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John Conyers, Jr., Chairman, Committee on the Judiciary House of Representatives 2138 Rayburn House Office Building Washington DC 20515-6216 By email 5 September 2008
Mr Chairman: Hearing on Administration Lawyers and Administration Interrogation Rules, 15 July 2008 Thank you for providing me with a copy of Mr Feith’s letter of 13 August 2008, which responds to my letter 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, his views 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 Committee and anyone else who is interested. You will be aware that I long ago offered to make these available to the Committee. There is therefore no basis to Mr Feith’s assertion that I have somehow been compelled to provide this material. Indeed, in order to get the broadest possible dissemination I also took early steps 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 the transcript that do not support his claims. He has followed a well-trodden path of ignoring his own words where they contradict his claims, and ascribing to me views or claims that I have not expressed and proceeding to attack them. I will not here deal with each and every assertion he makes, but for the avoidance of doubt I want to make it clear that I reject each and every one of them. I will limit this response to a few examples, to illustrate the extent to which he has fallen into error in his effort to rewrite the facts.
UCL FACULTY OF LAWS University College London Bentham House Endsleigh Gardens London WC1H 0EG Tel: +44 (0)20 7679 4758 Fax: +44 (0)20 7679 3933 email@example.com www.ucl.ac.uk/laws/sands
Mr Feith asserts that in the book I have alleged that he “committed a war crime”. I make no such allegation. What I say is that he and others “bear direct responsibility for decisions that led to violations of 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 Policy Mr Feith did not support rights for any detainees at Guantanamo under Common Article 3. I understand Mr Feith’s position on Geneva, and recognise the distinction between rights under Geneva for POWs and rights under Geneva for non-POW’s (including under Common Article 3). What was his position on Common Article 3 in relation to the detainees at Guantanamo? We did not explicitly address that issue in our conversation, as I noted in my letter of 24th July, but there was no need to: our conversation made it abundantly clear that Mr Feith took no steps to ensure that any of the detainees at Guantanamo should have any rights under Common Article 3. On his watch, and with his support, all the detainees at Guantanamo 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 not dispute 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 Common Article 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 they weren’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 unambiguous answer. I asked: “[E]ither you are an individual to whom the Geneva Convention doesn’t apply, or you are an individual 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 a Taleban detainee (for whom he believed Geneva did apply). From this I concluded that Mr Feith did not support 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 to interrogations. 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 his approach no detainee – whether Al Qaeda or Taleban – could derive any real protections from Common Article 3. Hence my conclusion. Mr Feith writes that I based my conclusions “solely on our interview”. This too is not correct. My conclusions relied on conversations with other interviewees and inter alia the decision taken by President Bush on 7 February 2002 (to the effect that no detainees at Guantanamo would have any rights 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 evidence that 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 Article 3, as he asserts, he would have articulated that view and provided the Committee with contemporaneous 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 in favour 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 Al Qaeda or Taleban) were given any rights under Common Article 3 between February 7th 2002 and July 2002 (following the Supreme Court’s decision in Hamdan v Rumsfeld). More significantly, Mr Feith actively supported the approval of new techniques for Detainee 063. When I asked him about the interrogation of Al Qahtani he replied: “I’m 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 Mr Haynes’ 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 new techniques. Mr Feith has provided no material to the Committee to indicate that he did not support the use 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 my account: as Undersecretary of Defense for Policy he did not support rights for any detainees at Guantanamo under Common Article 3. That conclusion flows inexorably from our conversation, from contemporaneous documents, and from what happened generally at Guantanamo and specifically in relation 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 share them 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 15th July. It is true that I did not respond to them on the day, but that was only because I obtained access to his statement only very shortly 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. I would 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 was labouring 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’t think 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 they couldn’t have rights because they hadn’t worn insignia, uniforms, etc., and Al Quaeda to whom it didn’t apply. And, as Doug [Feith] put it to me, he was responsible for that formulation. He’s not 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, we were 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 the end, 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 an email correspondence. On June 3rd I wrote to him to let him know that I would be in Washington DC, in the following terms: “Might you be available to get to get together briefly? I can also then take you over material I am using from our last conversation, which I found very helpful.” He responded later that day, as follows:
“I would enjoy seeing you again, but I am under a very tight deadline for my book and cannot schedule 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 in the autumn. Once again thank you for talking to me, our conversation was very useful, I'll look forward to sending you a copy when it’s 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 conversation which I had made clear to him (in my email of June 3rd) 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 QC Professor of Law, University College London Barrister, Matrix Chambers Attachment cc. Representative Jerrold Nadler Representative Lamar Smith Representative Trent Franks
NOTE RESPONSE BY PROFESSOR PHILIPPE SANDS TO CLAIMS MADE BY MR DOUGLAS FEITH, 15 JULY 2008 During the course of the hearing before the Constitution, Civil Rights and Civil Liberties SubCommittee of the House Judiciary Committee on July 15th 2008 Mr Feith referred to “a quick list of what 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 eight issues. Whilst many of his claims are pedantic, none is sustainable. (1) MR FEITH’S CLAIM: “He says that the -- that this memo from Mr. Haynes was commonly silent 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 multiple techniques. The words “in a carefully coordinated manner” are not taken from Mr Haynes’ memo but from a memo dated October 11th 2002 by LTC Jerald Phifer (which was attached to Mr Haynes’ memo). LTC Phifer’s words refer to the use of all the Category III techniques: “The following 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 a carefully coordinated manner to help interrogate exceptionally resistant detainees”. LTC Phifer’s words do not refer to Category I and II techniques, and in any event they were not taken up by Mr Haynes. (2) MR FEITH’S CLAIM: “Mr. Sands says that I wanted the detainees to receive no protection at all under Geneva, and that I worked to ensure that none of the detainees could rely on Geneva. On the contrary, [I] argued that Geneva applied to the conflict with the Taliban and what I said is they should not get POW status. That's very different.” REALITY: My claim is that Mr Feith failed to argue in favour of any detainees at Guantanamo having 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 Guantanamo having 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 is not apparent to me that any practical distinction was drawn between Taleban and Al Qaeda detainees at Guantanamo). Mr Feith argued expressly that such detainees were not entitled to POW status under Geneva. As far as I am aware he made no express argument either way as to the rights of Taleban detainees at Guantanamo in respect of the rules reflected in Common Article 3. He has put no evidence before the Committee to show that he argued in favour of such rights for Taleban detainees. At the hearing on July 15th 2008 Mr Feith made available a copy of a memo dated February 3, 2002 (entitled “Feith draft” and “Points for 2/4/02 NSC Meeting on Geneva Convention”). That document does not argue in favour of Common Article 3 rights for Taleban detainees. Thereafter, and until the Supreme Court decided otherwise, no detainees at Guantanamo (whether Taleban or Al Qaeda) received any rights under Common Article 3 of Geneva (or any equivalent tights under customary or other conventional rules of international law). (3) MR FEITH’S CLAIM: “I don't recall any part of the U.S. government making the argument that our conflict with al Qaeda was governed by the Geneva Conventions.” REALITY: Mr Feith’s recollection is flawed. Other lawyers in the Administration (as well as uniformed military lawyers) supported the view that Al Qaeda detainees could and should have
rights under Geneva. For example, as noted at page 34 of Torture Team, on February 2nd 2002 Mr William H Taft IV, The Legal Adviser at the Department of State, wrote a memo to the White House Counsel concerning the application of Geneva to the conflict in Afghanistan. He wrote: “The President should know that a decision that the Conventions do apply is consistent with the plain language of the Conventions and the unvaried practice of the United States its forces into conflict over fifty years. [….] From a policy standpoint, a decision that the Conventions apply provides the best legal basis for treating the al Qaeda and Taliban detainees in the 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 Taft’s approach had been followed, Mohammed Al Qahtani (Detainee 063) would have been entitled to rights under Geneva (as an Al Qaeda detainee apprehended in Afghanistan). (4) MR FEITH’S CLAIM: “Mr. Sands says that if detainees do not get POW or Common Article 3 protections, then, quote, ‘no one at Guantanamo was entitled to protection under any of the rules reflected 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 other matters.” REALITY: I do not make the claim asserted. POW or Common Article 3 rights are not per se or 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 rights under Geneva. Mr Feith has put forward no contemporaneous or other evidence to show that he argued for a different position. (5) MR FEITH’S CLAIM: “Mr. Sands says that I solidly resisted the idea of returning any detainees. The fact is I favored returning detainees and, in fact, wrote the policy for doing so.” REALITY: At p. 43 of Torture Team (Palgrave Macmillan) I write: “By May  Dunlavey had concluded that half the detainees had no intelligence value at all. He reported this to Rumsfeld, who told him to take his problem to Feith, who would pass them on. In Feith he met solid resistance to the idea of returning any detainees, so it was on with the interrogations, even if the usual techniques wouldn’t 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 of detainees were released later that year, as Major General Dunlavey told me, including a man who claimed to be more than 100 years old (see Torture Team, p. 50). Mr Feith has provided no evidence to indicate precisely how many detainees were released during 2002, or on what dates. (6) MR FEITH’S CLAIM: “Mr. Sands says that Secretary Rumsfeld did not reject the Category 3 interrogation 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 interrogation techniques. One such technique was approved for blanket use. As regards the other three, Mr Haynes wrote: “While all Category III techniques may be legally available, we believe that, as a matter of policy, a blanket approval of Category III techniques is not warranted at this time. Our Armed Forces are trained to a standard of interrogation that reflects tradition of restraint.” Whilst blanket approval on policy grounds was not authorized on December 2nd, 2002, the future use of these three techniques (including waterboarding) remained available for use on a case-by-case basis and was not rejected as a matter of law. (7) MR FEITH’S CLAIM: “Mr. Sands says that I hoodwinked General Myers. I spoke the General Myers yesterday and he says that we were, in fact, in agreement about Geneva, and the General authorized me to say that he believes the Sands book is wrong to say that he was hoodwinked.”
REALITY: The notion that General Myers was “hoodwinked” by Mr Feith was put to me by a senior military officer, as I describe at p. 90 of Torture Team: “As one seasoned observer of military affairs put it to me, Myers was ‘well and truly hoodwinked’ ..” I can do no more than refer the reader to the relevant pages of my book, which set out fairly and accurately the details of my interview with General Myers. I had the impression that General Myers was candid with me, although it was clear that he appeared to have misunderstood (1) what had been decided about Geneva (he told me that “we were certainly discussing both the Taliban and Al Qaeda in those days and, I thought we’d said, I’m fairly certain, we said that Taliban was different from Al Qaeda but in the end, for both groups, we would treat them as if it [Geneva] did apply”, Torture Team, 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”, Torture Team, p. 93). I would have no objection to make available to the Committee the audio and transcript of my interview with General Myers. (8) MR FEITH’S CLAIM: “Mr. Sands accuses me of circumventing Geneva. I never did that or advocated that. And with respect to Common Article 3, while I raised the question -- while it was being debated, before the president made his decision in February, 2002 -- later, when the issue came up again, my office was active in raising the question about why Common Article 3 can't be used, and if it can't be used as a matter of law, why should it not be used as a matter of policy to define humane treatment.” REALITY: The bottom line is that from February 2002 no detainees at Guantanamo had any rights under Geneva. That decision was taken on Mr Feith’s watch, and he has put no evidence before 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 office “was active” in support of Common Article 3 or any other legal rights for detainees at Guantanamo. If such evidence were to emerge I would of course take account of it.
London, 24 July 2008
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