Tuesday, 11 December 2012

How technology can help your legal practice

"This article was published in Praxis, Chronicle of the Malaysian Bar, and is reproduced herein with the kind permission of their Editor"

How technology can help your legal practice.

by Jason Kay

The landscape of legal practice has changed significantly with the introduction of new technology.  From manual typewriters to electric ones to computers, and the corresponding development of sending information by post or fax and now email, the law office of today is vastly different from that of 30 years ago when many of our current senior practitioner were just coming out of law school.  It may be virtually unrecognizable 30 years from now with the speed technology and science are progressing.

But for now, do take a few minutes from your busy day, and allow me to share with you what changes you can incorporate into your practice that may yield benefits many times over.

The essentials.

Your hand/mobile phone:  

Unless you have a legacy phone which you only use to make calls and handle SMS, yours will probably be a smartphone.  Smartphones are phones which are essentially mini-computers.  If you have this, you have a treasure in your hands.  Your smartphone can access the internet, your emails, and most allow you to do editing on the soft copy of your documents.  Researching and having access to the wealth of information all over the internet with your smartphone is no longer the stuff of science fiction - it is almost as if you have the Star Trek ship’s computer with you at all times.

When used properly (and in tandem with a good legal assistant/personal assistant/paralegal/secretary/clerk back at your office - I’ll use the word “clerk” to denote the whole group from now on), your smartphone can save you valuable time.

For example, when attending court, you do not have to bring your physical diary.  Your diary can be online, synchronized on the ‘cloud[1]’ and accessible to your clerk to monitor.  You can easily view several diaries (for example the diaries of other lawyers in your firm, or lawyers that you are working with on a particular case, if they grant you viewing access) at once to avoid scheduling conflicts. 
After court, while in the canteen or on your way back to your office or your next meeting (I assume you have a driver or take public transport), you can dictate your report letters to your clerk to prepare the draft for you.  That draft can then be emailed to you to check and sign - digitally - without you having to make the trip back to your office.  On days with back-to-back meetings and/or emergencies, this keeps you productive and this minor, but important, work which will not fall through the cracks and be delayed.

Your computer:   

In today’s practice, if you do not have a very capable clerk, you should already have more than a basic working knowledge of word processing software, usually either MSWord or OpenOffice.  Beyond the basic typing and printing, you should already know (or soon learn) how to:
  • format your document (using tabs, margin stops, and tables),
  • use mail merge (useful if you do bulk work with standard-form-type documents),
  • index your document (with foot/end-notes for a more eye-catching written submission), and
  • annotate your document (with comments when collaborating with others).  
Why should you bother learning all the above?  Well, as a lawyers, our main (if not only) asset is our ideas.  It stands to reason that we should put down our fee-generating ideas in a readable (and, if possible, stylish) manner.  MSWord/OpenOffice is a tool.  If we learn to use it well, the time and effort invested will more than pay for itself in the long run. 

Your fax machine:   

Almost all offices would have a normal fax machine.  They generally come in 3 different versions (from basic to advanced) which are: thermal paper, ink-jet/carbon paper, and powder/laser print.  What you should consider getting/adding to your office is an AIO (all-in-one) machine which combine 3 or more of the following functions: fax, print, scan, email.  With AIOs, you will be able to take advantage of the “scan” function.  This is essential in the process of digitizing your files so that you can have easy access to it wherever you are without actually having to lug the thick heavy physical files.  Just make sure you get one with a scan function that includes OCR (optical character recognition).  This will help a lot when you do your getting up on the digitized documents.

Putting it together:  Convergence and Synergy.

Convergence is a wonderful word that means "the sum is greater than the parts."  Synergy is another word describing a similar concept.  What you already have (handphone, AIO, and computer) can work wonderfully to improve your practice, and ultimately, the quality of your life.  You just need to start using them together to increase their benefit manyfold. 
How you can specifically do so is, unfortunately, beyond the ambit of this introductory article.

The iPad.

One other item that you should serious consider adding to your toolbox is the Apple iPad (or any other tablet with similar capabilities).  I have written on how the iPad can improve your practice - “Using the iPad in your legal practice”[2].

In brief, the iPad is vastly superior to your computer/laptop when getting up a matter.  Reading from it is a joy.  There is hardly a boot-up delay which allows you to almost instantly put your ideas down in writing.  You can write on it with your finger or a stylus, and if you prefer to type, it’s a simple matter of adding a wireless keyboard.

Conducting trials with the iPad is possible - I have managed to do so with an iPad and a laptop (to take down notes), and with the physical file on the table, just in case.

PDF - a special mention.  

PDF is the acronym for “portable document format”.  In plain-speak, it means what you see on the computer monitor is what you will see when you print it.  This is a powerful format which will be very necessary when you start working with your digitized files.  Working with PDFs require specialize programmes to fully harness its benefits.  For your computer, you should purchase “NitroPDF”[3] (USD119.99) and on the iPad, the app “PDF Expert”[4] (USD9.99).

Why should you digitize your files?

By digitizing your files and putting them on the cloud, they are available to you wherever you go.  This allows you to literally have all your office files, and your whole library[5], with you at all times.  You will be able to do that urgent work while on holiday (if absolutely necessary), or not.  You now have a choice, unlike in days of yore when a holiday really means being cut off.  What if an important and simple task that can greatly benefit your practice (but needs to be done immediately) comes along while you are on holiday?   Would you not be glad that you had the tools and the ability to take that few hours and get the job done?  I would.

Is this change to the landscape of legal practice good?  Absolutely.  The legal profession is a service industry.  The only difference with the other players in this industry is that we are professionals in the truest sense of the word, dealing with very complex and difficult issues and we have very high ethical standards.  At our core, we assist people in what is usually the darkest hours, or the most trying/momentous time, in their lives.  Having the tools and ability to work faster, more efficiently, and effectively is always a good thing.

The learning curve of what I have described in the foregoing is not too steep - it takes 3-8 weeks to master.  After about 2 months, you should be able to start seeing tremendous results. 

The key is to keep practicing to use the tools you already have together.  Good luck with your practice.

And this should be mentioned:  Do not play (too many) games on your handphone/iPad.  They are a waste of time.  A little bit, yes.  But not too much.  Time is precious


[1] Cloud here is used to mean the storage space for data that is stored on a server connected to the internet and accessible from various devices which have internet access.

[5] if you digitize your books, or subscribe to the online legal reports - do note that there are a wealth of free resources out there, some examples being http://www.kehakiman.gov.my, http://www.federalgazette.agc.gov.my, and statutes - just go to Google and type in this search string, (name of Act) site:agc.gov.my without the double quotation marks, and you should be able to download the pdf version of the statute as at 2006.

Friday, 2 November 2012

Thoughts on SKYFALL, the 23rd homage-filled James Bond movie, by a fan - lots of *SPOILERS* ahead

Thoughts of SKYFALL

This is something written by a fan, quite soon after watching the movie.  Just fun writing. 

02 November 2012


Watching a Bond movie is like revisiting an old friend, driving through a long-remembered road and discovering that although the clothes may be different, or the scenery has changed somewhat, it still evokes that same old feeling once the conversation starts, or the windows are let down and the country air breezes rushes through your hair. It's nostalgia and discovery.

SKYFALL, the latest chapter in the life of Bond, the 3rd in the re-booted canon, and the 23rd in the official canon, does quite well in delivering a good action adventure story, by any standard. But what stands out are the thoughtful nods given to the movies that came before it.

The obvious ones are clear enough:-
  • the Aston Martin from GOLDFINGER, with the headlight machine-guns being used, and the ejector seat button hinted at
  • the villain with the funny teeth - JAWS 
  • the reference to the exploding pen - YOU ONLY LIVE TWICE 
  • the train fight - FROM RUSSIA WITH LOVE
  • Bond dying in the opening credits - YOU ONLY LIVE TWICE
  • jumping over the Komodo dragon - jumping across crocodiles - LIVE AND LET DIE
  • blowing up MI6 - THE WORLD IS NOT ENOUGH
The less obvious ones include:-
  • the homing signal - GOLDFINGER
  • the tunnel chase reminiscent of A VIEW TO A KILL's climax
  • the Beretta-Walther reference - DR NO
  • the use of the digger so stylishly on the train in the opening credits - it reminded me of that spectacular 2 trailer truck chicken standoff in LICENCE TO KILL
  • villain has an island and there is a shooting contest between him Bond, sorta - THE MAN WITH THE GOLDEN GUN 
And this one I know it's from somewhere, but I just cannot put my finger on it - Bond and Q meeting in an art gallery looking at Turner's "The Fighting Temeraire".

Does the movie work?  Well, it is terribly beautiful - the cinematography is outstanding, and the 'feel' of it reminds us of how good CASINO ROYALE really was compared to all the other movies before it.  What was regrettable was probably the overly long ending which does not really make sense (Why must there be a fight of only the 3 of them against the baddies?  Couldn't Bond have called in for reinforcements like, you know, the army?)  But aside from that, the movie was good. 

And c'mon, wasn't there at least a tinge of genuine regret that the character of Kincade was not played by Connery, for whom it was so obviously written?  The line, "I was ready before you were born" before the final standoff cannot be lost to any Bond fan since Connery had already played Bond 5 times before 1968, the year Craig was born.  It would have been spectacular.  But alas, that was not to be. 


Addendum on 24 Feb 2013

Just noticed 2 others.

After the William Tell shooting contest involving a Macallan, Bond quips about wasting it - it harkens back to the Dom Perignon reference at the dinner with DR NO scene.

The villain has an island - echoes also of SPECTRE island in FROM RUSSIA WITH LOVE - where Grant gets a massage.

Saturday, 20 October 2012

On the saga of Alvin and Vivian - October 2012

To: The Editor, The Star

Dear Sir,

I am tickled pink that your esteemed newspaper has devoted almost daily coverage to this Alvin and Vivian saga since the story broke. 

We, as Malaysians, as Asians, can learn a lot from all of this.  For one, it would seem that morality is very subjective.  One person’s morals are another’s fodder for scoff, or indifference.  So unless there are actual physical/legal sanctions to accompany the morality code, it would seem that the maxim that will apply is, “to each his own”.

Two, there is an obvious disconnect between the young and old generation, between those who believe in individualism and those who prefer collectivism.  Of course these two concepts do not entirely overlap, but the Alvin and Vivian story is almost a perfect example of how Malaysia has changed to a more individualistic society over the last generation (say Gen-Y and after).  The Gen-Xers, and those before, don’t see, or don’t want to see, this.  But it’s happening.  We can pooh-pooh all we want, but things have changed.

The writing, or rather the “erotic blog”, is already on the wall.  One of your articles, “Young ones see no harm in erotic postings,” already shows hints of this.  The young, having grown up in the highly sexualised environment of the Hilton, Kardashian, Edison Chen and numerous other sex scandals see it as ‘no biggie’.  Their parents, of course, see it as nothing less than scandalous[True to form, Vivian’s mother gives the standard “when confronted with shame” ultimatum:  Get married or get out.].  Added to this is the almost blasé attitude of Alvin and Vivian about the whole matter - they had sex on their first meeting, photography started at the second encounter, and they don’t care what others think [Alvin’s thoughts, and Vivian’s thoughts].  This is a powerful knife into the heart of proponents, or ‘guardians’ if you like, of normal “Asian values”.  All that can be hurled back at Alvin and Vivian is, possibly, the long arm of the law, or something similar - like the MCMC (Malaysian Communications And Multimedia Commission) asking that the radio interview with the two be postponed.

Is that it? 

Is force the only way to deal with unwelcomed change?  The attitude seems to be wait-and-see.  Wait-and-see if Alvin says something wrong.  Wait-and-see the outcome of the NUS disciplinary hearing.  Wait-and-see if there is enough groundswell to fortuitously bring to bear on Alvin and Vivian the realities of life - the “I told you so” moment.

All this belies the fact that things have indeed changed.  For better or worse, I cannot say.  But Malaysia now is a bit different from before this story broke.  Cold hard truths about our young are starting to be very clear.

Can we gain anything positive from this?  Yes we can.  If we look pass the morality angle, and all the other obvious points - generational clash, individualism - we can actually see virtue in this whole saga.  One of single-mindedness in the face of guaranteed condemnation/opposition.  Has this quality not been the driving force of innovation?  The example of Steve Jobs and Apple come to mind.  Innovators, leaders, visionaries, and the like share this quality of courage against the tide, sometimes subconsciously, sometimes purposely, ignoring the obvious road-blocks in their path.  Sometimes, new vistas do open. 

The path of change is seldom smooth.  The road, less than certain.  This is the first genuine gauntlet thrown at Malaysia’s “Asian values morality”.  Before this, all the sex tape scandals were of the ‘leaked’ variety, i.e. the tape/photo was made for private consumption, and then leaked by (a) third-party(ies).

But now, we have the conundrum.  Two privileged youths, doing what is absolutely shocking (to the conservative fold), enjoying it, and not a hint of shame.  And there is no outcry from the youth of the country.  Is this a sign that Malaysia is already changing?  Does it mean our young are over-indulged pampered brats who see nothing of shaming the families from whom they came and who gave them almost everything they had?   That’s the scared, conservative, Asian-value talking. 

Or is this a sign that there is now less fear, less tip-toeing, over the hypersensitivity of certain people?  Is this a new dawn for a more robust (and hopefully stronger) Malaysia, one which has citizens who are able to stand out there and say, “Here I am, this is me.  And if you don’t like me, so what?  I am still a valid person.  I am still you.  I am still part of you.”

Thus far, this story has been presented as a morality tale.  Woe to us if we don’t see it as anything more than that.

20th October 2012

Friday, 10 August 2012

Using the iPad in your legal practice

The iPad is the single best gadget you could purchase to improve your productivity and effectiveness as a lawyer. This is from a litigation point of view. This aim of this article is to give you a summary of what can be done as well as to provide some guideposts should you take the plunge and join the digital revolution.

First question: Which iPad should I get? Get the latest one with the Retina display. Your eyes will love you for it. The price difference between it and the iPad2 is negligible.

Next, the case / cover: You should get a good case that can double as a stand. I use the Targus Versavu which allows the iPad to stand in both landscape and portrait mode. This versatility is useful. A stylus, that also contains a pen, should be added also because you’ll still need to write on hardcopy documents, and the stylus is absolutely necessary when you’re highlighting or underlining texts – this is especially true if you have large fingers.

An important consideration is whether you should get the wi-fi only version, or the one with the cellular network support. Go with the latter unless you have wi-fi everywhere you go.

Why? Because lawyers get ideas at all times and at all places. Having that light-bulb moment is only as good as the action you can take after that. Certain things require instant action to achieve the maximum effect. An important thing to note here, therefore, is that you should subscribe to a cellular plan which only throttles your speed when you hit your data quota – not one that cuts you off entirely. Ask around before committing to a plan. I cannot overemphasize how crucial this is.

Now that you have your swanky new iPad, do you jailbreak it? On this, I fall on the ‘leave it as it is’ side of the fence. You’re a lawyer, not a tech geek with too much time on your hands. So quit with the experimentation and proceed from the premise that your iPad is a tool for you to be more productive and, hopefully, richer. Not something you want to fiddle around with. Warranty will be voided if you jailbreak it. So my advice: Don’t.

At this point you should create a Google account. This will allow you access to the wealth of fantastic and free services Google offers like email, calendar, word processing, cloud-based storage, RSS reader and maps – to name but a few. I recommend Google because it’s stable and it has worked very well for me the past 7 years. Bonus: Google integrates very well with the iPad’s pre-installed apps.

Your final preliminary task will be to create an Apple ID and register your credit card so that you can buy apps from the App Store. If you don’t want to use your regular credit card, get a prepaid one and load it with RM300. That should be enough to purchase all the apps that I’ll be recommending.

Free apps that you should immediately download are:-
  • Dropbox (cloud-based storage)
  • Evernote (cloud-based note-taking)
  • Skitch (to annotate pictures)
  • Skype (audio and video conferencing)
  • AppShopper (for alerts on price reduction for apps that you might want to buy)
Free apps that you should seriously consider downloading are:-
  • Facebook (social networking)
  • Twitter (social networking – but I use it mainly to keep in touch with breaking news)
  • Flipboard (news aggregator)
  • Zite (news aggregator)
  • TED (for inspirational and informative talks)
  • TimeCapture (for time billing)
  • Wikipanion (this makes Wikipedia very readable)
  • TripAdvisor (to book hotels and to find out where to eat when you’re out of town)
  • Fit It (to reduce the resolution and size of photos taken with the iPad camera)
  • iBooks (to read e-books)
Paid apps that you should buy are:-
  • Pages (for word processing)
  • Instapaper (to read and organize articles from the web)
  • PDF Expert (to read, annotate and sign PDFs – going totally paperless is almost possible with this app)
  • CamScanner+ (to take photographs of documents and convert them to PDF)
  • ProCamera (to take photos with date and time stamps – it’s a good overall photo app)
  • Notability (to take notes if you like taking notes freehand with your finger or stylus – otherwise, get the wireless Bluetooth Apple keyboard for RM229)
  • Bento (only if you are very proficient with databases and want to ‘tinker’ – this is a powerful tool)
  • WolframAlpha (just trust me on this one)
  • Sleep Gadget (for logging your sleep)
  • Total Recall (mind mapping tool)
  • 360 (to take panorama pictures)
  • Money for iPad (to keep track of your money)
How you can use and should use the apps listed above (along with the pre-installed ones like Calendar, Notes, Reminders, Maps, Safari, Mail and YouTube) really depend on your creativity. The key is to first decide what you want to achieve, and then see if you can do it with the existing apps you have. If you cannot, or if you’re stuck, you should head over to the App Store, or do some searches on the web or the Apple forums. Chances are, someone has encountered the same problem and may have already found a solution / shortcut for you. Or maybe there’s an app that does exactly what you desire. The learning curve is not steep, but neither is it easy.

You’ll need about 3-5 weeks of constant ‘messing around’ before you see some positive results in your practice. And it helps if you do not, under any circumstances, download any games – Angry Birds deserves a special mention. Playing games on the iPad will rob you blind of what little time you have. This is the siren song. Listen to it not.

The genius of the iPad is in its design. The touch function is vastly superior to the way we’ve been interacting with computers – keyboard and mouse. This tactile element is the very reason why the iPad works so well for litigators. Our minds work both methodically and in a free-ranging manner, depending on the problem we’re trying to solve. The iPad assists us by nurturing both styles, in a way normal computers simply cannot.

Imagine waking up to a half-formed strategy for a case conceived in a dream. Do you walk to your desktop, boot it up and do your research? You might. Do you reach for your laptop, boot it up, and do your research? Probably, since there might be no walking involved. But if you have an iPad by your bed, or under the pillow, ‘might’ and ‘probably change to ‘most likely’ because there’s no boot up time, no walking, and it’s like holding a magical piece of glass. That simple research could be the key / catalyst that solves the issue for you. I’ve gotten up a case in about 1-2 hours on the iPad that I know would’ve taken me about 2-4 times longer if I had done it on my desktop or laptop. And I’ve fallen asleep while researching / drafting more times than I can remember. All this translates to more work done in small pockets of time that I ‘steal’ for myself during the day. Long bus rides are no longer for naps and listening to podcasts. They now include doing actual work.

Let me end by giving you an example of how I use the iPad on a normal day:-

During my morning shower, I usually get most of my ideas. And it’s very easy to immediately jot them in the Calendar, Reminders, Notes, Total Recall, or Evernote (sometimes after a quick search on the web with Safari or Wikipanion) app. This is after the shower, of course.

While having breakfast, or commuting, I catch up with what’s happening socially on Facebook, and read the news via Flipboard, Zite, or Twitter, or all of them.

Let’s say on this hypothetical day, I’m going to mention a case on behalf of an out-station lawyer. I’d have received all instructions via email and PDF attachments. I view these with Mail and annotate them with PDF Expert. During the mention, I can take down notes with Notability, or fire up Pages, link the keyboard, and type out the notes. These notes I can later incorporate into my report (which I have the option of exporting as a PDF to be signed with PDF Expert); and email to the instructing counsel. Any hardcopy of documents that needs to be sent can first be photographed and converted to PDF using CamScanner+. The scanned copy will take minutes to reach that out-station lawyer. The hard copy, at most, takes a day.

Getting up a case is quite simple now with most law reports available online. Safari, PDF Expert, Instapaper and Dropbox will be your best friends in no time. Drafting of pleadings and submissions is possible with Pages. But if you want more control of the layout, all your work can be exported in MSWord format for final formatting on your desktop / laptop.

Should you need to have a quick face-to-face chat, Skype (works with wi-fi and cellular connections) or FaceTime (only works with a wi-fi connection) saves your time tremendously – no commute, waiting or traffic jams. Just make sure you dress appropriately, have a decent background / backdrop, and frame yourself well.

I’ve yet to conduct a trial solely with the iPad, so I cannot comment on this. (Of course it would be folly to so do if one doesn’t also have the physical file on the bar table, or at least in the car boot, just in case.)

Replacing your physical diary with the Calendar app on the iPad is a no-brainer. Synchronization with Google Calendar is excellent, and you have 2 free iCloud calendars. Creating and rescheduling appointments are so simple and intuitive, you’ll never want to work with a desk diary again.

A note about the price of apps: Depending on the maker of the app, prices can either fluctuate greatly, slightly, or not at all. This is where AppShopper comes in. It allows you to follow certain apps that pique your interest, but not enough that you would buy it immediately at its current price. All you have to do is make a note of it, and when the price drops, AppShopper will notify you.

I’m aware that there are many other good apps that I haven’t mentioned in this article. But I can only recommend what I’ve actually used. I do not recommend willy-nilly. I have received no gratification, neither in cash or in kind, from any of the product developers / makers that I’ve recommended in this article. They’re good products – plain and simple. And, if for some strange reason you wish to thank me, please consider donating to a charity that has a good administration expense ratio – Yes, this is the whole ‘pay it forward’ thing.

If you do plan to get the iPad, I wish you much fun with your new gadget. Remember, it’s not a toy. It’s not a glorified game machine. And it’s not only a media consumption device. It’s a money-making machine that’s both sexy and magical.

Good luck with your practice, with or without the iPad.

Explore these apps by clicking on them:
1. 360
2. AppShopper
3. Bento
4. Camscanner+
5. Dropbox
6. Evernote
7. Facebook
8. Flipboard
9. Fit It
10. Google
11. iBooks
12. Instapaper
13. Money for iPad
14. Notability
15. Pages
16. PDF Expert
17. ProCamera
18. Skitch
19. Skype
20. Sleep Gadget
21. TED
22. TimeCapture
23. Total Recall
24. TripAdvisor
25. Twitter
26. Wikipanion
27. Wolfram Alpha
28. Zite
Jason Kay is a lawyer residing in Melaka.  His interests include legal aid (YBGK) (Bar Council LegalAid Centres) and war crimes (Kuala Lumpur War Crimes Tribunal).  He blogs at Open Letters, and tweets @JK_mlk

Addendum to article - 06 December 2012

Essential apps
Waze (Free GPS guide with real-time traffic statistics. Excellent)

Tweetbot (Twitter reader. It displays source articles in links embedded in tweets so much faster than the normal Twitter app.  If you tweet, or research via tweets, a lot, this app is a must-have)


MagicalPad (to create BEAUTIFUL workflow charts, mind maps and general notes - quite a steep learning curve)


Timeli (to see all your on-going projects in a timeline)

Notable apps
Pocket Wavepad HD (to record audio in various formats.  A good standby if you don't have a dedicated mp3 recorder)

Zello (walkie-talkie over IP.  Less data consumption than FaceTime/Skype, easier than typing out the chats)

File Manager Pro (Document Reader & File Browser) (if you need to email 2 or more files, not photos, from your iPad, you need this)

After iOS 6, Personal Hotspot works for me.  Pairing my laptop to the iPad gives me the almost perfect office on-the-go - have the chargers nearby, just in case.

Guide to using Evernote betterLook at the "ambassador guides".

Addendum to article - 09 March 2014

This app is excellent for scanning. Only drawback is that is has no in-app OCR.
Scanner Pro by Readdle

Note: The apps in YELLOW highlight are the ones that I still find very useful since the initial posting of this article. Special mention for PDF Expert and Waze. They are beyond excellent.

Monday, 25 June 2012

Submission of Amicus Curiae at the Kuala Lumpur War Crimes Tribunal on 10 May 2012

Case No. 2 - CTH - 2011

The Kuala Lumpur War Crimes Commission


1.       George Walker Bush
2.       Donald Henry Rumsfeld
3.       Richard Bruce Cheney
4.       Alberto R. Gonzales
5.       David Spears Addington
6.       William J. Haynes II
7.       Jay Scott Bybee
8.       John Choon Yoo

Submission of Amicus Curiae

1.          The prosecution has presented a formidable case of Torture and War Crime against the 8 accused.  I would like to place on record the humility I feel at sitting across the bar table from both prosecution counsels, Prof Nijar and Prof Boyle.  Save for a few brief moments of lapse, Prof. Nijar’s submission was thorough and devastating, and Prof Boyle was and is perhaps the most eloquent advocate I have had the honour of listening to in person.

2.          Save for a short outburst on day 2 regarding the issue of Ali Shalal and the photo, I have purposely maintained my composure and refrained from standing up and down, objecting to the slightest issue that could be objected.   I did this because I am reminded of my role as amicus curiae.  I am a friend of the Tribunal, assisting it to get to the heart of the matter, by getting a broader picture from the witnesses, and keeping the prosecution in check in its zeal to prosecute alleged torturers and war criminal.  I purposely did not act as a defence counsel whose task is to break down the witnesses, raise objection after objection and provide some excitement to the otherwise staid proceedings.  To those who think I have been too sedate, well, I am not a clown, nor am I here to badger the witnesses for you amusement.  I am here as a friend of the Tribunal. 

3.          And as friend of the Tribunal, what questions I did ask of the 3 witnesses were, to my mind, very relevant.  I admit I probably should have not pressed the point with PW3 Jameelah about whether the beatings were for hours, or minutes, because, as succinctly put by the Learned President, a beating is a beating.    I am grateful for that guidance. 

4.          It is indeed true.  Torture is torture, whether it is committed against a man or a woman, white, black, yellow, brown or any colour in between, to a Muslim, Hindu, Christian or Jew (to paraphrase Gandhi).  It does not matter who does it or to whom it is done.  Wrong is wrong. 

5.          But is it wrong in international law?  That’s the task on the prosecution’s shoulder.  They have to prove beyond a reasonable doubt that the 8 accused have indeed committed torture. 

6.          Have they proven it beyond a reasonable doubt?  Well, let’s break it down one by one.

7.          The prosecution started off its case by bringing 3 witnesses to testify under oath as to what happened to them.  All 3 witnesses gave varying accounts of being taken/abducted, brought to a facility under the command of American military and thereafter subjected to various extreme conditions that the prosecution labels as torture.   

8.          First question:  Can we believe their account of what happened to them?  The purpose of cross-examination (by defence counsel, or amicus in this case) is to elicit the hidden facts that were not apparent at first blush during the examination-in-chief by the prosecution.  What was a very straightforward story/account, under cross-examination can something reveal facets not apparent at first glance. 

9.          We all were able to hear what 3 of the 5 witnesses said in this Tribunal here.  The other 2, Ali Shalal and Rhuhel, we were not able to hear the words from their own mouth.  Was Rhuhel, the boy who went to Afghanistan to smoke ganja/marijuana with friends, telling the truth, the whole truth and nothing but the truth in his statutory declaration which is already now before the Tribunal?  We won’t really know for sure.  But more importantly, we won’t get a chance to know for sure.  Why, because we didn’t get to see how he reacts answering questions, we didn’t get to listen to the words from his mouth with all the nuances that can give us the cue as to whether he was a witness of true or something else; and we didn’t get to ask him the tough questions that may expand his story to give a whole different tenor to his testimony.  That is the very purpose of cross-examination.  And unfortunately for Rhuhel, his testimony is in the record without going through, if you like, the testing fire of cross-examination.

10.      For example, take the first witness Abbas Abid.  He came, face all covered, and we first got to know him as Chief Engineer with a dream for a big family.  He wanted 15 children.  He only has 5.  By my count, that is big.  By his count, not big enough.  He then went on to tell us of what happened to him, first at Al Muthanna Brigade HQ, then at Al-Jadiria.  Only during cross-examination did he reveal that he was a government servant in the government of Saddam Hussein, admittedly, not the nicest fellow to have walked the earth.  Was that oversight deliberate?  I don’t know.  I do not wish to speculate.  But it does make me wonder what else was left out.  Especially in his account about the being tortured.  In examination-in-chief, he was identifying this person and that person as Americans.  When asked HOW did he actually do that, the answer eventually led to the admission under the hood that was put over his head while he was tortured, he could not identify whether the ones who tortured him were Americans or not.  He said this even during re-examination by the prosecution.  So that is that for PW1.

11.      For completeness sake, it is regrettable that the prosecution has not provided the Court with any documentation linking with the Al Muthanna Brigade HQ, nor the Al-Jadiria facility as being American controlled.  I am minded that judicial notice can be taken, but the above 2 facilities are not as famous as Guantanamo which was clearly American.  So from where I stand, there is not a shred of evidence that links either Al Muthanna Brigade HQ, nor the Al-Jadiria with the Americans and the testimony of Abbas does not identify Americans as being the perpetrators[1].  In addition, there is also no medical report tendered to confirm the injuries of Abbas. 

12.      I humbly submit that this Tribunal find that for the torture of Abbas, sad as it may be, has not in any way been proven to be linked to the Americans in any way by the prosecution.

13.      With Jameelah, PW3, we have a strong woman, a respected woman in the community, a widow who raised 3 children after the death of her husband in 1999.  She is a proud Baath party member, and would have provided money to the resistance if she had extra.  Why was this not in her statement?  She was very vocal, passionate and overflowing (even to the extent of volunteering information after re-examination) in her testimony, always hinting that what she said was merely the tip of the iceberg, but never saying more. 

14.      Even the rapes alleged in the last paragraph of her Statutory Declaration were made very generally as “Women have suffered tremendously and many have been raped.”  Upon further questioning, she admitted that that is hearsay evidence and she did not in fact witness said rapes.  So, was she tortured by the Americans?  There are 2 exhibits to her Statutory Declaration.  The first is an extremely faint document titled “Release form for detained civilians” with the handwritten portions visible but not much else of the printed portion is readable.  The second is an ICRC certification that she was detained from 13/1/2004 to 22/6/2004.  No mentioned is made of where she was detained.  Other than her say so, we have no proof that she was detained at an American facility.  Her identification of her torturers as Americans is also based on conjecture from the assumption that since she was in the American part of Iraq, she was therefore assaulted by American nationals.  This remains merely an assumption.  There is no actual identification. 

15.      And speaking of identification, we have the other non-attending witness, Ali Shalal.  If his testimony in the statutory declaration had been tendered as was done with Rhuhel’s one, that would have been quite uneventful. But the prosecution did one up and linked it to the photo of the hooded man standing on a box.  Now that’s a problem. 

16.      The TRUTH is what fallible human courts are supposed to arrive at by the whole trial process.  One side puts up a story, it is tested by various means and according to generally accepted rules that are called procedure.  They differ from one place to the next, but the binding thread in all of them is that they are designed to try their best to ‘get to the truth’ in the best possible manner.  Witnesses are humans.  And they are subject to the same human weaknesses as all of us.  Exaggeration is one of them.  We have seen quite a few instances in this trial and the last one. 

17.      By linking, however subtly, the statutory declaration of Ali Shalal to the newspaper cutting, by waving it in the air, the prosecution makes that link.  Now, there is a problem with such a link.  The problem is this:  We cannot be too sure whether Ali Shalal is indeed the man in the photo.  Ali Shalal himself cannot be certain he is the man in the photo. 

18.      So what?  Does it matter?  The prosecution went, very logically to say, and I paraphrase here, “If it was not him, better, it means that this was done to at least 2 persons” implying if more than 1 person were to have been treated in this fashion, it bolsters the prosecution’s case.  That is true. 

19.      But consider this.  The possibility of Ali Shalal NOT being the man in the picture raises a question mark over his testimony, which unfortunately is only in the form of a statutory declaration before this Tribunal.  Is his testimony the truth, the whole truth and nothing but the truth?  We cannot ask him.  Does it matter that his testimony be as closest to the truth?  Yes.  Yes it does.  Especially on issues like torture. 

20.      It is reported, yes in the New York Times, that he has identified with that picture, saying that it is him.  He even puts that picture on his business cards.  But one has to ask:  If he was in the hood, how would he know for sure if that picture was in fact of him?  But more importantly, if there is a chance it wasn’t him, is there any benefit he claims that he is the man in that picture?  Is there any benefit if he exaggerates a little and say that person is he? 

21.      Why, of course there is a benefit.  There is a big benefit.  That is the defining picture of Abu Ghraib.  That is the defining picture that turned the tide on the war on terror.  That picture, if it’s YOU, will open doors for you that you never knew existed.  Doors which lead to fame.  Is Ali Shalal a publicity hunter?  We may never know.  Is Ali Shalal telling the truth?  We never got to ask him.

22.      The New York Times series of articles report that:

Ali Shalal Qaissi, soon emerged as their chief representative, appearing in publications and on television in several countries to detail his suffering. His prominence made sense, because he claimed to be the man in the photograph that had become the international icon of the Abu Ghraib scandal: standing on a cardboard box, hooded, with wires attached to his outstretched arms. He had even emblazoned the silhouette of that image on business cards.
The trouble was, the man in the photograph was not Mr. Qaissi. [Editors' Note]
Military investigators had identified the man on the box as a different detainee who had described the episode in a sworn statement immediately after the photographs were discovered in January 2004, but then the man seemed to go silent.
Mr. Qaissi had energetically filled the void, traveling abroad with slide shows to argue that abuse in Iraq continued, as head of a group he called the Association of Victims of American Occupation Prisons. ... This week, after the online magazine Salon raised questions about the identity of the man in the photograph, Mr. Qaissi and his lawyers insisted he was telling the truth.  Certainly, he was at Abu Ghraib, and appears with a hood over his head in some photographs that Army investigators seized from
the computer belonging to Specialist Charles Graner, the soldier later convicted of being the ringleader of the abuse.
However, he now acknowledges he is not the man in the specific photograph he printed and held up in a portrait that accompanied the Times article. But he and his lawyers maintain that he was photographed in a similar position and shocked with wires and that he is the one on his business card. The Army says it believes only one prisoner was treated in that way. "I know one thing," Mr. Qaissi said yesterday, breaking down in tears when reached by telephone. "I wore that blanket, I stood on that box, and I was wired up and electrocuted."
In the spring of 2004, Mr. Qaissi approached Muhammad Hamid al-Moussawi, the deputy director of the Human Rights Organization of Iraq, and proposed that the men set up a group for prisoners of the occupation, Mr. Moussawi said this week. Yet Mr. Qaissi never claimed at the time that he had been the man in the photograph, Mr. Moussawi recalled.
A journalist who interviewed Mr. Qaissi three times that May and June about what happened at Abu Ghraib similarly said he never mentioned the pose or the photograph. The journalist, Gert Van Langendonck, said Mr. Qaissi mentioned the other cruelties he described in the Times profile.
A lawsuit Mr. Qaissi joined, filed on July 27, 2004, also made no allegation that he was shocked with wires or forced to stand on a box.
... Mr. Qaissi seems to have first begun identifying himself as the hooded man in the fall of 2004,  

Soon, Mr. Qaissi was featured in numerous profiles, including in Der Spiegel, reprinted by Salon, as well as on the PBS current affairs program "Now," where he described being shocked: "It felt like my eyeballs were coming out of my sockets." With his soft voice and occasionally self-deprecating humor, he has impressed interviewers as affable and credible. He told his story with a level of detail that separated it from that of many others.  And on this, please see See Prosecution Bundle 3B, page 1188, para 32, line 3:- "As the electric current entered my whole body, I felt as if my eyes were being forced out and sparks flying out."

23.      This all raises the question again:  So what?  So what if it was not Ali Shalal in the photo.  The photo exists.  Ah, but that is layman talk.  This is Tribunal of law.  We talk law here also.  And law is about facts, first and foremost.  “It is easy to confuse photographs with reality. To many of us, photographs are reality.”  This also links later with my point on the movie that was shown, “Taxi To The Dark Side”. 

“We see the picture of the Hooded Man. We imagine the abuse. Quotes from Clawman in the accompanying text confirms our worst suspicions about what happened at Abu Ghraib. Our beliefs about the picture are confirmed – except that we know nothing more than when we started. We have learned nothing. ... One human rights worker suggested that it made no difference whether Clawman was really the Hooded Man – that his testimony was no less valid. I do not agree. Now we are talking about reality – not about photographs. Clawman was a prisoner at Abu Ghraib. He was most likely subjected to abuse, but whatever his account might be, it’s not the account of the man in the picture. That man is Gilligan – not Clawman.”

24.      We saw the movie “Taxi to the dark side”.  We imagined reality as that.  But it’s not.  That was a highly produced, carefully edited movie to present a view which may not be the view that is near the truth.  It may even be a skewed view.  If it were unedited video, it would be better.  Of course, we would all be sleeping, but for the purposes of video evidence in a court/tribunal of law, unedited is better than edited.  If maker can come and give evidence about the video or photograph, that’s even better.  Because that would better help us get to the truth.  And that is precisely why I made it a point to raise the doubt that there is a possibility that Ali Shalal may not have been the man in the photo – but only after the prosecution made that link.  Without that waving of the newspaper cutting, it would have been a very uneventful tendering of a previous statutory declaration by a witness who cannot attend, I would just stand up for a short point on the inherent dangers of hearsay evidence and that would be it.

25.      I move on now to Moazzam Begg, PW2.  He exudes the confidence and serenity that belie the treatment he had been through.  Was he detained by the Americans?  Of course he was.  He was at Guantanamo and Bagram for goodness sake.  As with Abbas, it is most unfortunate that his testimony during Examination-in-chief focused on his life starting at the point he was captured and incarcerated.  That gives such a myopic view of a life.  Moazzam is more than his sufferings.  During cross examination we found out owned a bookstore, and had spent a few day at a training camp in Afghanistan.  Why had these facts not been disclosed in his earlier statutory declaration made in 2009?  They were already common knowledge by then, having appeared in newspapers.  We also learnt that at Guantanamo there are books, and while he did not get to read current affairs, he was able to read Dickens and the first 5 Harry Potter books. 

26.      I believe this is an opportune moment to view a video, if there is no objections as to the type of medical care that is available at Guantanamo.  I wish to air a short clip, not more than 15 minutes from the movie SICKO by Michael Moore which came out in 2007.  The story concerns the American health care system, and the movie is basically a scathing summary of what is wrong with it.  To make a point, Michael Moore got 3 rescue workers from the 9/11 incident and attempted to bring them to Guantanamo Bay to try to get the healthcare they did not get back Stateside.  He begins with the question:  They say that you can judge a society by how it treats those who are the worst off.  But is the opposite true?  That you can judge a society by how it treats its best?  part 10[2] (start at time stamp 2:18) ... continue with part 11[3] (stop at time stamp 4:40)

27.      Yes, Amicus is submitting that Guantanamo is not all that bad.  Based on that video.  But then, how can we know the full story from a mere 15-minute clip.  How indeed. 

28.      In fact, can we really get the story from a 1 hour plus movie like “Taxi To The Dark Side”?  It is a good movie, alright, documentary.  But it has a narrative, and that narrative has a purpose:  To make us see the Dilawar story.  Is that the only story to be told from Guantanamo?  Of course not.  Does it prejudice the 8 accused?  Yes.  Of course it does.  It makes it look like all 8 of them are some horrible people.  Does it tell the story of “WHY”?  No it does not.  Did I object to it being shown even when I only had about an hour or so notice that the prosecution intended it to be shown?  Of course not.  Because I am here to assist the Court, not attack the prosecution’s case.  I am here to point out where the prosecution may be overstating something, or understating, or not stating, or accidentally misstating it.  So I do not object to it.  I do not object to the fact that it shows contrite, or seemingly contrite low-level soldiers blaming the situation, blaming not being trained well enough before having to do interrogation, and basically blaming the higher-ups for their, the soldier’s, own acts of harming the prisoners under their care. 

29.      Anyone doing criminal law will know how accomplices will usually turn on one another upon being caught, saying that the other one was the mastermind, and that he was the innocent, unwitting, naive or stupid person who tagged along for the ride and got entangled in the mess.  Of course we’ve heard of this.  Of course the low level people will point up and say, “Command Responsibility”.  And people want to believe that those in command are omnipresent and omniscience.  That’s really what command responsibility is all about.  The rogue soldier, the rogue underling saying, “boo-hoo.  Poor me.  I am the victim for doing all these bad naughty things to those people.  It’s my boss’ fault”.  Haven’t we heard that one before?  Of course we want to ‘get’ the boss.  That’s the marquee name.  That’s the big fish.  And so we close our eyes to the fact that maybe, just maybe, the low-level soldier indeed was rogue, or nuts, or a sadist, or whatever.  Forget about him, or her.  Get the big fish. 

30.      So how does international law ‘get’ the big fish?  By saying ‘command responsibility’.  That’s the simple way out.  That’s the magic phrase.  From a standard of “what the superior actually knew” at Nuremberg, it became “constructive knowledge” and “negligent disregard” at Tokyo Tribunals, and Geneva Protocol I added “knowledge the superior should have had” and “standards of negligence for not knowing.”[4]   

31.      That’s a little like cheating: moving the goalpost.  And this totally disregards that fact that America did not ratify Geneva Protocol 1[5]

32.      Now why would I even bother talking about the United States of America not ratifying Protocol I.  Surely that doesn’t matter right?  Surely we can catch it all under the big umbrella that is “customary international law”.  Ah, that’s the other magic phrase.  Just say it, and everything will be ok.  But is that really the case?

33.      Customary international law and jus cogens are like the snake-oil of international law.  It can cure everything.  Sprinkle a little, and any situation can be covered.  Really?  Does every country agree on the definition of torture?  For example the definition in Article 1 of the 1984 CAT?  Malaysia doesn’t.  I wonder why?  But no matter, it’s customary international law.  That should fix everything. 

34.      Does it really?  No.  No it does not.  When you think about it, international law really boils down to TREATIES.  What countries, in their sovereign state decide to do when they are relating to other countries.

35.      International law is basically what treaties say they are – forget about jus cogens, forget about customary international law.  It is treaties, i.e. what countries/States want to be bound by, in their absolute discretion – and what more, it is only treaties that parties sign, ratify, and don’t put reservations to that are binding.  Each individual State is a sovereign nation.  If it wishes to join the fold and become part of the community of nations, logically, it has to make agreements, sign treaties, with other nations, or join the normal general treaties that most nations subscribe to, it’s like joining a club.  You don’t have to.  But if you do, you agree to be bound by and adhere to the standards and norms of that club.  And by extending the club analogy, there are various forms of memberships for nations, just as there are different classes of nations at the United Nations.  Some have veto.  Others don’t.  Is it fair.  Of course not.  But without that veto, they wouldn’t join.  Why?  Because they had the big guns, called nuclear weapons, and if you don’t give them the nice big chair and that loud megaphone, they won’t come to your party and play nicely.

36.      The very fact that any nation can choose to sign or not sign, and then either ratify or not ratify, and lastly put in a reservation or accept the treaty wholeheartedly is a clear indication, nay, it is proof positive that in the realm of international relations, one thing is absolutely certain:  All States come to the table as a sovereign nation.  They owe no other nation anything when it comes to deciding in what manner and how exactly they will join the community of nations. 

37.      Conscience guided by law and justice cannot turn a blind eye to the fact that international law exists because each and every country in the world at one point decided that, “yes, I do not want to be an island.  I need to be part of the community of nations, I will therefore fall in line and be part of it by accepting and performing the obligations under it”.  Treaties are contracts.  And they are written down.  What is not written down is not agreed to.  There are, of course, oral treaties , which are envisaged by Vienna Convention Article 2(1)(a).  This is basic contract law.  This is basic treaty law. 

38.      Do permit me to quote from the Quran on this, from Surah Al-Maedah, verse 1 (translation by Yusuf Ali)[6]:

O ye who believe! fulfil (all) obligations. Lawful unto you (for food) are all four-footed animals, with the exceptions named: But animals of the chase are forbidden while ye are in the sacred precincts or in pilgrim garb: for Allah doth command according to His will and plan.”

39.         5:1 – fulfil obligations

40.      Ah, but the wet-behind-the-ears international law student will ask:  What about customary international law?  What about jus cogens?  Here’s the painful answer:  It does not mean a thing.  Not for international law that relates to war, at least.  For international contracts and stuff involving money, yeah, people will play by the general rules generally laid down.  But ALL IS FAIR IN LOVE AND WAR.  Especially war. 

41.      War is like a black hole.  The general theory of relativity posits that there are black holes, and in the centre of black holes there is the singularity where the laws of physics cease to exist[7].

42.      War does that to laws.  To international laws even.  From the 19th century until World War I, States had sovereign rights to go to war for good reason, bad reason or no reason.  After World War I, under the Covenant of the League of Nations, States were prohibited from going to war in certain circumstances but allowed to go to war in other circumstances[8].  After World War II, under the UN Charter, States are prohibited from unilateral threat or use of force except in self-defence.

43.      Our submission?   After 9/11, after the war on terror, the law now, the international law now is: “torture is ok”. 

44.      Video sequence from “24” - Is 24_s Jack Bauer Teaching Torture to U.S. Soldiers_[9]

45.      We all want to say torture is bad.  But given the right circumstances, most of us, if not all of us would say, yeah, “Waterboard him.  Beat the crap out of him.”  I couldn’t ask Jameelah that question on Tuesday.  So I say it now, from the Bar.  Given the right circumstances, I’d probably say ok to torture too.  I’d probably torture too.  I am human.  And for those of us who have searched our souls and are honest in this room, I think you’ll say the same too.

46.      But let’s get back to the assertion we made:  Torture is now ok after 9/11, after the war on terror.  The world has changed.  International law has changed.  For the better or for the worst it doesn’t matter.  The legal point is:  it has changed. 

47.      The prosecution’s view of war is wonderful actually.  You go to war, but you have all these rules.  Rules that all parties agree to.  Rules that all parties will obey.  Very idealistic.  Very naive. 

48.      Wars used to only be fought by uniformed armies on a fixed battlefield – sometimes called a war theatre.  There was place where you fought.   That’s where we get the words like Marathon and Waterloo, and we remember places like Gettysburg and Dunkirk.  There was a fixed place with a fixed uniformed army. 

49.      The laws of war that the prosecution has so thoroughly explained to us yesterday works.  Yes.  For those wars.  For those situations. 

50.      Today, wars are being fought in realms.  Iran, just last month was a victim of a cyber attack[10]. It had to disconnect several of its main Persian Gulf oil terminals from the Internet.  Yes, it’s a New York Times reference again.  When you have an army which declares itself to be an army who is against you, it makes sense to have rules of war.  It makes sense to afford the other side the ‘courtesy’ and respect given to warriors.  The code of Bushido for the samurai comes to mind. 

51.      That was a different age.  As an aside, computer hacking used to be the realm of actual geeks who were smart people who put in the hours to learn the ins-and-out of computers.  They knew that the knowledge and skill came at a price.  And there was a sense of a code for them.  Nowadays, any fool who can get his hands on a scripting tool can pretend to be a hacker.  In the same way, to be a warrior in days of yore, you had to have skills.  You had to have undergone rigorous training which would have, in some ways instilled in you a sense of honour.  And having a code of conduct for war, the ‘laws of war’ if you like, made sense.  All the rules of conduct of war was for a different time. 

52.      But when you start having civilian aeroplanes being used as weapons, when you start having bombs in shoes, when you start bombing Hawaii on a Sunday morning, when you start putting people in gas chambers by the millions, all bets are off.  That’s when the laws of war change.  That’s when you start becoming, “the destroyer of worlds” as Oppenheimer sadly wrote.  That’s when you create something like Nuremberg which was, let’s not deny it, victor’s justice.  And in the words of a former panel member of this Tribunal,

In full view of international opinion at Nuremberg, the Allied powers, in an agreement drafted decided to try the leaders, including political and military, of the Axis powers.  There were prosecutors in full military dress of the Allied powers addressing members of the Tribunal.  And no issue of bias was raised.  Judges were all from the Allied countries.  And not a single issue raised of affection or bias, even doubt.”

53.      International law changes after wars.  That’s our point.  And after the war on terror, after 9/11, torture is ok.

54.      For the small point about whether there was breach of United States municipal law – John Yoo and the documents I have quoted in Defence Document Volume 3 have answered that.  Let me just give the highlights:

a.   The conclusion reached by Michael Stokes Paulsen in his Yale Law Journal article, at page 81 at Volume 3 is,

“what is the force of international law, for the United States, and who determines that force and interprets and applies international law for the United States? For all the complexities and intricacies of the details, the summary answer is remarkably straightforward: under the U.S. Constitution, international law is only “law” for the United States when the U.S. Constitution makes it so or empowers U.S. constitutional officials to invoke it in support of their powers. Wherever the Constitution does make it so, such law is always controlled by the (sometimes conflicting) interpretations of the law by U.S. actors and never by the interpretations of international or foreign tribunals. And such international-law-as-U.S.-law is always subordinate to the superior constitutional powers of U.S. constitutional actors; it may be superseded, as a matter of U.S. law, almost at will. 

The force of international law, as a body of law, upon the United States is thus largely an illusion. On matters of war, peace, human rights, and torturesome of the most valued matters on which international law speaks—its voice may be silenced by contrary U.S. law or shouted down by the exercise of U.S. constitutional powers that international law has no binding domestic-law power to constrain. International law, for the United States, is international policy and politics.

b.  The testimony of the same person before the Subcommittee on Administrative Oversight and the Court of the US Senate Committee on the Judiciary on May 13, 1999 which can be found at page 372 of Amicus Bundle Volume 3.  In brief, he says,
                                        i.    at page 374, last paragraph, 3rd line “There exists a basis ... certainly defensible”
                                      ii.    at page 376, 2nd paragraph from the bottom, at point 2, “Second, even if one disagreed with the statutory ... constitutional issues”
                                    iii.    page 377, 3rd and 4th paragraph: “To be sure ...
                                     iv.    page 378, point 3.  Third ... ’ – whole paragraph.

55.      Let’s not belabour the point.  We are not happy with torture being used.  Full stop.  In this room, I can say that.  Everyone can say that.  But there is a world outside this room.  And outside this room,

a.   You don’t catch a suspected murderer or rapist or robber or terrorist and give him tea and fruit.  You give him Harry Potter, but not tea and fruit.  You get information that you need from him so that this world in this room can continue.  Yes, the needs of the many outweigh the rights of the few.  Sad to say, but that’s true. 

b.  Torture is being used, has been used, has always been used.  Even in times of peace.  Anne Boleyn lost her head history say due to a confession extracted through torture.  One might even say Christianity started with the torture of one guy on the cross.  And let’s not talk about what people all over the world have alleged their police forces have done while “investigating crimes”. 

c.   The prosecution has alleged that detention without trial is torture.  It has been said of Guantanamo[11],

“Previously, they [referring to the USA and Britain] criticised Malaysia for purportedly being cruel by detaining people without trial. But they are the ones doing it now.  They have probably just realised that in certain situations, Malaysia had to detain people without trial. But what they are doing in Guantanamo Bay is even more cruel by passing laws allowing the torture of detainees,”

56.      We live in the real world.  Not ONLY in this very nice room only where there’s plenty of food, gratis, downstairs. 

57.      I apologise if what I have said have hurt ... someone.  Anyone.  I have tried to be a good friend to the Tribunal. 

58.      And as a final note, I wish to say I am heartened that all 3 witnesses who came here have found the courage and strength to move on, to be of good cheer, and that was evident during their time testifying, as you may have all seen. 

Dated this 10 May 2012

Jason Kay
Amicus Curiae

Amici Curia team:
Dr. Mohd Hisham bin Mohd Kamal
Dr. Abbas Hardani
Galoh Nursafinas Samsudin (Ms)
Soo Kok Weng

[1] Short v Iran, as referenced at pages 224-225, Public International Law, A Practical Approach (3rd edition)
[2] http://www.youtube.com/watch?v=SpSgDeCYdfY&feature=relmfu
[3] http://www.youtube.com/watch?v=nxV1xbQtsQQ&feature=relmfu
[4][4][4] Point 283-285, page 65, Defence Document, Volume 1A
[5] See pages 111 and 115 Defence Document, Volume 2
[6] http://www.quranonline.net/html/trans/options/yali/5.html
[7] At the center of a black hole lies the singularity, where matter is crushed to infinite density, the pull of gravity is infinitely strong, and spacetime has infinite curvature. Here it's no longer meaningful to speak of space and time, much less spacetime. Jumbled up at the singularity, space and time cease to exist as we know them. - http://archive.ncsa.illinois.edu/Cyberia/NumRel/BlackHoleAnat.html
[8] Article 12(1) of the Covenant of the League
[9] http://www.youtube.com/watch?v=LdxV6G19R8o - Uploaded by HRFNYC on Mar 8, 2007
[10] http://www.nytimes.com/2012/04/24/world/middleeast/iranian-oil-sites-go-offline-amid-cyberattack.html?_r=1
[11] http://thestar.com.my/news/story.asp?file=/2011/9/20/nation/9534281&sec=nation