final -5 september 08 - ltr to ch john conyers - house judiciary - 25 july 08

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UCL FACULTY OF LAWS

Philippe Sands QCProfessor of Laws and Director,

Centre for International Courts and Tribunals

John Conyers, Jr.,Chairman,Committee on the JudiciaryHouse of Representatives2138 Rayburn House Office BuildingWashington DC 20515-6216

By email

5 September 2008

Mr Chairman:

Hearing on Administration Lawyers and AdministrationInterrogation Rules, 15 July 2008

Thank you for providing me with a copy of Mr Feiths letter of 13 August 2008, which responds to myletter to you of 24 July 2008, and allowing me an opportunity to address the issues he raises.

I regret that Mr Feith believes that my book does not fairly and accurately reflect our conversation, hisviews and his role in the decision to use aggressive techniques of interrogation on Detainee 063(Mohammed Al Qahtani). His claims are entirely without substance.

The transcript and audio of my interview with Mr Feith are available to the members of the Committeeand anyone else who is interested. You will be aware that I long ago offered to make these available tothe Committee. There is therefore no basis to Mr Feiths assertion that I have somehow been compelledto provide this material. Indeed, in order to get the broadest possible dissemination I also took earlysteps to post the complete materials on the web site ofVanity Fairmagazine.

Against this background, my response can be relatively brief. I have set out the key issues in my letterof 24 July. Mr Feith has chosen not to respond to the points I made, and to ignore those parts of thetranscript that do not support his claims. He has followed a well-trodden path of ignoring his ownwords where they contradict his claims, and ascribing to me views or claims that I have not expressedand proceeding to attack them.

I will not here deal with each and every assertion he makes, but for the avoidance of doubt I want tomake it clear that I reject each and every one of them. I will limit this response to a few examples, toillustrate the extent to which he has fallen into error in his effort to rewrite the facts.

UCL FACULTY OF LAWSUniversity College London Bentham House Endsleigh Gardens London WC1H 0EGTel: +44 (0)20 7679 4758 Fax: +44 (0)20 7679 [email protected]/laws/sands


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Mr Feith asserts that in the book I have alleged that he committed a war crime. I make no suchallegation. What I say is that he and others bear direct responsibility for decisions that led to violationsof the Geneva Conventions (p. 230). They do. It will be for others to determine whether the facts

justify further investigations.

He asserts that my book alleges that [Mr Feith] argued against giving the detainees Article 3protections. I make no such allegation. My conclusion is that as Undersecretary of Defense for PolicyMr Feith did not support rights for any detainees at Guantanamo under Common Article 3. I understand

Mr Feiths position on Geneva, and recognise the distinction between rights under Geneva for POWsand rights under Geneva for non-POWs (including under Common Article 3). What was his position onCommon Article 3 in relation to the detainees at Guantanamo? We did not explicitly address that issuein our conversation, as I noted in my letter of 24th July, but there was no need to: our conversationmade it abundantly clear that Mr Feith took no steps to ensure that any of the detainees at Guantanamoshould have any rights under Common Article 3. On his watch, and with his support, all the detainees atGuantanamo were cast into a legal black hole.

To recap, in February 2002 there were two categories of detainees Guantanamo: Al Qaeda and Taleban.As regards the Al Qaeda detainees (one of whom was the subject of my book), Mr Feith does notdispute that he told me that they were not entitled to have the Convention applied at all. If, as he

stated to me, the Geneva Conventions did not apply at all, then it follows a fortiori that CommonArticle 3 of those Conventions would not apply. As regards the Taleban (who were not the subject ofmy book), I recognise Mr Feiths view that in respect of these detainees Geneva did apply even if theywerent entitled to POW status. The crucial question is what his approach meant in practise for the

purposes of interrogation? Mr Feiths answer to one of my questions provided a clear and unambiguousanswer. I asked:

[E]ither you are an individual to whom the Geneva Convention doesnt apply, or you are anindividual to whom the Geneva Convention applies, but you are not entitled to P.O.W. status.What is the difference in the purpose of interrogation?

Mr Feith replied:It turns out, none. But thats the point.

His answer makes it clear that he believed there was no practical distinction for the purposes ofinterrogation between an Al Qaeda detainee (for whom he believed Geneva did not apply at all) and aTaleban detainee (for whom he believed Geneva did apply). From this I concluded that Mr Feith did notsupport rights for any Guantanamo detainees under Common Article 3. Even if Common Article 3applied to some detainees, in Mr Feiths view it apparently provided no protections in relation tointerrogations. Mr Feiths words seem to admit of no other interpretation. The formal distinction forwhich Mr Feith claims to have argued had no practical consequences. The reality was that on hisapproach no detainee whether Al Qaeda or Taleban could derive any real protections from CommonArticle 3. Hence my conclusion.

Mr Feith writes that I based my conclusions solely on our interview. This too is not correct. Myconclusions relied on conversations with other interviewees and inter alia the decision taken byPresident Bush on 7 February 2002 (to the effect that no detainees at Guantanamo would have anyrights under Common Article 3) and subsequent practise in relation to all the detainees at Guantanamo.

As regards President Bushs decision on Common Article 3, I have not been able to find any evidencethat Mr Feith raised any arguments against it either before or after it was adopted. I assume that if MrFeith believed that at least a few detainees at Guantanamo (Taleban) had rights under Common Article3, as he asserts, he would have articulated that view and provided the Committee withcontemporaneous evidence in support of his efforts. He has provided no such evidence. To the contrary,


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the memo of February 3, 2002 which he attached to his Hearing Statement makes no argument infavour of Common Article 3 rights for any detainees at Guantanamo. His memo confirms my account.

As regards subsequent practise at Guantanamo, the facts are incontrovertible: no detainees (whether AlQaeda or Taleban) were given any rights under Common Article 3 between February 7 th 2002 and July2002 (following the Supreme Courts decision in Hamdan v Rumsfeld). More significantly, Mr Feithactively supported the approval of new techniques for Detainee 063. When I asked him about theinterrogation of Al Qahtani he replied: Im not sure that I ever even got briefed on any of this, and

then added:I was not asked about their interrogation techniques. That is patently untrue, as MrHaynes memo of 27th November 2002 makes clear. That states that Mr Haynes had discussed this with Doug Feith and he believed that Mr Feith joined in his recommendation in favour of the use of newtechniques. Mr Feith has provided no material to the Committee to indicate that he did not support theuse of new techniques on Al Qahtani that so plainly violate the standards reflected in Common Article 3.

The bottom line is that all the materials that are available undermine Mr Feiths claims and confirm myaccount: as Undersecretary of Defense for Policy he did not support rights for any detainees atGuantanamo under Common Article 3. That conclusion flows inexorably from our conversation, fromcontemporaneous documents, and from what happened generally at Guantanamo and specifically inrelation to Detainee 063. That said, through the Committee I can assure Mr Feith that if there are any

documents or other materials in his possession that support a different conclusion I hope he might sharethem with the Committee and thereby allow me and others to take them into account.

Mr Feiths letter restates the points he made during the hearing on 15 th July. It is true that I did notrespond to them on the day, but that was only because I obtained access to his statement only veryshortly before the hearing began. After the hearing I prepared a note responding to each point, a copy ofwhich is attached. I refute each of Mr Feiths claims.

Mr Feith raises a point as to the accuracy of my account of my conversation with General Myers. Iwould be pleased to provide the Committee a copy of the transcript and audio of that conversation, ifrequested. I confirm my account: in the conversation with General Myers it became clear that he waslabouring under a misapprehension as to what decision had been taken on Geneva:

General Myers: But in this case, after all the arguments were done, the decision was, we dontthink in the technical sense it applies, but were going to behave as if it does.Sands: You distinguish between Taleban, to whom it applied but in respect of whom theycouldnt have rights because they hadnt worn insignia, uniforms, etc., and Al Quaeda to whomit didnt apply. And, as Doug [Feith] put it to me, he was responsible for that formulation. Hesnot a man whos shy of promoting his own General Myers: I have to think about that for a minute because, this is a heck of a time, wewere certainly discussing both the Taleban and Al Qaeda in those days and, I thought wed said,Im fairly certain, we said for both groups that Taleban was different from Al Qaeda but in theend, for both groups, we would treat them as if it did apply, to include Sands: As if it didnt apply?General Myers: No, as it would apply, as it did apply.

Finally, I reject Mr Feiths assertion that I have failed to honour any agreement as to the terms of ourconversation. It may be that with the passage of time he does not recall that in June 2007 we had anemail correspondence. On June 3rd I wrote to him to let him know that I would be in Washington DC, inthe following terms:

Might you be available to get to get together briefly? I can also then take you over material Iam using from our last conversation, which I found very helpful.

He responded later that day, as follows:


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I would enjoy seeing you again, but I am under a very tight deadline for my book and cannotschedule anything until I finish that work.

I wrote to Mr Feith again on June 25th:I'm sorry not to be able to catch up with you this time but will look forward to reading you inthe autumn. Once again thank you for talking to me, our conversation was very useful, I'll lookforward to sending you a copy when its published.

Mr Feith responded by return with the following one line email:Philippe -- I'll look forward to receiving your work.

I understood this to mean that Mr Feith did not feel a need to review the material from our conversationwhich I had made clear to him (in my email of June 3 rd) I was using.

I would also be pleased to provide such further assistance to the Sub-Committee as may be helpful.

Yours sincerely,

Philippe Sands QCProfessor of Law, University College LondonBarrister, Matrix Chambers

Attachment

cc. Representative Jerrold NadlerRepresentative Lamar SmithRepresentative Trent Franks


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NOTE

RESPONSE BY PROFESSOR PHILIPPE SANDS TOCLAIMS MADE BY MR DOUGLAS FEITH, 15 JULY 2008

During the course of the hearing before the Constitution, Civil Rights and Civil Liberties Sub-Committee of the House Judiciary Committee on July 15th 2008 Mr Feith referred to a quick list ofwhat I think are errors and distortions in Mr. Sands' book (uncorrected transcript prepared by the

Federal News Service, available on Lexis Nexis). According to the transcript, Mr Feith identified eightissues. Whilst many of his claims are pedantic, none is sustainable.

(1) MR FEITHS CLAIM: He says that the -- that this memo from Mr. Haynes was commonlysilent on the use of multiple techniques. [ ] The memo said that if multiple techniques were used,they would have to be used, quote, "in a carefully coordinated manner."

REALITY: Mr Haynes memo of November 27th 2002 is silent on the use of multipletechniques. The words in a carefully coordinated manner are not taken from Mr Haynesmemo but from a memo dated October 11 th 2002 by LTC Jerald Phifer (which was attached toMr Haynes memo). LTC Phifers words refer to the use of all the Category III techniques: Thefollowing techniques and other aversive techniques, such as those used in US military

interrogation resistance training or by other US government agencies, may be utilized in acarefully coordinated manner to help interrogate exceptionally resistant detainees. LTC Phiferswords do not refer to Category I and II techniques, and in any event they were not taken up byMr Haynes.

(2) MR FEITHS CLAIM:Mr. Sands says that I wanted the detainees to receive no protection atall under Geneva, and that I worked to ensure that none of the detainees could rely on Geneva. On thecontrary, [I] argued that Geneva applied to the conflict with the Taliban and what I said is they shouldnot get POW status. That's very different.

REALITY: My claim is that Mr Feith failed to argue in favour of any detainees at Guantanamohaving any legal rights or entitlements under Geneva. I have seen no evidence to contradict that

claim.Mr Feith and I are in agreement that he argued against any Al Qaeda detainees at Guantanamohaving any rights under Geneva (during the course of our interview Mr Feith said to me: The

point is that the Al Qaeda people were not entitled to have the Convention applied at all, period.Obvious.) We disagree as to his position in relation to Taleban detainees at Guantanamo (it isnot apparent to me that any practical distinction was drawn between Taleban and Al Qaedadetainees at Guantanamo). Mr Feith argued expressly that such detainees were not entitled toPOW status under Geneva. As far as I am aware he made no express argument either way as tothe rights of Taleban detainees at Guantanamo in respect of the rules reflected in CommonArticle 3. He has put no evidence before the Committee to show that he argued in favour ofsuch rights for Taleban detainees. At the hearing on July 15 th 2008 Mr Feith made available acopy of a memo dated February 3, 2002 (entitled Feith draft and Points for 2/4/02 NSCMeeting on Geneva Convention). That document does not argue in favour of Common Article3 rights for Taleban detainees. Thereafter, and until the Supreme Court decided otherwise, nodetainees at Guantanamo (whether Taleban or Al Qaeda) received any rights under CommonArticle 3 of Geneva (or any equivalent tights under customary or other conventional rules ofinternational law).

(3) MR FEITHS CLAIM:I don't recall any part of the U.S. government making the argument thatour conflict with al Qaeda was governed by the Geneva Conventions.

REALITY: Mr Feiths recollection is flawed. Other lawyers in the Administration (as well asuniformed military lawyers) supported the view that Al Qaeda detainees could and should have


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rights under Geneva. For example, as noted at page 34 of Torture Team, on February 2nd 2002Mr William H Taft IV, The Legal Adviser at the Department of State, wrote a memo to theWhite House Counsel concerning the application of Geneva to the conflict in Afghanistan. Hewrote: The President should know that a decision that the Conventions do apply is consistentwith the plain language of the Conventions and the unvaried practice of the United States itsforces into conflict over fifty years. [.] From a policy standpoint, a decision that theConventions apply provides the best legal basis for treating the al Qaeda and Taliban detainees inthe way we intend to treat them. It demonstrates that the United States bases its conduct not

just on its policy preferences but on its international legal obligations. (reproduced in Karen J.Greenberg and Joshua L. Dratel, The Torture Papers: The Road to Abu Ghraib (Cambridge

University Press, 2005), at p. 129). If Mr Tafts approach had been followed, Mohammed AlQahtani (Detainee 063) would have been entitled to rights under Geneva (as an Al Qaedadetainee apprehended in Afghanistan).

(4) MR FEITHS CLAIM:Mr. Sands says that if detainees do not get POW or Common Article 3protections, then, quote, no one at Guantanamo was entitled to protection under any of the rulesreflected in Geneva. That's not true. There are various protections that they might get, including

ICRC visits, repatriation after the conflict, possibly Article 5 tribunals and other -- and othermatters.

REALITY: I do not make the claim asserted. POW or Common Article 3 rights are not per seor necessarily connected to the other rights under Geneva that are here referred to. The reality

is, however, that until the Supreme Court acted no detainees at Guantanamo had any rightsunder Geneva. Mr Feith has put forward no contemporaneous or other evidence to show that heargued for a different position.

(5) MR FEITHS CLAIM: Mr. Sands says that I solidly resisted the idea of returning anydetainees. The fact is I favored returning detainees and, in fact, wrote the policy for doing so.

REALITY: At p. 43 ofTorture Team (Palgrave Macmillan) I write: By May [2002] Dunlaveyhad concluded that half the detainees had no intelligence value at all. He reported this toRumsfeld, who told him to take his problem to Feith, who would pass them on. In Feith he metsolid resistance to the idea of returning any detainees, so it was on with the interrogations, evenif the usual techniques wouldnt work. This passage is based on what I was told by Major

General Dunlavey, and it plainly relates to the situation as at May 2002. A small number ofdetainees were released later that year, as Major General Dunlavey told me, including a manwho claimed to be more than 100 years old (see Torture Team, p. 50). Mr Feith has provided noevidence to indicate precisely how many detainees were released during 2002, or on what dates.

(6) MR FEITHS CLAIM:Mr. Sands says that Secretary Rumsfeld did not reject the Category 3interrogation techniques in the SOUTHCOM proposal. But he did reject them. They were proposed,and he did not authorize them. By any common definition of reject, they were rejected.

REALITY: Secretary Rumsfeld nor Mr Haynes did not reject the Category III interrogationtechniques. One such technique was approved for blanket use. As regards the other three, MrHaynes wrote: While all Category III techniques may be legally available, we believe that, as amatter of policy, a blanket approval of Category III techniques is not warranted at this time. OurArmed Forces are trained to a standard of interrogation that reflects tradition of restraint.Whilst blanket approval on policy grounds was not authorized on December 2 nd, 2002, thefuture use of these three techniques (including waterboarding) remained available for use on acase-by-case basis and was not rejected as a matter of law.

(7) MR FEITHS CLAIM: Mr. Sands says that I hoodwinked General Myers. I spoke the GeneralMyers yesterday and he says that we were, in fact, in agreement about Geneva, and the Generalauthorized me to say that he believes the Sands book is wrong to say that he was hoodwinked.


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REALITY: The notion that General Myers was hoodwinked by Mr Feith was put to me by asenior military officer, as I describe at p. 90 of Torture Team: As one seasoned observer ofmilitary affairs put it to me, Myers was well and truly hoodwinked .. I can do no more thanrefer the reader to the relevant pages of my book, which set out fairly and accurately the detailsof my interview with General Myers. I had the impression that General Myers was candid withme, although it was clear that he appeared to have misunderstood (1) what had been decidedabout Geneva (he told me that we were certainly discussing both the Taliban and Al Qaeda inthose days and, I thought wed said, Im fairly certain, we said that Taliban was different from AlQaeda but in the end, for both groups, we would treat them as if it [Geneva] did apply, TortureTeam, p. 89), and (2) the source of the new interrogation techniques recommended by Mr

Haynes (he indicated to me his belief that they had come out of [Field Manual] 34-52, TortureTeam, p. 93). I would have no objection to make available to the Committee the audio andtranscript of my interview with General Myers.

(8) MR FEITHS CLAIM: Mr. Sands accuses me of circumventing Geneva. I never did that oradvocated that. And with respect to Common Article 3, while I raised the question -- while it was beingdebated, before the president made his decision in February, 2002 -- later, when the issue came upagain, my office was active in raising the question about why Common Article 3 can't be used, and if itcan't be used as a matter of law, why should it not be used as a matter of policy to define humanetreatment.

REALITY: The bottom line is that from February 2002 no detainees at Guantanamo had any

rights under Geneva. That decision was taken on Mr Feiths watch, and he has put no evidencebefore the Committee to show that he opposed or did anything other than support that decision.Similarly, Mr Feith has put no evidence before the Committee to support the claim that his officewas active in support of Common Article 3 or any other legal rights for detainees atGuantanamo. If such evidence were to emerge I would of course take account of it.

London, 24 July 2008

final -5 september 08 - ltr to ch john conyers - house judiciary - 25 july 08

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