War crimes, Guantanamo and the nature of lawyers’ advice

I have been reading “Torture Team: Uncovering War crimes in the Land of the Free” by Philippe Sands, Professor of Law at University College, London (he is also a practising barrister at the Matrix Chambers and an Arsenal fan – although neither of these should be held against him).

The book describes in detail – on occasions meeting by meeting and memo by memo – how the use of “aggressive interrogation techniques” came to be authorised against detainees at Guantanamo Bay.  This overturned existing US policy dating back at least as far as 1863 when President Abraham Lincoln issued the instruction that “military necessity does not admit of cruelty … nor of torture to extract confessions”.  Along the way, it was asserted that the Geneva Convention does not apply to those detained as part of the so-called “war on terror”.

The specific techniques included “water-boarding”, deprivation of sleep, maintenance of stress positions for long periods (the then US Secretary for Defence, Donald Rumsfeld, entered a caveat on the memo approving this, saying that he thought the restriction on standing for more than four hours was unnecessary as he personally often stood for much longer than that during the course of a day), humiliation, nudity in front of female soldiers, and exposure to extremes of room temperature.

In at least one instance, these techniques were repeated daily for more than seven weeks with a detainee who had already been kept isolated for many months.  It is apparent that no new information of any substance was obtained from this individual as a result of this “aggressive interrogation”.  (This echoes the remarks made to me by a former senior official of the Secret Intelligence Service: “Not only is torture illegal and morally wrong, it doesn’t work anyway”.)  The Bush administration eventually charged the individual with a list of terrorist offences including murder, only to withdraw the charges a few months later, admitting that the way he had been treated “met the legal definition of torture”.

Indeed, that admission of torture is significant.  Eventually, the Bush administration was constrained by proper legal process.  In 2006, the Supreme Court ruled that Guantanamo detainees were subject to Common Article Three of the Geneva Convention and had to be treated humanely.  And by then the various documents authorising “aggressive interrogation” had been revoked.

However, the process by which those documents had originally been produced is fascinating.  Legal advice was obtained, so that those acting on the authorisation could be assured that “aggressive interrogation” was lawful.  However, as Sands points out this advice was not authoritative and bypassed the proper channels (in particular, those lawyers within the military who would have challenged what was being suggested).

Sands draws a distinction between lawyers offering advice and those providing advocacy for a point of view.  The former must present the law clearly and indicate if their advice would be commonly accepted or is likely to be accepted by the Courts.  The arguments used as part of the advocacy of the latter is not the same as advice.

Sands concludes that the lawyers involved in the decisions to authorise “aggressive interrogation” are just as culpable as those who actually made the decisions.

Whether or not any of this leads to charges in the US or elsewhere for war crimes is one thing, but the lessons about advice are relevant to all politicians whatever the level of the decision being taken.

I remember as a local council leader often seeking advice on the legality of policies proposed.  While a legal opinion that supported the proposed action provided protection to those councillors making the decision, it was much more important to know whether the decision was sustainable (rather than arguable) if the matter was ever challenged in court.

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