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Interview with Geoffrey Robertson QC -

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Interview with Geoffrey Robertson QC

Broadcast: 17/11/2008


TONY JONES, PRESENTER: Human rights lawyer and UN War Crimes judge Geoffrey Robertson QC is a
longstanding critic of Guantanamo Bay and the lawyers who sanctioned its interrogation regime.

I spoke to him a short time ago in our London studio.

Geoffrey Robertson, thanks for joining us.


TONY JONES: Barack Obama says one of his priorities will be to close Guantanamo Bay. Well, once he
does that, what happens to the inmates, the detainees?

GEOFFREY ROBERTSON: Well, that's the $64 question. He's got no alternative, really, but to close
Guantanamo. Even John McCain was going to close it. It's no use. It was set up on a fraud. The Bush
lawyers, as they can literally be called, advised the President that by using this little leased
place off Cuba, they could avoid the Geneva conventions, they could waterboard, they could torture,
they could be immune from habeas corpus. And the Supreme Court - and one of the great results of
Barack Obama's win, is that you maintain the liberal majority on the Supreme Court struck all of
these idiotic notions down. Geneva conventions did apply, habeas corpus applied, they had to give
them proper trials. So, there is finally, after these three great Supreme Court decisions, no point
in Guantanamo Bay. It can be moved to the mainland. And these 255 prisoners who remain can either
be tried or released. There are probably a third of them the Americans have got reasonable evidence
against. So they can - they've got a choice: they can try them in a federal court in front of a
jury, they can put them before a proper military court-martial as prisoners of war, or they could
invite some international judges to sit with American judges and have a kind of ad hoc
international tribunal. Some of the Obama people whom I know are quite keen on that, have been
quite supportive, and so that might be a third possibility. But those - that's not a problem. The
third of the people they've got evidence against can be dealt with, can be tried in one of those
proper ways.

TONY JONES: And what about trials that have already been conducted under the military tribunals and
the system which will now effectively be defunct, and that includes, obviously, the first of those
trials, that against David Hicks?

GEOFFREY ROBERTSON: Yes, of course. I think it's time while we've still got the monarchy to give
David Hicks a royal pardon because his trial was obviously an expedient at the request of an
Australian Government that needed to sure up votes. It was not - no one looks on it as a proper
judicial procedure at all. But the real question, of course, is you can put one third of the
inmates on trial because you've got evidence against them. One third against whom you haven't got
evidence you can send back to countries who will take them and maybe deal with them, keep an eye on
them, ensure that they don't drift into terrorism if they were ever that way involved. They may be
more inclined to do that after being holed up at Guantanamo for six years. But the other - the real
problem is the final third, against whom there's little evidence, not enough to bring to trial, but
still suspicion and what do you do with them, where you can't immediately find countries of
nationality that will take them.

TONY JONES: Do you know what answer is to that? I mean, have the Obama people, have his legal
advisors thought this through?

GEOFFREY ROBERTSON: A number of - well, ha, I've suggested one answer, which is to use a form of
house arrest that has been pioneered in England under the Human Rights Act which is compatible with
the human rights, allows them a degree of freedom but sufficient surveillance to ensure that they
can be no possible problem there. Computers get taken, their phones get tapped, they're allowed to
go shopping a few hours a day but kept under a degree of surveillance; they can stay with families
and so on. And there is - that is one possibility to adopt this form of house arrest as it's called
or bail conditions in effect. It's a kind of limited freedom to be with family and to go about a
degree of business while being kept under surveillance, until some disposal can be made, until a
country can be found to take them. And there's no reason why that can't happen, why they can't have
that limited freedom on the American mainland and not on this little place that was designed
wrongly by the Bush lawyers as a kind of black - legal black hole, where they thought they could
get away with torture. So that is ...

TONY JONES: Yes, you've raised the issue of torture. And that's the other half of the equation
because Obama's attempt to regain America's moral stature in the world, as he said, is all about
that. And including the fact, as he says, America repeatedly - or he's repeatedly said America
doesn't use torture. The problem is America did use torture and it used torture against some of
these key people, and including some of those masterminds of 9/11. So what happens to their trials?

GEOFFREY ROBERTSON: Tony, the question - the first question is where it used torture. And that's
very important and quite significant and it's not a matter that's been thought about very much and
it should be. It has been - it has used waterboarding, it's admitted, and it has used a special
rendition through a little island in the Indian Ocean called Diego Garcia, which is part of a chain
of islands, the Chagosian Islands, and thereby hangs the tail, because these islands really belong
to Mauritius. And when Mauritius was granted independence in the '60s, they were held back, they
were offered by Britain to America. And when America decided it needed them - in the Cold War, they
were very useful tracking stations - it excluded Britain rather shamedly, as it now admits. It's
apologised for doing so, pretended that the people there, the Chagosians, were simply blow ins and
could be blown out. And they weren't recognised as a race, as indeed they are. So, the real
question - and they've lived in poverty in Mauritius ever since. And now, the human rights approach
is to look at whether they can be brought back, which would mean, of course, that America would
have to have a proper lease from Britain - indeed, from Mauritius would be more proper - of Diego
Garcia. But you cannot have - and this is something that the British Government is going to have to
face - that you cannot have as landlord, as it were, a tenant that tortures people and uses your
property for improper and illegal transactions, like special rendition. So, I think the question of
Diego Garcia is going to become increasingly important.

TONY JONES: What about the actual individuals against whom waterboarding and other forms of torture
were used during their

interrogations? And I'm thinking of people like ...

GEOFFREY ROBERTSON: Yeah, because in Britain, it's very simple, we ...

TONY JONES: Khalid Sheikh Mohammed - well just hang on for one sec'. Khalid Sheikh Mohammed, who's
apparently one of the masterminds of 9/11. Also, Hambali, the man who is supposed to be the
mastermind of the Bali bombings. Now, if those men were tortured, what does that mean for their
subsequent trials?

GEOFFREY ROBERTSON: Well what it means is very clear: that evidence or confessions obtained by
torture should not be used against them. If they've confessed before, the question of
waterboarding, or if there is other independent evidence, then obviously their trials can go ahead.
The real problem, as I see it, is the lingering traction of the American military for the death
penalty, sometimes in fact inflicted by firing squad with the whole obscene ritual where one member
of the squad is given a blank. And Khalid Sheikh Mohammed would be very much in line for that
treatment. And that would be another problem for America. I think Obama and Obama's people - he's
got some of his leading people are human rights advocates, in a past life, and undoubtedly want to
reclaim the moral high ground that has been so tragically lost by the Bush administration in the
last eight years. But - and they do. And they will have to deal with questions like the
admissibility of evidence obtained by waterboarding and indeed the problem of inflicting the death
penalty. The ludicrous thing about inflicting the death penalty on people who pray for it every
day. I mean, there's nothing that Khalid Sheikh Mohammed and co. want rather than in their own mind
a fast track to paradise by being executed by the Americans. So, this is really - the death penalty
is really rather what the Briar Patch was to Brer Rabbit. And hopefully these considerations will
be taken on board. But they are some of the problems that the Obama administration with all its
goodwill and all its determination to retain or regain the moral leadership of the world will have
to grapple.

TONY JONES: Will it inevitably, though, taint any trial if part of the evidence was gained under
torture or, alternatively, if any of the evidence was gained under torture, could you set aside
that part of it and only look at concrete evidence and say - basically ignore the past, ignore what
happened? Can courts do that?

GEOFFREY ROBERTSON: Oh, yes. I think certainly the position in Britain and I hope the position in
Australia - although one never knows, Australia is bereft of any sort of bill of rights or human
rights act, so I don't know what the decision would be there. I would hope it would be the same as
the senior court in Britain a year or so ago which said on no account will evidence obtained by
torture be allowed in because it's been contrary to the common law ever sense the abolition of Star
Chamber in 1640. But that doesn't mean that if you have to set the man free, you have to consider
the other evidence. There may be independent evidence that is available and then you can use that
to convict him.

TONY JONES: OK. So, there isn't a kind of horrible logic to all of this where if they are tortured
then they'd have to be set free because the trial and the case itself would be tainted?

GEOFFREY ROBERTSON: No, No. No, no, of course not. But in the event of conviction, the penalty of
course could be mitigated by the fact he's been put through unlawful torture.

TONY JONES: So, we - could you imagine a situation where numbers of these people turn around and
use the American justice system against the American officials and the American Government itself
for having used the instrument of torture against them?

GEOFFREY ROBERTSON: Let's face it, the Americans themselves can be pretty good at investigating
eventually, and there is a congressional committee at the moment looking at the behaviour of the
Bush lawyers, as they are in both senses of the word who gave such perverted advice as that they
defined torture as something that caused pain the equivalent of the loss of a bodily organ. I mean,
that's absolutely wrong. They gave advice that it wasn't ill treatment to have men standing naked
with Alsatians growling at their genitals. They gave advice that it was entirely proper to subject
prisoners for hours on end to high-pitched noises, everything from cats meowing to Yoko Ono
singing, blasting them for 24 hours. I mean, this is - this is a currently ongoing inquiry as to
whether the lawyers who served the Bush administration and gave their masters the advice that was
wrong but which they thought they wanted. I mean, lickspittle lawyers there've always been, but
these particular lawyers went out of their way to define torture in a manner which meant that many
prisoners, between 2002 and 2004 - this is, thank goodness in the past - were in fact subjected to
illegal physical force.

TONY JONES: Just very finally and briefly can you imagine those lawyers will be made to pay a price
for giving that advice?

GEOFFREY ROBERTSON: Yes, I think there will. I mean, some of them were appointed by the Bush
administration to judgeships, I think they're being hauled over the coals, books are being written
about them, there are discussions in various circles about whether they could be prosecuted. I
don't know whether you remember the film "Judgment at Nuremberg", but that was based on the
Olstoter case, which was a case of corrupt lawyers who gave advice that they knew to be wrong. It's
a new - it's a difficult area, but certainly, there will be consequences, I think, and they will
continue and rightly so, as a warning to all who are involved in this difficult area that they
shouldn't, as it were, twist the law to subject people to improper violence.

TONY JONES: Geoffrey Robertson, we will have to leave it there. We thank you very much for taking
the time to talk to us once again on Lateline.

GEOFFREY ROBERTSON: Good to talk to you, Tony.