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It Was Top Down, StupidThe Bush administration's "bad apples" theory goes sour.

By Phillipe SandsPosted Wednesday, June 18, 2008, at 1:19 PM ET

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Last month, a subcommittee of the House judiciary committee was the first to move, on the initiative of Chairman John Conyers, as it began to investigate the development of the torture program. I came over to testify, detailing ways in which the U.S. experience mirrored that of Britain, which had briefly authorized similar techniques against the IRA in the early 1970s. The five techniques, as they came to be known, were soon abandoned, but not before great damage was done. They are widely believed to have contributed to an extension of that conflict, and they have never been picked up again. Across the political spectrum in Britain, there is a shared belief that such techniques were and are wrong and can never be justified, that coercive interrogation, aggression, and torture must never be institutionalized, because once that door has been opened, it is difficult to close.

The one issue Congress must now confront is why those at the top of the Pentagon—and in particular the head of policy, Doug Feith, who testifies Wednesday before the House judiciary committee—never seem to have turned their minds to the consequences of abandoning Geneva. Having first decided to circumvent the international constraints on aggressive interrogation, they seem never to have asked themselves the predicate questions: Would these new techniques produce reliable information? Would they undermine the "war on terror" by alienating allies? Would they be used as a recruiting tool? Feith was directly involved in these decisions, from the abandonment of Geneva to the adoption of aggressive interrogation techniques. You'd never know that from his recent book, in which he airbrushes himself out of a story he dares not tell.

Next Thursday David Addington is due to testify before the House judiciary committee, after having been served with a subpoena. Whether he actually turns up is another matter. If he does, he will be alongside John Yoo, the former Department of Justice lawyer from whose fertile mind sprung the legal theories that allow the president to torture with impunity.

That should be a most fascinating hearing, as it will allow an airing on the key issue: the relationship between the infamous torture memo signed on Aug. 1, 2002, by Jay Bybee of DoJ, and Haynes' memo to Rumsfeld, recommending a slate of new interrogation techniques that were plainly inconsistent with Geneva. Haynes has always given the impression, in public at least, that he relied on the legal advice of a relatively junior lawyer down at Guantanamo. On Tuesday, he reiterated that argument to the point of incredulity. Haynes has never publicly acknowledged the fact that he relied on the torture memo or knew of its existence or contents when he wrote his own memo. Yesterday, again, he just couldn't remember. The reason for his reticence is not difficult to find: Acknowledging any connection between his actions and the DoJ torture memos destroys the administration's claim that decision-making was bottom up, not top down.

There is little point in wasting time in the House or the Senate on arcane debate on the merits and demerits of various legal theories. The Supreme Court has ruled that Common Article 3 applied at Guantanamo. With this, all doubt evaporates as to the commission of war crimes at that place. What needs thorough investigation now is how it all began: who did what and when, and how precisely the pressures from the top came to be imposed, whether directly (through visits to Guanatanamo and the transmission of Rumsfeld's informal, short memos known as "snowflakes") or indirectly (through the use of the Defense Intelligence Agency, whose role has never properly been explained). In this way a proper reckoning can take place, so that those who are truly responsible can be identified.

Tuesday's hearing leaves me doubtful as to whether Congress can ever really get to the heart of a matter that did not start on the ground, as the administration argues. Others agree. Earlier this month, 56 members of Congress wrote to the attorney general to request the appointment of a special counsel to investigate these issues, to examine whether the administration "systematically implemented, from the top down, detainee interrogation policies that constitute torture or otherwise violate the law." If Congress can't sort this out, that call will become impossible to resist.

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Philippe Sands QC is professor of law at University College London and a barrister at Matrix Chambers. His new book is Torture Team: the Rumsfeld Memo and the Betrayal of American Values.

Photograph of William Haynes II by Chip Somodevilla/Getty Images.

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