Philippe Sands on Torture

Philippe Sands gave an extensive interview on NPR’s Fresh Air yesterday.  Sands is already on record with his view that torture has occurred as a part of U.S. detention policy at GTMO and that high level officials are responsible for these acts.  Although I’m not sure he had much new to say, his careful and eloquent arguments make for easy listening.  He touts the recent Armed Services Committee report and the NYT editorial as consistent with his views.  And Sands names names. But he qualifies his campaign as one focused on investigation, not prosecution, to see which officials were responsible for waterboarding detainees, acts he views as clearly constituting torture.  Highest on his list, despite the lack of a paper trail, is David Addington, followed shortly by Donald Rumsfeld and Jim Haynes.  He characterizes Alberto Gonzalez as a “bag carrier” and John Yoo, as a “rubber stamp,” but both make his top 5.  Also on Sands’ radar screen are Doug Feith and Paul Wolfowitz.

I’m dubious that Sands’ views will have much traction with an Obama Administration seeking to heal a bipartisan divide and deal with a host of other pressing problems.  Indeed, like the NYT editorial, Sands recognizes the gap between what he’d like to see happen and what will likely happen.  As a result, he focuses his advice for Obama in a less punitive direction: (a) an independent inquiry of the process by which torture was allowed to occur by someone like Patrick Fitzgerald; (b) an unequivocal rejection of torture by the USG in accordance with international standards, namely the Convention against Torture (CAT); (c) a quick closure of GTMO; and (d) a return to criminal law frameworks for combating terrorism in lieu of the “war on terror” moniker, which Sands suggests has caused the same sorts of problems that arose in debating how to characterize the IRA during The Troubles.

In particular, I found two of Sands’ statements quite provocative.  First, at several points in the interview, he talked about universal jurisdiction and the legal duty states have to prosecute those who violate the CAT.  He even crafts a Pinochet-like hypothetical where a former-Bush Administration official finds himself abroad and subjected to an extradition request by a “Belgian prosecutor.”  Maybe it was unintentional, but listening to Sands, I got the sense that his hypothetical might have some grounding in reality (indeed, he made special mention of how prosecutorial networking had preceded Pinochet’s arrest). Given his own networks within the various European legal communities, I would not be surprised if Sands was speaking in more than mere hypotheticals here.  I’d be interested to know if others share my impression of Sands’ comments.

Second, Sands made an interesting argument about the importance of Eric Holder’s confirmation as Attorney General; specifically, what he’ll say when asked if waterboarding is torture.  Sands suggests that if Holder says waterboarding is torture in all circumstances (which the previous two Attorney Generals have refused to do), it will have legal consequences for the United States; i.e., if U.S. officials sanctioned waterboarding and the United States now understands waterboarding to be torture per se, then under the CAT, the United States has a legal obligation to investigate who conducted or authorized such waterboarding and to prosecute or extradite them.  And, if the United States fails to do so, Sands suggests that other countries might step into the breach, relying on Holder (or other nominee statements) as evidence of an international legal violation that binds them to respond.  Although such a move would have significant diplomatic and political overtones, I suspect it’s a much more plausible scenario as we move beyond the Bush Administration.  Indeed, one wonders whether the Obama Administration might even warn former officials off of traveling to avoid having to deal with the problem an arrest would create.  In any event, after listening to Sands, I now plan to listen more closely to how Holder and other nominees deal with the torture question in the weeks ahead.  Their responses may not only signal shifts in U.S. detention policy, but also frame foreign states’ own legal options vis-a-vis U.S. detention practices and the CAT.