AMY GOODMAN: We are joined now in London by Philippe Sands, the author of Lawless World. He is a professor of international law at University College London. We welcome you to Democracy Now!

PHILIPPE SANDS: Good morning. Very nice to be with you.

AMY GOODMAN: It’s good to have you with us. Well, why don’t you talk about this, what you call the White House memo?

PHILIPPE SANDS: The White House memo was a document that I’ve added into the latest edition in the U.K., and it describes a meeting well known to have been held between President Bush and Prime Minister Tony Blair on the 31st of January, 2003, just five days before Colin Powell gave his famous presentation to the Security Council. What’s so striking about the material, which has not been challenged as not being authentic, is that it confirms the absence of evidence of weapons of mass destruction in Iraq. Why would the British prime minister and the American president be talking about the possibility of provoking a material breach if they had clear and compelling evidence? But more importantly, it also confirms, as some have thought and some have said, that the road to a second resolution was a sham. The decision had already been taken that already, by the end of January, a start date for the war was penciled in and the decision was set in stone and that both Bush and Blair had agreed.

AMY GOODMAN: Now, Philippe Sands, I want you to say again what this plan was. What was it that President Bush proposed?

PHILIPPE SANDS: Well, according to the minutes of the meeting, which is prepared by one of the participants, at one point President Bush tells the British prime minister that he has other things in mind, and what he suggests is the possibility that the United States would take some of its own spy planes, paint them in United Nations colors, put them in the air above Iraq, provoke Saddam to attack them, and when Saddam did attack them, he would then be in material breach, and that would justify the use of force for violating earlier Security Council resolutions. The simple point is: Why do you do that if you have hard evidence of weapons of mass destruction?

AMY GOODMAN: Has the U.N. responded?

PHILIPPE SANDS: The U.N. hasn’t responded to any of it. The White House responded, and Downing Street have responded. Downing Street has said they don’t do book reviews and that they — there was no decision to start the war until the 18th of March, 2003. But there’s no inconsistency between the two. The 18th of March date in the U.K. was the date when Parliament voted for war. It’s pretty clear to me, as people have long suspected, that the British prime minister himself had long before decided to join President Bush in the road to war in Iraq.

AMY GOODMAN: You called this the White House memo. Do you want to say which participant revealed it to you?

PHILIPPE SANDS: I’m not able at this point to go beyond what is in the book. I have referred to it as the White House memo, because it refers to a meeting held in the White House, that’s not in dispute. Interestingly, President Bush, himself, in his conversations with Bob Woodward in another book, Plan of Attack, refers to the 31st of January meeting as the famous second resolution meeting. So, it’s clear that something important happened. I think that’s the moment which the American president told his British ally he was going ahead irrespective of the U.N. route.

AMY GOODMAN: Now, you also revealed the first Downing Street memo. Can you explain what that is, and for American listeners and viewers, why these are referred to as Downing Street memos?

PHILIPPE SANDS: The Downing Street memos refers to a much earlier text from July 2002, so about nine months earlier, and it refers to a meeting held by parts of the British Cabinet who were discussing the British government’s strategy for dealing with the Iraq situation. Piecing the whole thing together, what becomes very clear is this: in March and April 2002, President Bush and Prime Minister Tony Blair meet at Camp Crawford, and they agree on a strategy, which is to go the weapons of mass destruction route. That’s revealed in the Downing Street memo. They then go the U.N. Security Council route. They get a first resolution. It doesn’t authorize the use of force. They have the prove that Saddam is in materiel breach. They are unable do that, because Mr. Blix and Mr. El-Baradei don’t deliver the goods. And they are then left really flailing around, trying to find other ways to justify a use of force that was, in my view, wholly illegal.

AMY GOODMAN: We are talking to Philippe Sands. He is professor of international law at University College London and author of the book Lawless World: America in the Making and Breaking of Global Rules, From F.D.R.'s Atlantic Charter to George W. Bush's Illegal War. In the paperback edition that has just recently come out is where you reveal the White House memo about President Bush wanting to put U.N. markings on a U.S. spy plane to provoke Saddam Hussein. Let’s talk about legality of war. You are an international law professor. Are we seeing the use of international law, the discussions about the violation of it, more than we have ever seen before?

PHILIPPE SANDS: We are, and it’s a result, if one is clear about it, of a very positive effort made by the United States dating back to the 1940s. My book starts in August 1941 at a meeting between Roosevelt and Churchill off the coast of Newfoundland, when Churchill and Roosevelt agreed they were going to put in place a new world order, a world order based on rules. In the eight years that followed, they put in place together with other countries the modern system of international laws: the Universal Declaration of Human Rights, the Geneva Conventions on the Treatment of Prisoners of War, the Nuremberg Statute, the General Agreement on Tariffs and Trade, the Genocide Convention, all of the instruments that we have come to know in the modern system; the basic principle being the dignity of human individuals would be protected, the use of force would essentially be outlawed except in special circumstances, self-defense, for example. It’s a U.S. system, supported by the British, intended to promote American values, American constitutional values.

Fast forward 60 years, and the administration that now holds office sees these rules, which for several administrations were seen as promoting American opportunities, promoting American values, as imposing constraints. And what we saw after 9/11 was the decision, effectively, to cast aside the rules, to create the legal black hole at Guantanamo, to unbound the U.S. president to allow him to authorize interrogation, including the use of torture, and, of course, to prosecute a war in Iraq that did not meet the very rules the United States put in place. So that’s a fundamental challenge to the international rule.

AMY GOODMAN: I wanted to talk to you, Philippe Sands, about a case you were very involved with, and that’s the case of Augusto Pinochet, the Chilean dictator who was arrested here in England on — what was it? — October 16, 1998. Can you talk about on what grounds he was arrested, how he was held here, and how significant this is for what’s happening in the world today?

PHILIPPE SANDS: Yeah, it’s very significant for what’s happening in the world today, and I’ll explain why. Senator Pinochet was arrested on allegations of torture, disappearance of people, murder. At the end of the day, it boiled down to issues of torture. The allegation was that his government had exercised torture after he came into office on another September 11, 1973, over a period of 18 or so years. When he arrived in London in the autumn of 1998, he was slapped with an arrest warrant, alleging, amongst other things, torture. And the basis for the arrest warrant, which came, not from the United Kingdom, but from a Spanish prosecutor, was a 1984 convention prohibiting torture.

And the significance of the convention, to which the United States is a party, Chile is a party, Spain is party, the U.K. is a party, is that it prohibits torture anywhere in the world and it gives any country in the world the right to exercise jurisdiction over torture. So, if someone authorizes torture in the United States, if torture takes place in Afghanistan or in Iraq, that person in the United States is liable to the jurisdiction of any court in the world. You can see straight away the significance of that decision.

The decision goes even further, because what it says is, even if you were a head of state, you are not entitled to claim immunity from the jurisdiction. You can’t say, “Oh, well, I was a head of state at the time it happened, you can’t bring me before your courts.” Senator Pinochet ran that argument, and he lost the argument. What that means in principle, and, of course, everything turns on the facts, is that in relation to those in the United States who may have signed off on the authorization of torture, from lawyers like John Yoo right up to Secretary Rumsfeld, perhaps even up to the Vice President and perhaps even up to the President of the United States, once they are out of office, they will not be able to claim immunity if there is hard evidence of involvement in complicity in torture. That’s a very significant implication.

AMY GOODMAN: It’s interesting. Isn’t the Attorney General of the United States, Alberto Gonzales, in London now?

PHILIPPE SANDS: The Attorney General of the United States, Alberto Gonzales, has been talking this morning at the International Institute of Strategic Studies. I spoke there a week ago. I was a sort of aperitif, a warm-up act for what he had to say. Needless to say, my message was rather different from his. But it’s the same Mr. Gonzales who, of course, describes the Geneva Conventions which provide vital treatment, vital protections for prisons of war, including American prisoners of war, as quaint, as obsolete, as no longer applicable in relation to the Taliban and al-Qaeda individuals. And it’s the same Mr. Gonzales who, of course, contributed to the signing off of memoranda authorizing what in Britain is considered to be torture.

AMY GOODMAN: Now, this may sound like a stupid question, but it’s always said. Once a person leaves office, because when they are in office, they are guaranteed immunity; why are they guaranteed immunity when they’re in office?

PHILIPPE SANDS: They are guaranteed immunity whilst they’re in office essentially to allow states to continue to interact. So states have decided it would be inappropriate for a situation, in which the U.S. president could not travel to Spain, for example, with a threat of an arrest warrant being thrown on him. The logic for that disappears once the individual is out of office, because that person no longer exercises governmental functions.

AMY GOODMAN: Of course, countries could say you can’t come as head of state to our country. Didn’t they do that with Kurt Waldheim, when it was discovered his involvement in the Holocaust? Yet he was president of Austria; he wasn’t allowed into the United States.

PHILIPPE SANDS: Countries can do that. I suspect we are a long way from that in relation to either the British prime minister or the American president. And I want to make clear that all of this, of course, turns on the facts. We’re still at the situation where most of the facts are yet to emerge, but the suspicion that many of us have is that once Mr. Blair and President Bush leave office, a great deal more material is going to emerge.

AMY GOODMAN: Philippe Sands, what about the significance of, just in these last few days, Tony Blair’s wife saying — she, too, a lawyer — saying that torture is not acceptable? How significant is this?

PHILIPPE SANDS: Well, Cherie Booth, who is the British prime minister’s wife, of course, is a colleague of mine in my chambers, so I’m always very careful what I have to say about her. She’s a terrific colleague, and she’s obviously someone who is strongly committed to the protection of fundamental human rights. She gave a speech about a week ago at Chatham House, the Royal Institute for International Affairs, for a U.S. organization, actually Human Rights Watch, in which she reiterated her personal conviction that under international law there are no circumstances, none, even ticking time bomb, in which the use of torture is permitted. And that sent out a signal that I think at the upper echelons of English society, the International Prohibition on Torture is set in stone, is absolute and is a line that cannot be crossed, not only for legal reasons, for moral reasons, for political reasons, for ethical reasons.

AMY GOODMAN: Explain ticking time bomb, even in the case of ticking time bomb.

PHILIPPE SANDS: Ticking time bomb is the scenario that is put, to me, very often in relation to my own position. What if I were told that the school at which my children attended may have a bomb placed in or near it, but we don’t know precisely where? In those circumstances, if plausible evidence emerges that someone knows where the bomb is going to be, is torture not justified? And I have to say that’s the difficult question that the Israeli Supreme Court said in a landmark judgment concerning the use of torture in Israel, to its credit, ruling that torture was not justified when faced with that argument. They said let’s deal with that situation when we get there. That has not happened on any plausible situation and was the underlying rationale for the prohibition against torture, is that it doesn’t produce concrete evidence. It doesn’t produce material on which one can rely. That’s the real problem with torture material.

AMY GOODMAN: And this latest news that has just come out today, reported here from London, about the so-called extraordinary rendition flights, what others simply called kidnapping, that planes — C.I.A. planes, it has been admitted, more than a dozen landed at British military airfields, how significant is this? And how does this fit into international law?

PHILIPPE SANDS: It may or may not be significant, in this sense. Under international law, the obligation to eradicate the use of torture completely is absolute. So there are no circumstances in which torture is permissible. But the obligation goes further than that. States which know or should have known that another state is engaging in torture are under a positive obligation to inquire as to what is going on. So if the British government knew or should have known that these flights were carrying individuals or transporting individuals to places where they might be tortured, where there was a risk that they were being tortured, they have a duty to find out, to inform themselves. If they knew or should have known and did nothing about it, then arguably, depending on the facts, they could be complicit in torture and themselves internationally responsible for contributing to an international crime.

AMY GOODMAN: Do you think Bush and Blair should be arrested?

PHILIPPE SANDS: I think that that turns on the facts. Let me focus on the issue of the Iraqi war. The Iraqi war was, in my view, wholly illegal. It wasn’t justified on classical grounds of international law. Self-defense wasn’t even argued. The justification that the Security Council authorized the use of force, in my view, is not really a plausible argument. The Deputy Foreign Office Legal Advisor, Elizabeth Wilmshurst, resigned on the 18th of March, 2003. She resigned, in her resignation letter, which I describe in the book, because she could not be party to what she described as an illegal war that would amount to the crime of aggression. The crime of aggression is an international crime. And if, indeed, it was an illegal war, both the two individuals, together with the Australian prime minister and the Spanish prime minister, are at risk, if you like, of future investigation for participating in an illegal war. And, in fact, I conclude the latest edition of the book with a suggestion that once out of office, Mr. Blair will obviously want to think very carefully, having regard to the Pinochet case, as to where he may want to travel.

AMY GOODMAN: Now, Pinochet ultimately was freed here in Britain and sent back to Chile.

PHILIPPE SANDS: He was freed. He spent about 16 months locked up, actually in rather luxurious conditions, in a very large house in the south of London. But still, he was incarcerated, and his reputation obviously was deeply damaged by what happened. He was released off the back of a claim by the British, Chilean and Spanish governments that he was no longer healthy enough to face criminal prosecution and to, if you like, withstand trial in Spain. That, of course, was seven years ago now, and his health seems, and the circumstances, to be remarkably robust. But I don’t focus too much on the fact that he was sent back. The most important point about those proceedings was that they established the principle that under international law no one is above the law. However important they are, they are subject to the international rule of law, and they cannot travel freely without risk of investigation or arrest.

AMY GOODMAN: And the other point that have you’ve made in your book, Lawless World, about the manipulation of what the — well, what’s equivalent to the Attorney General in the United States here in this country, the recommendation he gave to the Prime Minister Blair.

PHILIPPE SANDS: Well, unlike the United States, where the issue of international law frankly was a non-issue and most people didn’t care about it — you may have covered it, but most American media channels were simply not interested — in Britain it became and still is a very live, powerful issue. And the British prime minister made clear that he would not proceed to the use of force against Iraq unless he was satisfied that it was consistent with international law. Now, we now know, and the book revealed the whole story of the circumstances in which the British Attorney General, Mr. Gonzales’s equivalent, a man called Lord Goldsmith, first gave secret legal advice, which was, shall we say, equivocal about the arguments by the U.S. for the use of force, just ten days before force was used. He then changed his mind in circumstances that have never been fully explained, but which given rise to the suggestion that he was leaned on politically to change his mind. And that has continued to be a live political issue in the United Kingdom. An analogy has been drawn between, on the one hand, as you say, the manipulation of the evidence of intelligence of weapons of mass destruction, and on the other hand, the legal arguments that have been made to justify the use of force. The upshot of all of this is that we have sort of lost faith in government. When they tell us that they have certain facts, a lot of people are skeptical now, and that’s unfortunate.

AMY GOODMAN: Philippe Sands, I want to thank you very much for being with us today, and I want to conclude by just reading the first paragraph of a piece in the Guardian newspaper, which says, “When, at last, the definitive history of the war against Iraq comes to be written, some readers may be surprised to learn that it was a lawyer who most dented the Prime Minister’s credibility. The Today program may have scored a few glancing blows, and Labour back-benchers in the anti-war movement may have landed the odd punch. But it was Philippe Sands, professor of international law at University College London, who stuck the knife into the heart of Tony Blair’s claims for the legality of the war in his book, Lawless World.” I want to thank you very much for being with us.

PHILIPPE SANDS: Thank you very much.