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UCL FACULTY OF LAWSPhilippe Sands QC

Professor 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 20515-6216By email5 September 2008Mr Chairman:

Hearing on Administration Lawyers and AdministrationInterrogation Rules, 15 July 2008

Thank you for providing me with a copy of Mr Feith’s 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 Feith’s 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 of

Vanity Fair

magazine.Against this background, my response can be relatively brief. I have set out the key issues in my letter of 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 LondonBentham House Endsleigh Gardens LondonWC1H 0EG

Tel:+44 (0)20 7679 4758Fax:+44 (0)20 7679 3933

p.sands@ucl.ac.ukwww.ucl.ac.uk/laws/sands

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 3 protections”. 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 understandMr Feith’s position on Geneva, and recognise the distinction between rights under Geneva for POWsand rights under Geneva for non-POW’s (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 24

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 hestated to me, the Geneva Conventions did not apply at all, then it follows

fortiori that CommonArticle 3 of those Conventions would not apply. As regards the Taleban (who were not the subject of my book), I recognise Mr Feith’s view that in respect of these detainees Geneva did apply even if theyweren’t entitled to POW status. The crucial question is what his approach meant in practise for the purposes of interrogation? Mr Feith’s answer to one of my questions provided a clear and unambiguousanswer. I asked:“[E]ither you are an individual to whom the Geneva Convention doesn’t 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 that’s the point.”His answer makes it clear that he believed there was no practical distinction for the purposes of interrogation 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 3“applied” to some detainees, in Mr Feith’s view it apparently provided no protections in relation tointerrogations. Mr Feith’s words seem to admit of no other interpretation. The formal distinction for which 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 Bush’s 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 Mr Feith 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,

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

2002 and July2002 (following the Supreme Court’s 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: “I’m not sure that I ever even got briefed on any of this”, andthen added:“I was not asked about their interrogation techniques”. That is patently untrue, as Mr Haynes’ memo of 27

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 Feith’s 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 anydocuments 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 Feith’s letter restates the points he made during the hearing on 15

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 of which is attached. I refute each of Mr Feith’s 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, if requested. 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 don’tthink in the technical sense it applies, but we’re going to behave as if it does.

Sands

: You distinguish between Taleban, to whom it applied but in respect of whom theycouldn’t have rights because they hadn’t worn insignia, uniforms, etc., and Al Quaeda to whomit didn’t apply. And, as Doug [Feith] put it to me, he was responsible for that formulation. He’snot a man who’s 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 we’d said,I’m 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 didn’t apply?

General Myers

: No, as it would apply, as it did apply.Finally, I reject Mr Feith’s assertion that I have failed to honour any agreement as to the terms of our conversation. It may be that with the passage of time he does not recall that in June 2007 we had anemail correspondence. On June 3

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: