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LATE NIGHT LIVE
Monday, 14 March 2005
PHILLIP ADAMS: Despite our faintly frivolous theme, this program does tend to deal with some pretty ominous and difficult subjects. We have a bit of a reputation for it, really, and I must warn you there’s not too many laughs ahead of you tonight.
We’re going to be talking to Ron Neilsen, who’s a former researcher from the Department of Nuclear Physics at the ANU. Ron’s worked in research institutes in Poland, England, Germany and Switzerland and he’s put together a book which deals with such amusing topics as the destruction of the atmosphere, the water crisis, an increasing ability to inflict terrible things on each other, the population explosion, et cetera. But it’s not a book of hypothesising, it’s a book of facts which he’s gathered together from all sorts of inter-related disciplines. And I think you’ll find that challenging.
But the first book we’re going to deal with is probably the most significant book we’ve dealt with so far this year, and in fact it will be hard to top it. It weighs in at about 1,300 pages, it’s a whopper, and there’s not a laugh in it. It’s called The Torture Papers: The Road to Abu Ghraib and it sets out in a single volume the US government’s memoranda and reports that seek to justify the terms of detention and interrogation of prisoners in Afghanistan, Guantanamo Bay and, of course, in Iraq.
These memos also show how international laws and treaties have been reinterpreted to evade liability should there be any discovery of these practices and policies. It is simply breathtaking and gobsmacking. And joining me from his home in New York is one of the co-editors.
Joshua Dratel is President of the New York State Association of Criminal Defense Lawyers, he’s a member of the board of directors of the National Association of Criminal Defense Lawyers, and he happens to be the lead defense counsel for David Hicks.
Joshua, welcome to our little wireless program and I thank you very much for getting up so early.
JOSHUA DRATEL: You’re welcome, thank you for having me.
PHILLIP ADAMS: In your introductory piece to this whopping book you write that the policies that result in rampant abuse of detainees, first in Afghanistan, then at Guantanamo Bay, later in Iraq, were the product of three pernicious purposes designed to facilitate the unilateral and unfettered detention, interrogation and abuse leading to judgment and punishment of prisoners. What are those three purposes?
JOSHUA DRATEL: The first was to find a place where at least the government thought that they could keep detainees beyond the reach of the law or of any courts, and that was essentially Guantanamo Bay. The administration’s initial objective was a place that it could do what it would to these detainees without review by any independent body such as a court.
The second was to absolve itself of war crimes, of liability, which is the second issue that is addressed in these memos. The first is really finding a place or establishing that Guantanamo is beyond the reach of courts; the second is, once that is done, the people who follow this policy, or implement this policy, are then free from any concern that they’re going to be held to account.
PHILLIP ADAMS: Or they can abrogate the Geneva Convention, et cetera, without fear?
JOSHUA DRATEL: That’s right, that’s right. And then the third is to devise the policy essentially, as it would, to these detainees without any regard for intervention by any authority.
PHILLIP ADAMS: Let’s start with the first one, and the location that until recently placed the detainees beyond the reach of any court of law. And I must say, Joshua, we’ve done some programs on the decision of those two district judges who ruled on the law suits by detainees at Guantanamo Bay. But let’s explain to the listener who doesn’t have legal training, necessarily. What arguments were put forth that made Cuba the perfect place for this purpose?
JOSHUA DRATEL: The American military base in Cuba is leased to the United States by the government of Cuba and it is essentially a lease for all purposes, although Cuba retains technical sovereignty over the territory in the sense that it is not ceded to the United States for ever and for all purposes. So Cuba retains ‘sovereignty’, but that’s really just a technicality as the Supreme Court ultimately found, in the United States’ right to use that fact, that limited retention of Cuban sovereignty as a means to say that United States laws apply. But, in fact, the US didn’t recognise Cuban law either, so in a sense the US was trying to create a place without any legal protection whatsoever.
The Supreme Court decided, quite correctly, that Guantanamo, in fact, even if it wasn’t US sovereign territory in a technical matter, it certainly was within United States control for all purposes and all practical purposes, and as a result US courts had jurisdiction to exercise US law. And, by the way, that’s consistent with civil practice because there is a bunch of US corporations in business there. There are McDonalds and other US corporations that contract down there, and anything that happens in that context in a civil court of course would be governed by US law not Cuban law, and not any other type of law imported in, but rather US law. And then also US law also governs the conduct of soldiers down there in their interactions between each other.
So the US position was really a fiction that was completely separate from the ordinary practice of law that had occurred in Guantanamo at the beginning of the United States presence there, in the early part of the 20 th century.
PHILLIP ADAMS: Joshua, this is in parentheses, but have the Cubans made any attempt to get out of this treaty?
JOSHUA DRATEL: No, but there was an interesting development during the early part of the Castro regime. In the early to mid-60s the Cubans stopped accepting rent from the United States, which was a virtually nominal rent. The US President started this at the Spanish-American war. Cuba was a Spanish territory and the United States’ intervention in the Spanish-American war freed Cuba essentially from Spanish domination. Cuba became an independent state but ceded that particular part of the island to the US.
But after Castro took power in the early 60s the tension between the US and Cuba, and the lack of relations, resulted in essentially the isolation of the base from the rest of the island. There used to be, obviously, a lot of traffic back and forth, but since then I think there are a couple of workers who still go back and forth for their jobs, but that’s diminishing because obviously as they get older it’s attrition that reduces it.
PHILLIP ADAMS: But Joshua, it is the most extraordinary anomaly, isn’t it, that this piece of Cuba is used for this arcane purpose? Anyway, let’s move on.
Because Afghanistan, under the Taliban, was deemed to be a failed state and that al Qaeda was a non-state act, legal advice to the President was that neither the Federal War Crimes Act nor the Geneva Conventions applied to the detention conditions in Guantanamo Bay or to trial by military commission of al Qaeda or Taliban prisoners. It sounds vaguely plausible. What’s wrong with this legal advice?
JOSHUA DRATEL: What’s wrong with the advice is that it defies the facts. And, you know, what’s interesting is that even within the government there was strong dissent from the Department of State as to this very position. Just to give you three examples of why, as a matter of fact, and then also legally it’s also invalid legally, which the courts have held, since two out of the three courts that have ruled on this in the District Court in Washington DC have also held this. But first it is a matter of fact.
One of the examples they said was: well, the Taliban doesn’t control its entire territory, physically. Well, that applies to an extraordinary number of governments around the world including, let’s say, the Philippines and Colombia and other countries that have rebel activity or outlying provinces that are outside the control of the central government, as a matter of fact. So that certainly shouldn’t disqualify the Taliban as the constituted government for purposes of the Geneva Convention analysis.
The second is the Taliban is not recognised by the United Nations. Just the same, Taiwan is not recognised by the United Nations, but I would doubt that the United States would permit … or say, if the people of the Republic of China were to launch a milit ary campaign against Taiwan, I doubt the United States would stand idly by if the People’s Republic said: well, the Geneva Convention doesn’t apply to our treatment of Taiwanese prisoners.
And the third issue is the fact that they say that since the Taliban was dominated by al Qaeda that it did not deserve status as a state because it was dominated by a terrorist group. And all one has to do is go back and look at Nazi Germany, in the sense that the government of Germany was dominated by the Nazi party which, in terms of terrorist activity, is certainly not matched even by the Taliban or al Qaeda. Yet the US had no doubt that the Geneva Convention applied to German soldiers whether they were Nazis or not.
As a matter of law, what the US government did in this instance, and the President, was unilaterally and en masse, was declare a whole class of persons to be outside the Geneva Convention. That is contrary to the convention. The convention requires a case by case, person by person, detainee by detainee determination of their status. Are they prisoners of war? Are they civilians? Are they something else?
PHILLIP ADAMS: How often has a US president chosen not to impose customary laws of war in any conflict the US has been involved in?
JOSHUA DRATEL: This is the first time. The rudimentary laws of war, as they have developed, began in the US during the Civil War, and ironically—when I say ironically, because in terms of national interest or jeopardy to the United States there was probably no greater episode than the Civil War in the 1860s in the United States. Yet the initial codes of military conduct that were developed were very specifically applied to people just like the Taliban and al Qaeda irregulars as well as regulars, persons out of uniform, persons who were considered guerrillas. Yet torture was prohibited and there were very strict rules about how you could treat combatants, regardless of their category.
PHILLIP ADAMS: Heavens above, okay. There were many memos going back and forward over the applicability of the Geneva Convention to the conflict in Afghanistan. Colin Powell, who was then of course Secretary of State, had some concerns which he sets out in a memo to the Council to the President. Can you remind the listeners in Australia what were his concerns?
JOSHUA DRATEL: His concerns were first reciprocity, meaning that if the US failed to apply the Geneva Convention to enemy within its control, then there was nothing to prevent the enemies of the United States, not just in the conflict of Afghanistan but any future conflicts, from applying the Geneva Convention.
PHILLIP ADAMS: But that’s why the Geneva Convention has always been such a powerful argument, hasn’t it?
JOSHUA DRATEL: Absolutely. That’s the fundamental principle, other than the whole concept of what a civilised world does in the context of treatment of prisoners, the reciprocity aspect of it is what holds it together, that’s what binds it.
PHILLIP ADAMS: Do unto others, et cetera. It was interesting, wasn’t it, but perhaps not surprising, to read in a memo from Alberto Gonzales, who was then counsel to the President, that he thought this new type of war against terrorism rendered obsolete, obsolete, Geneva’s strict limitations on the questioning of enemy prisoners and rendered quaint some of its provisions regarding or requiring that captured enemy to be afforded such things as legal privilege.
JOSHUA DRATEL: Yes. And I think obviously that was a statement that not only wasn’t true factually because like I said the notion of a group like al Qaeda being a dominant part of a government which is what they claim, or that there’s some group or philosophy that is controlling a state, is really not very different than Nazi Germany, yet there was no question that the Geneva Convention applied.
The other problem with it just generally is that I think it was a product of panic and frustration at what happened on September 11 th , and it was just a lack of recognition that regardless of the nature of the emergency that we still had—when I say ‘we’, it’s the United States—we still had to play by the rules of international affairs. It did not give us the right to abrogate the rules unilaterally, to pick and choose a treaty that we would adhere to so radically ….
PHILLIP ADAMS: But this is important to maintain your own national decency, isn’t it?
JOSHUA DRATEL: That’s right. In other words, in order to preserve security we would forfeit all those things that make our security worthwhile.
PHILLIP ADAMS: Joshua, I could spend the rest of the time we have together simply reading from the category 1, 2 and 3. These are the techniques which are permitted for interrogation. Category 1 is the mildest, and even that is bad enough, but boy, they get pretty rough, don’t they?
JOSHUA DRATEL: Yes. And what’s interesting about them is that … and many of them weere approved by Donald Rumsfeld in the later part of 2002, and then implemented throughout the next phase of the detainee process. And what’s interesting about it is it talks about counter-resistance techniques. But there’s never an analysis, or there’s never any empirical analysis as to first why these techniques are needed in the first place and second is whether they produce valuable or reliable results.
PHILLIP ADAMS: That’s something we’ve discussed earlier on in the program, on other programs, and that is of course that information gleaned under torture is notoriously unreliable.
JOSHUA DRATEL: Yes. And in fact in this instance in Guantanamo the most demonstrative piece of evidence of that is there were three British detainees called the Tipton Three, because that’s where they hailed from, and they’ve since been released. They were released in the summer of 2004. But initially during their Guantanamo detention after suffering through this type of treatment, these category 2 type techniques that the government used, including the stress positions where they were left in these very painful physical positions, shackled in either extreme cold or extreme heat, for extended periods of time, all of that.
But anyway, they finally admitted, these three, that they had been present and were in a Osman bin Laden video that was filmed in Afghanistan before September 11. And when the British intelligence was given this information, British intelligence attempted to verify it by trying to prove the negative. But in fact what they were able to prove is that all three were actually in London at the time that the video was shot, meaning that they could not have been in it, but yet that was produced as a confession. And it’s that type of problem with torture that ultimately the subject breaks down and gives the interrogator what the interrogator wants to hear.
PHILLIP ADAMS: Would you be kind enough to remind my listeners what became of Alberto Gonzales, counsel to the President, who talks about the Geneva Convention being obsolete and quaint. Was he in fact dismissed? Has he been sent to outer darkness, or has he, perhaps, had a rather big improvement in his career?
JOSHUA DRATEL: Unfortunately he was promoted to the top law enforcement official of the United States, the Attorney-General of the United States, and he’s already been confirmed by the Senate. In addition, not just ….
PHILLIP ADAMS: What were the Democrats doing that day, for heavens sake, Joshua? How did that guy get through?
JOSHUA DRATEL: I think there were two issues, or maybe even more issues, that arose simultaneously. And it’s not just that Mr Gonzales obviously had this relationship with the torture policy but also as the first Hispanic nominee of Attorney-General, I think many Democrats were probably hesitant to challenge him, because of that aspect of it, and the large Hispanic vote there is now in the United States.
PHILLIP ADAMS: So Realpolitik, pure and simple?
JOSHUA DRATEL: Yes, yes. I think it was just political priorities.
PHILLIP ADAMS: Okay. I’m passing over tonnes of material here which describes what can be done to someone being interrogated under Category 1, Category 2 or Category 3, and they get progressively more hideous. But the US is a signatory to the Convention against Torture and other cruel, inhuman or degrading treatments or punishments. It has its own laws against torture and other cruel, inhuman or degrading treatments. It is signatory to many more international treaties. Bush hasn’t been able to tear these up too easily. How has the government gone about absolving those implementing the policy of torture of any liability for war crimes under US and international law, such as it is?
JOSHUA DRATEL: Well, in two ways. I think the first is that essentially all of the investigations that have been conducted by the government itself, either the Department of Defense or other organs of the military have just simply stopped short of analysing what the accountability is of those who develop the policy. What they do is they create this completely artificial disconnect between the conduct of the soldiers in the field, which has been demonstrated they’ve been abusive, and just completely disconnect that from this overarching policy created at the top and to say: well, we haven’t found any evidence that they’re linked. But of course they’re linked because one, you have the policy and then you have it enacted, and that’s pretty strong circumstantial evidence. But in fact you also have not investigated or probed the middle ground as to how that policy was communicated and filtered down through the chain of command and by not pursuing that they’ve essentially given them a free pass.
PHILLIP ADAMS: Leafing through the memos, you are confronted by what you describe as the corporatisation of government lawyering, that is you’re looking at a result-orientated system where they start with an objective and work backwards.
JOSHUA DRATEL: Yes, yes. And my references to situations as a criminal defense lawyer in the United States that I see in corporate cases which is when corporate lawyers are given a mandate by, let’s say, a chief executive of a corporation and against their better judgment they follow it in order to save their job or to promote some sort of corporate policy that’s important to the corporation, their duty of representation is to the corporation and sometimes they confuse that with their ethical responsibility as lawyers. And here even government lawyers have another responsibility which is to the Constitution and to the people they serve—and when I say ‘people’ I mean the entirety of the United States and the public.
PHILLIP ADAMS: Sure.
JOSHUA DRATEL: … just simply a supervisor in an office.
PHILLIP ADAMS: Can you offer, in the brief time we have left together, some solution, some suggestions at least, that might be employed to get the US government back on track?
JOSHUA DRATEL: Well, the first would be unfortunately—and the Congress has forfeited the chance in the first instance, which is accountability for those involved and to stop them from being promoted and stop the career track that has people profit from participation. There are two other persons who were nominated for judgeships who are intimately involved in these memos, and we’ll see what Congress does with them.
But the second one is, there has to be an independent commission with full subpoena and investigatory power that gets to take a look at this whole policy from top to bottom, connects all the dots and really gets into a question of open accountability for those responsible, not just for the specific abuse that a detainee suffers at the direct hands of someone who’s really responsible for the climate, the environment and the policy that allows that to occur.
PHILLIP ADAMS: Joshua, are you getting a lot of support for this proposition? Is there are groundswell of anger in your profession, in the Senate and Congress, in the media? I suspect not.
JOSHUA DRATEL: Well, in the profession I think there is. In Congress, unfortunately, it has not reached any kind of critical mass, although in a response to the most recent Defense Department report that was released Friday, that essentially absolved the upper echelon government officials of any responsibility for what’s occurring in the field. One senator has called for an independent commission, so we’ll see if that has any traction, as they say.
PHILLIP ADAMS: It would be remiss of me, Joshua, not to end with a question about David Hicks. Where is his case up to and what might he have to look forward to under these policies we’ve been talking about tonight?
JOSHUA DRATEL: David’s military commission is right now in abeyance because of the District Court decision in Washington in his habeas corpus case that has invalidated the commissions on two separate grounds. It’s in violation of the Geneva Convention and in violation of the uniform code of military justice that the United States operates under ordinarily. And that case is on appeal by the government in the Court of Appeals for the District of Colombia. It’s anticipated that, along with the other two cases that we discussed earlier, that it will go to the Supreme Court again and we don’t know precisely when David’s commission case would resume, if it resumes at all, because certainly if the lower court decision is affirmed we believe that will put an end to the process and David should be sent home to Australia.
David also, obviously, has great interest in the issue of detainee abuse, not only because of his own treatment but also the treatment of others who may have provided evidence against him and whether their statements are valid, not only in terms of fact but also in terms of whether ….
PHILLIP ADAMS: I’d never considered that, Joshua, that’s a very interesting point.
JOSHUA DRATEL: Yes. The entirety of the case against David may very well come from people whose statements were obtained by these very methods that we’re talking about.
PHILLIP ADAMS: Thank you very much, Joshua. Joshua Dratel, President of the New York State Association of Criminal Defense Lawyers, a member of the board of directors of the National Association of Criminal Defense Lawyers, lead defense counsel for Hicks, and co-editor with Karen Greenberg of this massive book The Torture Papers published by Cambridge University Press.