly welcoming the exercise by the United States of jurisdiction and the conviction of this individual for the crime of torture abroad.
So ironically, there is even support at the upper echelons of the former Bush administration for this type of universal jurisdiction, as it's come to be called.
GROSS: So now that Judge Garzon has widened this investigation, in order for him to actually prosecute anybody who he's investigating, they'd have to be extradited from the United States to Spain. I think it's fair to say there's no way that President Obama is going to extradite either the six lawyers or anyone higher than that, certainly not Condoleezza Rice, to Spain for prosecution. So what's the significance of this case, considering that there's probably no way in the world that anyone will actually be prosecuted?
Mr. SANDS: Well, I should say at the outset, I'm not an expert in Spanish criminal procedure, so I want to be very careful to stress that, but I understand that what is likely to happen next is that the investigation will be followed reasonably shortly, assuming it proceeds without any sort of appeals, and it may well be that the Spanish prosecutors or the government may appeal his decision earlier this week.
But if it proceeds unappealed and unhindered, what is likely to happen is that a court date will be set, and the individuals whom he is targeting following the conclusion of his investigation will be invited to attend that court hearing.
If they decide not to attend the court hearing, which is of course the most likely scenario, the next thing he is able to do is to issue an arrest warrant. And he can then circulate that arrest warrant internationally, and at the very least what it would mean is that those individuals would be, assuming how widely the arrest warrant is circulated internationally, subject to arrest if they entered a country in which that arrest warrant had validity.
So that's the most likely medium-term scenario. Added to that, he can, of course, make a request for extradition, but of course the U.S.-Spain extradition treaty includes an exception in relation to nationals of each country, and so I think it's very unlikely that we're going to see extraditions from the United States to Spain.
GROSS: So President Obama has a legal way out here. He can say the extradition treaty says that American nationals do not need to be extradited. You can just say no to that. So he can just legally say no.
Mr. SANDS: I'm going to very boringly put in another caveat. I'm not an expert on U.S. extradition law, so I want to be careful what I say, but I just had a quick look at the extradition treaty, and it has that exception. So what that appears to mean, at least under that treaty, there is no obligation to extradite. But of course there are also obligations to extradite under various other treaties and obligations to assist in criminal investigations, including under the 1984 Convention Against Torture, and there are related provisions in the Geneva Conventions.
So it's not quite as black and white, and I think that what this is going to cause President Obama's administration to do is, again, face one of these difficult balancing exercises. It's just put itself squarely in the seat of being a rule-of-law administration, you get a request from a third country for assistance on a crime involving senior officials of a former administration, what on earth do you do?
GROSS: What impact do you think that the recently released memos pertaining to the interrogation techniques, and also the recently released Senate Armed Services Committee Report, had on the Spanish court's decision to add more people to their criminal investigation?
Mr. SANDS: Well, we don't know the full details, but it looks as though it's had a pretty significant impact, because some of these documents may well have colored Judge Garzon's sense of how far to reach in terms of looking at particular individuals.
So if he is looking at reports that have been published by the attorney general or the Senate Intelligence Committee or by the Senate Armed Services Committee and using those to frame his own investigation, then you can see that the act of release of the documents is having, ironically, the consequence of adding fuel to foreign investigations. And I think this adds to the context in which President Obama, of course, will face very real difficulties.
I think his decision to release those documents was brave, and I think it was the right decision, and I think he's justifiably earned plaudits around the world for doing that. And I think it's also important to remember that whatever foreign courts or judges may do, ultimately they will, I am dead certain, adopt the position that if the United States carries out its own investigation and it's a half-serious investigation, other countries will back off.
GROSS: My guest is international lawyer Philippe Sands, author of the book "Torture Team." We'll talk more after a break. This is FRESH AIR.
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GROSS: My guest is Philippe Sands, an international lawyer and author of the book "Torture Team: Rumsfeld's Memo and the Betrayal of American Values." Now your book "Torture Team" is coming out in paperback, and my understanding is that this book was very influential on the lawyer who is prosecuting this case in Spain, and that lawyer is Gonzalo Boye, and also I think on Judge Garzon, because you mention in your book that you showed some documents to a European judge. I'm guessing that's Judge Garzon.
Mr. SANDS: Well, you're free to guess.
GROSS: Okay, but you're not going to say, but okay.
Mr. SANDS: I've indicated in the main body of the book, which is already available, that I went to see a European judge and a European prosecutor, and for obvious reasons I undertook to respect their confidentiality. But you'll want to be aware, and your listeners will want to be aware, that obviously I as a European international lawyer have contacts with a large number of prosecutors and lawyers and judges in various countries, and I was, for example, acting for a Belgian prosecutor in the Pinochet case, and I've had extensive contact with Italian, Spanish, German, French, Swedish, Swiss prosecutors. So I want to respect confidentiality.
GROSS: That's fine, but I will say that the memos that you showed whatever European judge it was are very relevant to the case that the Spanish court is prosecuting now, whether you showed it to the Spanish people or not.
So let's talk about a couple of those memos that you think implicate some of the people in what is now known as the Bush Six, the lawyers who the Spanish court is prosecuting for providing legal framework for torture. And a couple of these memos pertain to Jim Haynes, who was a lawyer with the Pentagon under Donald Rumsfeld.
Would you describe one or two of those memos that you think are significant and give examples of how you think Haynes helped provide legal framework for torture?
Mr. SANDS: Sure. What I'd done, in fact, as I described in the book when it had initially come out, I'd wanted a sort of reality check to all the material that I'd gathered in my interviews. So I went and found a European judge and prosecutor and put the material that I had - that was about the summer of 2007.
After the book came out, there were hearings, new material came out, and I thought it would be sensible to go back and reconvene that reality check. And so I went back to the same European judge and the same European prosecutor with all these new documents that had come out.
One of the documents showed, for example - and this concerned the testimony of a person who had been the lawyer, the main lawyer, for General Myers, who was the chairmen of the joint chief of staff, a lady by the name of Admiral Jane Dalton. And she testified that when the request from Guantanamo had originally come up, she had done what she normally did - she sent it out for review to the military services and their lawyers. And within a couple of days, all of the services, Air Force, Navy, Marine, Army, came back and just said look, we can't do these techniques of interrogation - this is not us, this is criminal, this is torture. You cannot do it.
She then sent those documents over to Mr. Haynes' office, of the general counsel at Department of Defense, and the next thing she knew, very promptly, -and she described this on questioning to Senator Warner and Senator Levin and others, was that Mr. Haynes intervened to stop her review.
Now that is enormously significant for any person who's looking at bringing a criminal charge, because what it destroys is the idea that Mr. Haynes was involved in some sort of good-faith lawyering. What it indicates is that when contrary legal advice was put forward, which said these types of techniques were inappropriate, he took active steps to snuff out that legal advice. And that, I suspect, is really going to come back to haunt him.
GROSS: Let me just quote you something that Jay Bybee said yesterday.
Mr. SANDS: Or this morning, yeah.
GROSS: Let me preface this by saying Jay Bybee was the head of the Office of Legal Counsel, which is the office that advises the executive branch on what is legal and what is not. And he was the head of the Office of Legal Counsel when the so-called torture memos were written, and he signed those memos.
So he said the central question for lawyers was a narrow one: Locate, under the statutory definition, the thin line between harsh treatment of a high-ranking al-Qaida terrorist that is not torture, and harsh treatment that is. I believed at the time and continue to believe today that the conclusions were legally correct. We gave our best honest advice based on our good-faith analysis of the law. What's your reaction to that?
Mr. SANDS: Well I was shocked when I read that. I would have hoped that a man like Jay Bybee, who is a federal judge, would have had the honor and decency to say, with the passage of the time and on the basis of reflection, I now recognize that I fell into error. I accept my responsibility for having done that. I should not have signed that memo.
He hasn't done that. He's dug himself into an even deeper hole. I suspect he's done it because he is right now under investigation by the Office of Professional Responsibility, the Department of Justice, and perhaps by his own bar association, and there may even been impeachment proceedings against him.
I think the braver and more honorable thing to do would have been to recognize that he fell into error, and I have to say, reading that interview for the first time, I felt really very strongly that this was not a gentleman who really ought to be sitting on the bench of a U.S. federal court.
I mean, sitting here in London, I have to tell you, U.S. federal courts are immensely respected institutions. It's not a political thing. It's not a left-right thing. These are hugely important courts that our English courts look to, that foreign courts look to - and the idea that a lawyer who signed off on waterboarding and still thinks today that it is not torture should sit on such a court is frankly, distressing and I would say even shocking.
GROSS: Now the Spanish lawyer, Gonzalo Boye, who is prosecuting the case against the so-called Bush Six, six of the lawyers involved with providing the legal framework for what has been called torture, he told Jane Mayer of the New Yorker that your book, "Torture Team" played a big role in his thinking and that your book showed him who the targets of the investigation should be.
What role do you think your book has played in the Spanish court's investigation into American torture, and how do you feel about whatever role you think your book has played?
Mr. SANDS: Well, I think it's probably for others to judge what exactly the role has been and whether that's a positive or a negative thing. I suppose at the back of my mind, I imagined that as some point in the future, something may happen, but I've been immensely surprised at the speed with which things have happened and have been almost overwhelmed, I've got to say, in the last two weeks, particularly as President Obama has released documents and then has appeared to endorse at least my underlying thesis, by saying the responsibility of the framers of the legal decision is a matter for the attorney general, not a matter for the president - which appears to open the door to at least the possibility of criminal investigations.
GROSS: Well, I want to thank you very much for talking with us.
Mr. SANDS: Thank you again, Terry, and thank you for following in on this because I've really appreciated the opportunity to talk fairly on these rather complex, but interesting, issues.
GROSS: Philippe Sands, recorded from the BBC in London this morning. His book, "Torture Team," will be published in paperback in May. I'm Terry Gross, and this is FRESH AIR.