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)
[4][4][4] Point 283-285, page 65, Defence Document, Volume 1A
[5] See pages 111 and 115 Defence Document, Volume 2
[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. -
[8] Article 12(1) of the Covenant of the League
[9] - Uploaded by HRFNYC on Mar 8, 2007

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