TERRY GROSS, host:
This is Fresh Air. I'm Terry Gross. As the Bush administration comes to an end, one of the questions we're left with is whether high level officials will face charges in the U.S. or internationally for authorizing interrogation techniques like waterboarding, which are regarded by most people in the human rights community as torture. My guest, Philippe Sands, has been asking that question. He's a British lawyer specializing in international law and has been involved in many cases involving torture, including that of former Chilean President Augusto Pinochet, former Liberian President Charles Taylor and the British detainees at Guantanamo.
Sands is a professor of law and director of the Center on International Courts and Tribunals at University College London. He's also the author of "Torture Team," which investigates the paper trail and legal arguments from top U.S. officials that justified the use of interrogation methods like waterboarding.
Phillipe Sands, welcome back to Fresh Air. You were last on our show in June, and information has come out since then that I figure would effect your evaluation of whether Bush administration officials could be prosecuted. So, let's start with this. What is some of the new information that has come out that would weigh into your evaluation?
Professor PHILLIPE SANDS (Law; Director, Center on International Courts and Tribunals, University College London; Author, "Torture Team"): Jumping straight to the heart of the matter, one of the big issues that I think people are still focusing on is what's the relationship between the administration's legal advice and the abuses at Abu Ghraib? The administration has bent over backwards to run the argument that the legal advisers were stargazing. They didn't affect actual policy, and they certainly didn't contribute to the abuses in Iraq.
I think it's now pretty comprehensively established on the basis of what's come out that that argument is simply not sustainable. And in particular, in September of 2008, a hearing was held before the Senate Armed Services Committee, and some of the documents which came out there indicated for the first time that some of the abuses that had taken place in Iraq in September of 2003, that's to say just a month before the Abu Ghraib photographs were taken, occurred in a situation in which, contrary to the administration's position, certain detainees in Iraq were deemed to be not covered by the Geneva Conventions.
To pause there slightly, the administration's position had always been that Iraq was different from Guantanamo. Geneva applied in Iraq and therefore, no one was outside Geneva protections. It now turns out that that is not the case. There were a category of designated unlawful combatants, as they were called, who were identified by the general counsel at the Department of Defense, for whom there were no protections and for whom abusive techniques of interrogation were used.
That is enormously significant because it directly links what happened at Guantanamo with what happened in Iraq and at Abu Ghraib. And that's a very key new development.
GROSS: Why is that so important?
Prof. SANDS: It's important because it puts the spotlight on who is truly responsible for what happened in Iraq and at Abu Ghraib. The administration, of course, has run the argument that the terrible photographs were the result of a few bad eggs in Abu Ghraib, the Lynndie Englands of the world. And that narrative has been very important in order to be able to deflect issues of responsibility from the administration. But if there's material out there which now shows that in the run up to the Abu Ghraib photographs, senior members of the administration - Mr. Rumsfeld, Jim Haynes, David Addington, perhaps others - were authorizing techniques of interrogation that were clearly prohibited by the Geneva Conventions for use in Iraq, it completely changes the story.
And in fact, it melds with the claim by some of the people who were at Abu Ghraib that there was high-level signoff on abuse against certain detainees. So again, it goes to this issue: Were the people responsible - the few bad eggs on the ground in Abu Ghraib - or was there high-level signoff from the administration? And the evidence, I think, now points pretty compellingly to the second conclusion.
GROSS: But the photos that we saw from Abu Ghraib with Lynndie England giving the thumbs up and the stack of Iraqi prisoners, you know, stacked like a pyramid - those weren't the high-level detainees who would've come outside of the Geneva Conventions, right? So, can't those photographs and the evidence of those photographs still be blamed on a few rotten apples?
Prof. SANDS: Yeah. No, I mean, I'm not for a moment suggesting that that, you know, Mr. Rumsfeld or Mr. Cheney or President Bush personally authorized putting people in pyramids, naked, in that particular way. What I'm suggesting more is that the evidence shows that there was a culture and an environment which indicated that the upper echelons of the administration recognized that abuse was permissible in certain circumstances against high-level detainees or against terrorists who were not subject to the protections of Geneva.
And as one of the people that I interviewed in the book - a rather wonderful psychologist by the name of Mike Gelles, who had been down at Guantanamo, told me, once you let the dogs off the leash, there's no way you can get them back on. So, once the people on the ground have picked up the signal that some abuse in relation to some categories of people is a good thing, it becomes very difficult to stop the flow, to stop the migration of the belief that harsh techniques of interrogation are useful also against other people or at least are going to be tolerated and are not going to be punished.
It creates an environment in which situations that occurred and that were photographed so shockingly are more likely rather than less likely to happen. And that's why there's a particular responsibility for people at the top to send out a powerful signal. It's why President-elect Obama, I think, has come out so strongly to make the point America does not do this. We will not tolerate this. This will not happen.
GROSS: Last month, Vice President Cheney gave an interview to ABC News. And in that interview, he was asked about the treatment of one of the high-value detainees, as they're called, Khalid Sheikh Mohammed. And one of the things that was done to him was that he was waterboarded. And the vice president told ABC, I was aware of that program certainly and involved in helping to get the process cleared. So, when you heard that, what did what the vice president say mean to you?
Prof. SANDS: Well, I thought it was a very silly and ill-advised thing to say. There is no question but that waterboarding amounts to torture in all circumstances. And torture is always prohibited, both under U.S. federal law and under international laws, including the Geneva Conventions. So, what the vice president is in effect doing - and one might say it's rather brave of him - is to take personal responsibility for the decision to waterboard a certain number of individuals.
Now, the reality is that exposes him to the very real risk of criminal prosecution, probably less likely in the United States and probably less likely in relation to him. You know, talking to prosecutors around the world, as I have done, I think they all recognize the very real political difficulties of imagining taking on someone who has been vice president of the United States or president of the United States or the secretary of defense of the United States.
But those arguments melt away as you go a little down the chain. And I don't think the same arguments would apply in relation to the man, for example, who was Vice President Cheney's general counsel at the time these decisions were taken. David Addington, who's now his chief-of-staff or will be his chief-of-staff for few more days - he was obviously, it's clear now, deeply implicated in all of this. And I think he faces a very real risk of, you know, investigation for complicity in an act that amounts to torture, and in fact which took place, not in the case of waterboarding, but more general in relation to other techniques, on a rather more widespread scale than has until now been known.
GROSS: Why Addington? Are there documents that he wrote or signed that you think are incriminating?
Prof. SANDS: Well, he's been very, very careful, in terms of the paper trail. He testified, I think, after I was last on your program, in June of 2008, before the House Judiciary Committee. He was remarkably evasive. He had a very, shall we say, selective sense of memory. There was a great deal that he couldn't remember.
For example, I had written in my book about a meeting that had taken place in Guantanamo on the 25th of September, 2002, which he had attended and at which he had met the head of the camp at Guantanamo, Major General Dunleavy, and the legal adviser, Dianne Beaver. He was asked, when he was subpoenaed to appear before the House Judiciary Committee, was he present at that meeting? He said that he couldn't remember. He attended a lot of meetings. He simply couldn't remember, but the fact is that he was there. Documentary evidence has now emerged to confirm that he was there.
But interestingly, Dianne Beaver had told me very clearly David Addington was the leader of the pack. Everyone else was rather differential to him. He was the person who was in charge. And it was he, according to Dianne Beaver, who left them with the message in relation detainee 063, Mohammed al-Qahtani: do everything that needs to be done. That's a pretty powerful signal for the general counsel of the vice president to leave to people down at Guantanamo, that is, authorizing from the very top certain forms of behavior.
That was put to him in the House Judiciary Committee, and having had a memory loss - an amazing memory loss during much of the hearings, he recalled with crystal clarity that he did not say that to Dianne Beaver. I think it's clear that he was the brains behind much of what happened. He was Vice President Cheney's right-hand man. He has owned up to the fact that he contributed to the preparation of the infamous torture memos, prepared in the Department of Justice by the Office of Legal Counsel lawyers John Yoo and Jay Bybee. And I think his fingerprints are all over the policies and the practices that were followed, but there is no paper trail.
GROSS: Well, if there's no paper trail, doesn't that make it more unlikely that he'd be prosecuted?
Prof. SANDS: Well, he turns up in everybody's account, that's the thing that is interesting. And of course, as you're aware, very recently - within the past month - the Senate Armed Services Committee has produced a report on interrogation of detainees. All that has been released so far - and I gather that's not going to change for the next few weeks - is the unclassified executive summary. And that puts the finger directly on Jim Haynes and also David Addington and led a few days later - I think it was the 18th of December - to the New York Times publishing a lead editorial - not an op-ed, an editorial - essentially calling for the prosecution of David Addington, Jim Haynes and Donald Rumsfeld.
Now, if you had ask me three years ago or two years ago or a year ago, would the Senate Armed Services Committee, in a bipartisan report, including Senator McCain, Senator Levin, endorse my findings? Would the New York Times essentially call for the prosecution of these lawyers? I would have looked at you with incredulity. But things have changed, the atmosphere has changed. I think people have recognized that a huge and very terrible price has been paid for what has happened - a great loss of authority, a great loss of global leadership, which I think is very regrettable. A country that has an enormous commitment to the rule of law has been deeply damaged.
And I think there is a growing sense that this needs to be cleaned up and also recognition that actually these techniques have not produced meaningful, useful information. That's the other great theme that emerged. I did not operate in the world of interrogators. It's not a world I knew well, but the more people I talked with, the more people I met who have spent their lives engaged in interrogation, the more convinced I became that these harsh techniques, not only have been deeply damaging, but they have produced, really, nothing that is meaningful.
GROSS: My guest is Philippe Sands, an expert on international law and author of the book "Torture Team." We'll talk more after a break. This is Fresh Air.
(Soundbite of music)
GROSS: My guest is Philippe Sands, the director of the Center on International Courts and Tribunals at University College London and the author of the book "Torture Team." We're talking about whether Bush administration officials are likely to face international prosecution for torture. OK, so, you've mentioned three names - names of people who you think could be prosecuted internationally.
Prof. SANDS: I put it a little lower. I put it that they are at serious risk of being investigated. I mean, there needs to…
GROSS: Investigated. OK.
Prof. SANDS: More facts need to come out. That's what a - the first step of any criminal process is investigation. And then, if the facts confirm that there is a basis, then there would a prosecution. So, I think it's a step-by-step process. I think it's better to focus on investigation before actual prosecution.
GROSS: So, the names you've mentioned are David Addington, who was legal counsel then chief-of-staff to Vice President Cheney, Donald Rumsfeld, former secretary of defense, and Jim Haynes, who was the legal counsel to Donald Rumsfeld. Any other names that you think should be carefully investigated?
Prof. SANDS. Well, the other people that I've looked at closely include Alberto Gonzales, who, of course, was President Bush's White House counsel during this period and went on to be attorney general. I think he was probably something of a bag carrier, but he was nevertheless an enabler. And I think that he recognizes himself that he is at serious risk. He gave an interview in the last few days in the Wall Street Journal in which it was palpably clear that he harbored a real concern about why he was being treated as a criminal.
I think the author - the principal author of the infamous torture memos - that's to say John Yoo - must be at serious risk of possible investigation. I mean, he is, in a sense, impressively unapologetic. I mean, he seems to be an individual of principle; he sticks by what he has done. I fundamentally disagree with what he's done, but he has said he believes he did the right thing. His legal opinions are truly appalling. There's no one I know and respect who supports them. It appears that he was essentially used to rubber stamp a predetermined policy.
And that, I think, takes him across a line. It's not just bad lawyering, it's not just unprofessional legal advice, it takes you into the realm of complicity. And I think if evidence emerges from further investigation that abusive techniques of interrogation had already been embarked upon without appropriate legal authorization, and they needed to find someone to sign off on it, and he was the person to sign off on it, then I think it becomes particularly serious.
The other person that I've written about is Doug Feith, who was the number three and who played a certain role in relation to the decision to dispense with protections in relation to the Geneva Convention. He has very vigorously defended his position in his appearance before the House Judiciary Committee. And I think, on the basis of what is publicly available, and I think, on the basis of new material that has emerged in relation to testimony that he has given, which seems subsequently not to have been borne out by the facts, I think he, too, and also his colleague, Paul Wolfowitz, are at least, you know, on the radar screens of individuals who face, you know, possible investigation.
I'm choosing my words very carefully. I'm certainly not calling for investigations or calling for prosecutions. I think there's a great deal more fact that needs to be found out. And I've got to keep an open mind about the facts. It may be things emerge that we are unaware of that change the story, that cause us to revisit. But on the basis of what's in the public domain right now, I think the people that I've written about mainly in the book, I think, face serious difficulties. And I suspect that at the very least, they're not going to be doing a great deal of traveling around the world.
GROSS: I will reiterate that what you're talking about is the possibility of investigation. You're not calling for war crimes prosecution. But nevertheless, I want to ask you, if it came to prosecution, if there were investigation and if investigation led to prosecution, under what law might that even be considered?
Prof. SANDS: Well, this is what creates the interesting difficulties. I mean, I focused on the interrogation of one individual in which I pretty much satisfied, on basis of the medical, you know, expertise, that I've been able to glean this individual was tortured. This is detainee 063. And the difficulty with torture for people who were involved in the decision making process is that it is an international crime that attracts universal jurisdiction. So, under the 1984 convention prohibiting torture, which the United States led the world in negotiating, the theory was there should be no refuge anywhere in the world for the torturer. The torturer is the enemy of the whole of society - society around the entire world.
And so, in any jurisdiction around the world which is a party to the torture convention - and that's about a 155 countries, including all the countries you and I would probably want to take vacations on or go book signing tours on - there is not only a right to investigate whether torture has occurred, but there is a legal obligation to investigate. In fact, the United States has a legal obligation to investigate. And if the United States doesn't investigate, it's at risk of any of these other 154 countries making requests for assistance in their investigation.
So, it's one of those categories of crimes that crosses a line. Genocide is another one, war crimes is another example. There aren't very many of them, but there's broad acceptance internationally that there are certain acts that are considered to be so heinous that any state in the world has the right to exercise its criminal jurisdiction. So, we're not just concerned with what may happen in the United States. I believe strongly it is first and foremost for the United States to get its own house in order.
There are a number of ways in which that can happen. President Obama, I think, and his team have alluded to various possibilities, which fall well short of criminal investigation - a blue ribbon truth and reconciliation commission or a church committee-style inquiry, which would get to the bottom of the facts - although, the Senate Armed Services Committee has already gone very, very far in relation to some of these things - would be other ways of dealing with this. But if the United States does nothing - and I think for this reason, the do-nothing option is not a realistic possibility - then, I think it's a racing certainty that other countries will investigate.
And then of course, there's the interesting possibility of adding on top of this - and we'll have to keep a close eye out over the coming days about what President Bush does in relation to his policy of pardon. There's been some rumor and speculation about the possibility of a preemptive pardon by President Bush. The attorney general, Mr. Mukasey, has said he sees no need for that.
On the other hand, Mr. Mukasey thinks there've been no criminal acts because everyone acted in good faith. Many of us, I think, around the world are rather bemused about the idea that you can torture in good faith and that somehow gets you off the hook. But the preemptive pardon, I think, is something one wants to keep an eye out for over the next few days. Personally, I think it would be deeply regrettable and a very silly thing to do because it would virtually guarantee for an investigation.
GROSS: Philippe Sands will be back in the second half of the show. He directs the Center on International Courts and Tribunals at University College London, and he's the author of the book "Torture Team." I'm Terry Gross and this is Fresh Air.
(Sounbite of music)
(Soundbite of ad)
(Soundbite of Fresh Air preview)
(Soundbite of music)
GROSS: This is Fresh Air. I'm Terry Gross, back with Phillipe Sands. We're discussing whether Bush administration officials may face international prosecution for torture. Sands is a British lawyer and director of the Center on International Courts and Tribunals at University College London. He's been involved in many cases involving torture, including that of former Chilean president, Augusto Pinochet, former Liberian president, Charles Taylor, and the British detainees at Guantanamo. His book, "Torture Team," investigates the legal justifications that were used to authorize waterboarding and other interrogation techniques regarded by the human rights community as torture.
Now, what you're saying is, under the torture convention of 1984, torture is considered so heinous that countries who have signed on to this convention have a moral responsibility to prosecute torturers. And you're suggesting that if the United States doesn't investigate and if there is a preemptive pardon, then other countries might feel this responsibility under the torture convention to try to prosecute the people directly involved with torture.
Prof. SANDS: It has become of abundantly clear to me that there is, not just a moral duty, but a legal obligation for them to consider these matters, if they feel there is a nexus with people who fall within their jurisdiction. There has to be someone who's connected to their jurisdiction. And all of this is not just pie in the sky. You know, there is now a criminal investigation taking place in the United Kingdom in relation to a British national - a British resident, who is still a detainee at Guantanamo - a man by the name of Binyam Mohamed - I'm only referring to what's in the public domain here.
But as a result of material that came out in an English court proceeding, the home secretary in London, who's our equivalent of the Justice Department, initiated a criminal investigation concerning allegations of torture perpetrated by possibly Americans or Pakistanis or Moroccans, in relation to acts taking place thousands of miles away from the United Kingdom. And the United Kingdom has an obligation to investigate serious allegations of torture, irrespective of where those acts occurred, if there is a connection with the United Kingdom. And that is now happening in Britain, and it is going to extend, I think, the investigation to possible involvement of CIA officials or other U.S. officials.
GROSS: So, let's just speculate from a moment and say, there came a point down the road where, upon further investigation and upon further evidence, some prosecutors from other countries decided that they had a moral responsibility to prosecute some Americans for torture. How would they initiate that? What would happen?
Prof. SANDS: Well, let me give you a clear example. They would follow the path of what happened with Senator Pinochet back exactly 10 years ago, in 1998. He arrived in London for medical treatment, and whilst he was in his hospital room, he was arrested and subject to an extradition procedure to send him to Spain, where he was facing charges of torture and disappearance and other international crimes.
The Pinochet process, we now know, was the result of a concerted effort by a series of prosecutors in various European countries. It wasn't just an accidental, spontaneous act. And I think the thing to look out for is what efforts are various prosecutors and judges around the world engaged in today in order to prepare for the eventuality that one of the people that we've talked about - or someone else - might turn up within their jurisdiction. That's the way it works in practice. And it works like that also in the United States.
GROSS: So, what would have to happen is that somebody who was prosecutable would have to leave the United States and go to another country, where they could then be extradited for trial?
Prof. SANDS: Well, what happened in the case of Pinochet was that Pinochet went to the United Kingdom. He knew he couldn't go to Spain already. What he hadn't bargained for was the possibility of an extradition request from Spain to the United Kingdom. Countries around the world have a sort of network of complex extradition agreements. And so, one of these individuals that you and I have been talking about might be worried about going to certain countries but less worried about going to other countries.
But to take an example, Jim Haynes, who's now a lawyer at the oil company Chevron, let's assume he attends an international conference in Uzbekistan or some such place. It might be that Uzbekistan has not the slightest interest in investigating Mr. Haynes, or indeed anyone else. But what is to stop the situation of Uzbekistan having an extradition agreement with some third country - let's say Belgium - in which there is a Belgian prosecutor, to take a hypothetical example, who's interested? At that point, the Belgian prosecutor puts in a request to Uzbekistan. And once that request comes in, Uzbekistan will have certain obligations in relation to transfer. Now, at that point, there may be strong political pressures by the U.S. administration, obviously, to intervene. But we know from what happened in the Pinochet case, that those pressures were unsuccessful, at least for about 18 months.
But that's the way that it works in practice. It's not theoretical, it's tried and tested. And it's a very real possibility. I mean, what I'm being told, Terry, is that some of these people will already not set foot outside of the United States, and that's probably a prudent and sensible thing to do.
GROSS: You're advocating investigation. You are not advocating prosecution, but you're discussing what prosecution would mean, if it did happen. But I'm wondering, as an expert in international law, what's the difference between investigation and finding incriminating evidence in investigation and prosecution?
Prof. SANDS: I think the crucial thing is that there be strong public attention given to issues of accountability for torture. I think there's already been, in the United States, a call by number of Congressmen for the appointment of a special prosecutor, others are suggesting that what President Obama should do is set up a blue-ribboned, bipartisan commission, which can investigate the facts. I think that process itself can be very useful in focusing attention on the objections we've got to have to the acts of torture for the United States to get its own house in order. I think that there are numbers of steps that can be taken which can achieve the same preventive result in the future, signaling that society will not tolerate individuals who engage in acts of torture or similar types of acts.
You know, other jurisdictions who have faced a similar situation to the United States have embarked on a completely different direction. There's the - of course, the famous example in South Africa, which set aside the possibility of prosecutions for people who participated in truth and reconciliation. The heart of coming to terms with injustice and coming to terms with accountability is a recognition by those who have been engaged in certain acts that they did wrong. And that can be achieved through truth and reconciliation and through other processes. But I have to say, coming back to the statement made by Vice President Cheney, that is hardly consistent with a recognition that mistakes were made.
GROSS: You are saying that he was - that when Cheney said he was in on the program, that that's not saying that a mistake was made?
Prof. SANDS: Well, I didn't hear - from him I've heard no iota of indication that any mistake was made. And in fact, from all of the people that we've mentioned - Mr. Addington, Mr. Haynes, Mr.Feith, Mr. Yoo - I've not picked up any sense whatsoever of recognition that errors were made. You know, Terry, if - as I talked to many of these people, if they had said to me, understand the situation we were in: We thought new attacks were coming, we though they were imminent. We did the best we thought we were doing for the protection of the United States. But we recognize we fell into error, and we hope that people will cut us some slack in our good faith efforts to protect United States.
That's not what I heard. Instead, what we've got is hubris and a very strong feeling that the right thing was done, and there can be no doubt about that. And I think that makes truth and reconciliation much more difficult. I mean, just pause for a moment - can we imagine Dick Cheney or David Addington or Jim Haynes stepping in front of a truth and reconciliation process, as happened in South Africa, and saying, mea culpa. I got it wrong. Here's where I got it wrong. I've learnt my lesson. I won't do it again. I think that's very unlikely.
GROSS: So, what you'd like to hear them say is we signed off on waterboarding. We now agree that waterboarding is torture and that we shouldn't have done it. Is that what you want to hear?
Prof. SANDS: I think that would go very far. And I think that would take the sting out of the prospects of more far-reaching investigations or prosecutions. You know, I mean, any society that's been through a difficult time has to have different ways of coming to terms of error. And different people are entitled to get things wrong.
What was striking for me, as I talked to people who'd been involved in this decision making process, was that when I talked to people who were, if you like, at the bottom of the decision-making process - people like Mike Dunleavy, the commander of the camp at Guantanamo, or Dianne Beaver, the lawyer down at Guantanamo - they would say to me precisely that - look, we thought we were doing the right thing. It now seems, with the passage of time, we may have got things wrong, and we take our responsibilities for that.
As you go up the chain of command, that type of approach has fallen away. There seems to be a real unwillingness of people to take responsibility for what they've done. I mean, it's most evident in the exchanges I've had with Doug Feith about his role in all of this. I mean, he seems very keen to pass the buck on to the lawyers. He was the head of policy at the Department of Defense. One would have thought that the head of policy at the Department of Defense would have some interest in asking himself the question, what's the effect of moving to abusive interrogations for our own troops? He seems never to have asked himself that question.
He has passed the buck on to the lawyers, he feels that I've got my facts wrong and I haven't looked at it properly. I haven't picked up from him any hint of recognition that any errors may have been made or any sense of personal responsibility for the abuses that have been heaped on - we now know - a very large number of people. And I think that's what's very problematic, and that, frankly, is what is likely to lead to a foreign investigator, to put the boot in. It's the complete lack of personal responsibility for what seems to have happened.
GROSS: My guest is Philippe Sands, an expert on international law and author of the book "Torture Team." We'll talk more after a break. This is Fresh Air.
(Soundbite of music)
GROSS: My guest is Philippe Sands, the director of the Center on International Courts and Tribunals at University College London. We've been talking about whether Bush administration officials are likely to face international prosecution for torture. You've been very critical of Bush administration lawyers for finding legal justification for what you believe has been torture. And I guess I'm interested in hearing your reaction to Justice Department appointments made by President-elect Obama.
Prof. SANDS: Well, I have been critical. There have been a number of lawyers in the administration, it has to be said, who have fought the good fight. I think it's really important to recognize that there have been a very large number of lawyers at senior levels who have tried to do the right thing - in the department of state, the Navy general counsel, Alberto Mora, and in particular military lawyers.
I mean, I think we mustn't leave your listeners with the feeling that somehow everyone was in this together. The military lawyers were, almost to a man and a woman at the senior level, completely opposed to what had happened, and they were excluded. So, they are, I think, rather hopeful, as I talk to them, about the kinds of appointments that are being made in the Justice Department. We have an attorney general, I think, who has a very clear, strong commitment to the rule of law. Just within the past two or three days, there's been the appointment - the nomination of a new head of the Office of Legal Counsel, Dawn Johnsen, who is professor at Indiana law school. I've known her for some time.
And of course, the Office of Legal Counsel and the Department of Justice is where a lot of this went wrong, because but for the lawyers, this would not have happened. If there had been independent thinking lawyers in the Department of Justice, in the Office of Legal Counsel, who were willing to stand up to the administration and say, we have obligations in domestic law, we have obligations in international law, we can't do this, it would not have happened. Unfortunately, they were not there.
I think the people who are now being put in place are those kinds of people. I think that they will not just roll over and keel over when President Obama decides he wants to do this, that or the other. They are independent thinkers and they will protect the Constitution of the United States and the rule of law. And I think the appointments are - I mean, certainly fill me with a high level of confidence that the U.S. can move pretty quickly to clean itself up, in terms of these issues.
GROSS: What are some of the things that you would like to see Barack Obama do shortly after he is inaugurated?
Prof. SANDS: I think he needs to, on day one or day two, outlaw the use of torture with immediate effect by reference, not to some bizarre definitions that have been used by the Bush administration, but by reference to the established international standards. Secondly, I think he needs to move very fast to close Guantanamo. There's been some talk - I think he's mentioned already that he wants to do that within two years. I think that's too slow. I think he needs to do it much more quickly in order to really enable the U.S. to move on and get rid of that issue.
And thirdly - and I think this is much more difficult within the U.S., although this is what happens in Britain - he needs to stop using the phrase War on Terror. Why do I say that? When you call this a War on Terror, you have the effect of elevating the status, at least in the eyes of some of those who seek to do us harm, and you turn them from criminals into warriors. I think it's not a helpful phrase, and I hope that he will follow the British path, which is to essentially outlaw the use of those words in a political context.
Drawing on our experience with the IRA in the 1970s, who also wanted to be treated as warriors, but in the end, were treated as criminals and did not attract the status of warriors, which would have enhanced their legitimacy in the eyes of many people. There are three things I think that need to be done.
The fourth thing is to set up, I think, very expeditiously and quickly, a far-reaching inquiry, which can truly get to the heart of the facts of what has happened. I think despite the very good work done by Senate Armed Services Committee, by House Judiciary Committee, there's much more that needs to be done through a proper investigation. I mean, appoint someone like Patrick Fitzgerald to get to the heart of this, bring the facts out. And once the facts are out, there can then be a proper discussion and debate about what needs to happen next, including issues of individual accountability, if necessary.
GROSS: We spoke for just a couple of minutes before the interview began, and you said something then that was very interesting that I'd like you to tell our listeners. You were speculating about what the confirmation hearings might be like for Obama's nominee for attorney general. And if the nominee is asked what constitutes torture? Is waterboarding torture? Why might that be so interesting and important?
Prof. SANDS: Sure. I think, coming on to the question of the possible appointments to the Obama administration - attorney general, deputy attorney general, head of the Office of Legal Counsel - they, of course, will all have to go through confirmation hearings. And one of the interesting things I'll be looking out for is how they respond to certain questions. I mean, for example, when President Bush's attorney general, Mr. Gonzales, and then later on, Mr. Mukasey, was asked the question is waterboarding torture? They desperately tried to wiggle out of answering that question, and they avoided, in fact, answering it.
Now, Eric Holder, who's Senator Obama's candidate for attorney general, may well be asked the question. Mr. Holder, is, in your opinion, waterboarding torture? What does he do in that situation? The difficulty he faces is that if he says that it is torture, and, on the basis of the evidence which confirms that water boarding has occurred at least in relation to some people, is the consequence of that not necessarily that he has to proceed to investigate those acts? Because on his own analysis, the individuals who were waterboarded were tortured. And from that, criminal prosecutions or criminal investigations would follow.
So, there are real practical difficulties, in terms of answers that are being given to these questions. My hope is that if Eric Holder is asked, in your view, Mr. Holder, is waterboarding torture? He will say, yes, and unequivocally so and move on to the necessary consequences from that opinion.
GROSS: Any final thoughts you want to leave us with?
Prof. SANDS: Well, I think one thing that I would like to say is I think the reason this is all so important is that the United States is so important. If the United States is not batting for the rule of law internationally, if the United States is not safeguarding the Geneva Conventions and the convention against torture, it's very difficult to see what other countries are going to be out there promoting the rule of law.
And so, I'm very strongly motivated in what I've been writing by an urgent desire to get the United States back leading from the front. Because the consequences of that not happening, the consequences of countries around the world continuing to say, oh, look, why should we care about torture anymore? The U.S. is doing it, so now we can do it, too, is so problematic for all of us that I'm mightily concerned that President Obama should do the right thing and get the U.S. back on track very quickly.
GROSS: Well, Philippe Sands, you've raised a lot of very interesting and problematic questions. I want to thank you very much for talking with us.
Prof. SANDS: Thank you very much for inviting me on your program.
GROSS: Philippe Sands directs the Center on International Courts and Tribunals at University College London and is the author of "Torture Team." We'll review a DVD collection of three movie musicals released during World War II after a break. This is Fresh Air.