NB: THIS TRANSCRIPT WAS TYPED FROM A TRANSCRIPTION UNIT RECORDING AND NOT COPIED FROM AN ORIGINAL SCRIPT: BECAUSE OF THE POSSIBILITY OF MIS- HEARING AND THE DIFFICULTY, IN SOME CASES, OF IDENTIFYING INDIVIDUAL SPEAKERS, THE BBC CANNOT VOUCH FOR ITS ACCURACY. ........................................................................ NEWSNIGHT ALLIES ON TRIAL A Newsnight Special RECORDED FROM TRANSMISSION: BBC-1 DATE: 14:12:05 ........................................................................ PAXMAN: Tonight on Newsnight: has the so-called war on terror broken international law? Good evening. Welcome to this edition of Newsnight in which we examine some of the charges being laid against America and her allies in the war on terror. We’re joined by two professional advocates, Clive Stafford- Smith, for the prosecution and John Cooper, who’ll represent the defence. Each have their own witnesses, including a Guantanamo Bay detainee and a colonel who led his man in the war. The case will turn upon two central allegations. Firstly: that the allies have broken the rules of war in their treatment of prisoners. And secondly: that they’ve used excessive and indiscriminate force in Iraq. We have a balanced jury watching the proceedings here in the studio. The conflict in Iraq has now lasted 1,000 days. Tens of thousands have died but tomorrow an historic Parliamentary election will be held. We’re not concerned tonight with whether the conflict was necessary or politically worthwhile, but with whether there is a case to answer that in prosecuting the war and the wider war on terror, the allies have broken international law. Three of our jury are broadly supportive of the allies and the war in Iraq. Three of them oppose the allied approach and six are undecided or have no view. Tonight’s case will come in two parts. Later we’ll examine how the war in Iraq has been fought. But first: the accusation that in the war on terror the allies have mistreated prisoners. We’ve asked two professional advocates to represent each side of the case. Each will call witnesses and those witnesses will be cross- examined in turn. First, for their opening statements they have one minute each. Clive Stafford-Smith, first for the Prosecution. Clive Stafford-Smith Prosecution LawyerB Thank you very much. Ladies and gentlemen, we bring these charges really more in sorrow than in anger because there are some politicians, particularly American politicians who seem to have forgotten what decency is all about. Let me tell you first of all what’s not at stake tonight. We’re not arguing about whether Saddam Hussein’s a bad guy; we can all agree with that. We’re not arguing whether the bombing in London was a tragic event; of course that’s true. But what we are arguing about is what some of our folk have done. Abu Ghraib, with the ghastly torture of prisoners there. Fallujah: 5,000 civilians killed, including children, journalists shot. And also torture and sending prisoners to other countries for further torture, like Binyan Mohammed, one of my clients, from Britain, sent to Morocco where a raiser blade was taken to his genitals. Now all of this acts as a recruiting sergeant for Osama bin Laden and it’s morally wrong. And what we’re talking about tonight is whether we’re going to bring those responsible for these actions to task. Thank you, very much. PAXMAN: Thank you, Clive Stafford-Smith. Now the opening statement for the Defence, one minute, from John Cooper. John Cooper Defence Lawyer Ladies and gentlemen, good evening. It’s important that we understand as we try to grapple with these very important and emotional issues that war is not a fine science. The protection of our country is not a finely balanced equation. If someone could devise a method of war where there would be no casualties then I’m sure everyone in this room would subscribe to it. A war without tears is something we would all want but that’s the stuff of science fiction. The allies face accusations of torture and illegality in the theatre of war. It is your decision to decide whether in the heat of battle they have disregarded the law, or whether they have behaved with a proper and proportionate response to a very difficult set of circumstances. No one condones torture, ill treatment or illegality at war. But you have to decide whether the allies in fighting a new and dangerous threat have committed a criminal offence or whether they have conscientiously taken steps to make all our lives safer. ALLIES ON TRIAL WAR ON TERROR PAXMAN: John Cooper, thank you. So to the first charge: that in the so-called war on terror the allies have conspired to abduct individuals without charge, take them across international borders and leave them to torture and cruel and degrading treatment in violation of international conventions. Peter Marshall summarises the accusations. VT (DETENTION) MARSHALL: We’ll examine two main accusations: that the allies have conspired to abduct individuals without charge across international borders and that they’ve left them to torture and degrading punishment. This would be in violation of Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture. BUSH: Either you’re with us or you are with the terrorists. MARSHALL: At the start President Bush drew a line. BUSH: I intend to lead our nation, along with others like our close friends in Great Britain, to win this war on terror. MARSHALL: But the American approach stretched the loyalty of allies when they transferred hundreds of what they said were al-Qaeda supporters across the world to Guantanamo Bay where they held them without charge or sentence. Donald Rumsfeld US Defence Secretary They’re enemy combatants and terrorists who are being detained for acts of war against our country and that is why different rules have to apply. MARSHALL: Terrorist attacks from Bali to Casablanca to Madrid were cited as reasons why the old rules don’t apply. The President’s lawyer advised in a memo after 9/11 that: “Geneva’s strict limitations on questioning of enemy prisoners were obsolete and some of its provisions were now quaint.” Condoleeza Rice US Secretary of State Renditions take terrorists out of action and save lives. MARSHALL: Some prisoners are the subject of extraordinary rendition, the CIA’s practise of transferring suspects from one state to another for interrogation in so-called “black sites”: secret prisons. This by its nature is a dark area where the evidence is concealed. But former detainees say they or others were tortured. The Americans say they don’t support torture and the interrogations prevent terrorist attacks like those in London. Jack Straw MP Foreign Secretary As we’ve said often enough, we have no evidence of that to which you’re referring. MARSHALL: Britain’s Foreign Secretary maintains he has no record of any CIA prisoners passing through the UK. But others say Britain and other European countries are legally obliged to ask the Americans what they’re up to. Franco Frattini EU Justice and Security Commissioner We should investigate because our aim is not to investigate against United States, our aim is to investigate, to explore whether or not abuses are made. PAXMAN: Now Clive Stafford Smith for the prosecution will call his first witness. Each lawyer will have three minutes to interview their first witness and three minutes to cross-examine their opponent’s witness. Clive Stafford-Smith. SMITH: Thank you. I call my first witness, Moazzam Begg, a former prisoner in Guantanamo Bay and actually the first client I met there. Mr Begg, introduce yourself to the jury please. Moazzam Begg Former Guantanamo Bay detainee My name is Moazzam Begg and I was a detainee held by the United States of America in Afghanistan for a year and in Guantanamo for two years. SMITH: Where were you first seized and how? BEGG: I was seized at my residence. I was abducted by Pakistani and US agents in 2002 of January. SMITH: When you were in US custody, what was the worst form of abuse that you suffered? BEGG: I was hogtied with my hands behind my back to my legs and hooded and beaten and threatened with further torture – being sent to Egypt to be electrocuted and raped and also next door… I was subject to the sounds of a woman screaming, who I was led to believe was my wife. SMITH: And how did impact you personally when you heard that… about your wife? BEGG: It’s very difficult for me to talk about that even now but I broke down physically and mentally. SMITH: Despite what you went through were there things that other prisoners went through that were even worse, to your knowledge? BEGG: Yes, I’ve witnessed in some fashion or another beatings that I believe led to the deaths of two detainees by US soldiers. SMITH: These were homicides committed by soldiers? BEGG: These were murders I believe. And they were later investigated by United States CID, who later asked me, ironically, if I’d be ready to stand up as a witness in a trial against these soldiers. SMITH: But that’s never happened, right? BEGG: No. SMITH: Now in terms of some of the other prisoners who were in Guantanamo Bay, for example, Binyan Mohammed, have they suffered even more perhaps than you? BEGG: Well I know about his case that he’s one of these extraordinary rendition cases where he was taken from Pakistan… SMITH: This is him over here, right? BEGG: That’s right. And he was sent to Morocco where he was subjected to great amounts of torture with also the presence of MI5 agents who were also present at my interrogations during the complete duration of my… SMITH: If you don’t mind being a bit graphic, what sort of torture did he go through? BEGG: Well, I believe that some of the things that he endured included a razor blade being put to his chest and later that his penis was actually cut and blood was flowing all over the place as a result of it. SMITH: And is there any doubt in your mind… I mean you flew in a plane, you were rendered effectively to Guantanamo and to Afghanistan in a plane something like this, is there any doubt in your mind that the Americans have transported prisoners to be tortured in other countries? BEGG: I have absolutely no doubt in my mind at all. I’ve met several detainees during my time, particularly in Bagram, who told me about the extraordinary renditions where people were taken from Indonesia and elsewhere and taken to Egypt to be tortured; where Americans were not involved in the torture but they were certainly present to take… extract information. SMITH: In your personal experience and opinion have repeated crimes been committed by allied, especially American, personnel? BEGG: I think so. I think there’s absolutely no doubt. And one thing I’d like to mention also is that… that where I was tortured in Bagram, before that the CIA told me that a certain other person was tortured there and taken to Egypt where he was tortured into saying that the United States believed that the… SMITH: I’m afraid our time is up. If you would answer the questions for my colleague. COOPER: Yes, good evening Mr Begg. Let me make it clear that everyone has sympathy for your own personal story but much of it is a personal story, isn’t it? You have no first-hand experience of what’s happened, if anything, to these people in Guantanamo? BEGG: I do have because I was held in Guantanamo myself for two years. In solitary confinement for at least 18 of those months. COOPER: During the time that you were in Guantanamo, no doubt you wanted to get out of it. BEGG: Of course. COOPER: Did you therefore agree to participate with all tribunal hearings to enable you to get out of Guantanamo? BEGG: At one point… the tribunals are different to the commissions. But the commission process I rejected. The tribunals I agreed with. COOPER: Why did you reject the tribunal? BEGG: Because the tribunal, I was advised at that time by my lawyers, to do so. COOPER: But nonetheless, despite that you nominated nine witnesses who could be interviewed on your behalf, didn’t you? BEGG: That’s correct, yes. COOPER: Why is it that a majority of those witnesses did not cooperate or want to reply on your behalf? BEGG: I think that the facts of the matter is that they did and in fact the United States military authorities said that they were unable to find these people, one of who included my father who they were well aware of was in contact with the British Government. COOPER: Well one of them was your wife who didn’t even reply; that’s right, isn’t it? BEGG: My wife was also one of them and they were again told by the United States Government that they’re not able to contact them at all. COOPER: You understand that one of the reasons of these regimes is to protect people, for instance, from the atrocities in Bali? BEGG: I was in custody during the time of Bali so I have little knowledge about that. But things like that, you know, they’ve destroyed not only the lives of the people there, they’ve destroyed lives of people like me who’ve been caught up by the United States authorities… COOPER: You agree with the right of people to defend themselves, don’t you? BEGG: Absolutely, yes. COOPER: In fact you said in a television interview in February that you subscribe to the right of all people to defend themselves? BEGG: Yes, I did. COOPER: Than you agree that the West has a right to defend itself? BEGG: There’s a difference between defence and there’s a difference between doing something over and above that call and I think that what they’ve shown so far with the tortures and the renditions and the murders that I’ve witnessed, it goes far… above and beyond self defence. It goes into cruelty and inhumane treatment. COOPER: But would you agree there’s some very dangerous people in Guantanamo Bay from whom society needs protection? BEGG: I think that there are but the problem is now that society as we know it has completely changed because of the reaction of people like President Bush, who’ve unleashed their weapons of destruction on the world. COOPER: Do you think society has responded because of the threat of terror and needs protecting? BEGG: I think that just as any other crime has to be dealt with, I think terrorism is a crime and it needs to be dealt with as a crime as opposed with dealt with through war. COOPER: The majority of people in Guantanamo Bay are there for good reason, aren’t they, Mr Begg? BEGG: The majority of the people in Guantanamo Bay, as I quote from interrogators who have told me before, that there’s not one person Guantanamo that has committed a belligerent act against the United States and if they had been they would have put them through a show trial to let the world know. COOPER: Well that’s hearsay, like much of your evidence, isn’t it? BEGG: Well, I think that’s my experience and if you can disprove it then you can do so, and if you can’t then you have to take my word for it. COOPER: We will seek to disprove it. Thank you, Mr Begg. PAXMAN: Well you can stand down now Mr Begg. We will now move on to the first witness for the Defence. John Cooper. COOPER: Yes, I call my first witness who is David Rivkin, a former legal advisor to the White House. RIVKIN: Thank you, John. COOPER: Mr Rivkin, can you hear us? RIVKIN: Yes, I can hear you. COOPER: Thank you. What is your occupation, Mr Rivkin? David Rivkin Former White House legal adviser RIVKING: I’m an attorney in private practice in Washington. COOPER: And what is your speciality? RIVKIN: International law, Constitutional law. COOPER: Can I ask you about rendition please, Mr Rivkin. What is the rationale behind the principle of rendition? RIVKIN: The primary rationale is to bring individuals from one country where they happen to be found to another country that has a keener, more direct interest in those people. For example, if the United States captures a terrorist that is of some interest to us but he’s really committed horrible crimes in Egypt and Morocco, as a part of multilateral cooperation with those countries, we’re going to transfer him there where they can interrogate. That way they can try him for his crimes. That is quite normal procedure. Let me also point out that absolutely the case, rendition is a venerable practise: took place in 19th century, throughout 20th century. Certainly not unique to this conflict and certainly not unique to what’s being done by the allies. A perfect example, the French, for example, rendered Carlos the Jackal out of Sudan in the 1990s and he quite vigorously protested this method before a European human rights bodies and that application was rejected. COOPER: So is it right then that rendition has been used for what one might call “worthy” purposes through history? RIVKIN: Absolutely. And the key purpose, again, is the part of multilateral cooperation, so you don’t have one country taking it upon themselves to really vindicate the interests of other countries. It is not at all to torture people. COOPER: If one renders an individual to a country to a country from where they’ve come, what is your view as to the internationally right way of doing it? Is it proper to render them to countries that require them? RIVKIN: Well, let’s be clear. Rendition as such is not objectionable. If you’re transferring people to another country for purposes of torturing them, that would be, indeed, objectionable. If you’re transporting people with a good judicial system, you do not need to seek any assurances from them. If you’re transferring people to a country that’s had some human rights problems, it is appropriate for you to seek assurances which you are to take seriously that they would not do so. Now the critics would say, “How can we take assurances of countries like Egypt or Morocco or Jordan seriously?” My response to them: the very same critics invariably urge United States and Britain to take seriously assurances of counties like North Korea and Iran on the key issue of nuclear non-cooperation. COOPER: Can I ask you this… RIVKIN: We have to take sovereign countries as we find them. COOPER: Does rendition protect people from terrorist outrages? RIVKIN: Absolutely it does because let’s keep in mind, if we’re not going to cooperate with countries in other ways that serve their interests, none are going to cooperate with us. COOPER: Thank you very much, Mr Rivkin. PAXMAN: Clive Stafford-Smith, your witness. SMITH: Mr Rivkin, this is Clive Stafford Smith, we haven’t seen each other since law school 20 years ago. It’s a pleasure to see you again. RIVKIN: Likewise. SMITH: Now, Mr Rivkin, we agree that prisoners should not be sent to foreign countries to be tortured and abused right? RIVKIN: Absolutely true. SMITH: And you have said, for example, that you would not personally be comfortable sending anybody to Syria, right? RIVKIN: Well… I think you have to look at the gravity of the offences by the… SMITH: You said that November the 17th, 2005; didn’t you? RIVKIN: That is correct. But I would also say Syria, for example, is being given another chance by international community in the context of cooperation over the assassination of a senior Lebanese official. So I would be prepared to consider rendition to Syria, if Syria undertook very clearly not to engage in torture and if they backed it up. Look, we have to take sovereign countries as we find them. We have to… we monitor their behaviour. SMITH: Well let’s talk about Syria if we could. Let’s talk about Syria. September 2002, the United States took a Mr Hara, a Canadian, off a plane in New York, rendered him to Syria and he suffered 10 months of torture; is that not true? Being hit with shredded paper. RIVKIN: I would absolutely… With all due respect, these are allegations I’ve heard. I’ve absolutely no first hand or even second hand information about how Mr Hara was treated in Syria. SMITH: No one’s denied it, have they? RIVKIN: Well, if that is the case… SMITH: Let’s take Morocco. You said that people should be sent to a country that has a keen interest in them. My client Binyan Mohammed… RIVKIN: Right, a country that has a keen interest because of events and… SMITH: Excuse me. May I ask my question, Mr Rivkin? RIVKIN: Sure. SMITH: My client Binyan Mohammed had no connection to Morocco and yet the CIA took him on a plane, we have the flight log, he was taken there and he was tortured with razor blades to his penis. That’s a crime, isn’t it? SMITH: Well, if that’s indeed what happened, it is a crime. But let me point out that it doesn’t matter what your opinion is about the extent of Morocco’s interest. Again, we live in a world of sovereign states. SMITH: But it’s a crime isn’t it? RIVKIN: If a sovereign state of Morocco told the United States… SMITH: The CIA took him, didn’t they? RIVKIN: Well, you are assuming that a… SMITH: Well let’s assume a few other things that are facts, Mr Rivkin. Mamdouh Habib, an Australian, was taken to Egypt where he was tortured with electric shock torture. That’s a fact. Do you think that’s a crime, or not? RIVKIN: If it is indeed what happened, it is a crime. SMITH: Okay. RIVKIN: But I would submit to you that under your… if I may finish. Under you narrative, every rendition seems to involve people in which the host country, the country that’s taken them has zero interest and every individual’s been tortured. That is absurd. SMITH: Well I’m just questioning your testimony. Now water boarding is in the CIA manual and that’s a torture method that you’re opposed to, right? You said on Court TV, January 25th, 2004, that that shouldn’t be used and yet it’s in the CIA manual. RIVKIN: I am opposed to water boarding. I do not accept the notion that there’s, quote, “a CIA manual” that features water boarding. I certainly have no information. SMITH: You have said, quote, “The system is working and we have nothing to apologise for.” Do you stand by that statement? RIVKIN: I stand by the following statement: in this war, as in any other war, there have been some individual violations where individuals are involved in prosecuted expeditiously and harshly, much more so than in any war in human history, but also… SMITH: Thank you, I’m afraid our time’s up. RIVKIN: … than in penal system, in civilian justice system, individuals are also tortured and individuals are also being unjustly abused in prison. PAXMAN: Okay, Mr Rivkin, thank you. RIVKIN: This unfortunately is a reality of human condition. PAXMAN: Thank you. Time to hear the second prosecution witness. Sir Clive Stafford Smith you have one minute thirty. SMITH: Thank you very much. My second witness, Shami Chakrabarti, is director of the charity Liberty. Shami, if I may, what evidence is there that people have been rendered for torture? Shami Chakrabarti Director, Liberty CHAKRABARTI: Well firstly, there is the American statements, like the one you heard from Condoleezza Rice in the earlier package that rendition happens and it saves lives. SMITH: And that’s illegal, right? CHAKRABARTI: It’s kidnap, in my view. Let’s… if we were talking about crimes as we would all understand them, rendition as I understand it… whatever happens at the end of the rendition, that’s where we get into the torture bit, but rendition itself is kidnap: forcibly taking someone from one place to another without legal process and without their permission. SMITH: And you’re familiar with specific instances like Binyan Mohammed… as we were just discussing with the last witness? CHAKRABARTI: Absolutely. And we’re familiar with this because there is individual testimony from people who say they have experienced this. We’re also familiar with this because the Americans on their own case say rendition happens; it saves lives. I ask the question: what is the point of rendition if it is not to take someone to a place where human rights standards are not respected? SMITH: How many people… do we have any idea how many people have been rendered around the world in terms of flights and people? CHAKRABARTI: Well, it’s likely, I would suggest, to run into hundreds. The Americans on their own case talk about 150 people in prisons in Europe. And then one wonders about how many people have been taken outside of Europe. So, I mean I can’t be precise about these figures… SMITH: Okay. CHAKRABARTI: ...but it looks like hundreds, possibly thousands, rather than single digits. SMITH: Thank you very much, our time’s up. If you’d answer his questions. COOPER: Good evening. CHAKRABARTI: Good evening. COOPER: Is rendition contrary to international law? CHAKRABARTI: Yes. COOPER: You say it’s “kidnapping, in your view”, but are you saying that rendition as such is contrary to international law? CHAKRABARTI: Yes, I am. COOPER: Which law is it contrary to? CHAKRABARTI: Well, I… certainly rendition for the purposes of torture would be contrary to the UN Convention Against Torture and that would be on Condoleezza Rice’s own case. And very happily she said just last week when she was in Europe that if people… that American personnel are… COOPER: We have one minute, so if perhaps if I could – without being disrespectful to you – cut you short a little. Rendition to a country that does not country then is legal in your view? CHAKRABARTI: No, it isn’t. COOPER: In what way is it illegal; under what basis? Not the conversation Condoleezza Rice, not the discussions of American politicians, but as a matter of law? CHAKRABARTI: It is kidnap. And kidnap is recognised in… under domestic law of most civilised societies and indeed in international conventions against kidnap. COOPER: Kidnap as a matter of common law is simply someone being taken against their wishes that are not under detentions; that’s right, isn’t it? CHAKRABARTI: And without due process of law. Of course what should happen is: extradition. If someone is a terror suspect I would have no difficulty whatsoever with them being lawfully extradited. COOPER: What we have here are you giving examples of individuals, but the actions could save thousands, if not millions of lives couldn’t they? CHAKRABARTI: Not in my view, no. COOPER: Not in your view? CHAKRABARTI: In fact, I believe that indulging in this kind of lawlessness, in particular, in torture, is sending terrible signals across the world… COOPER: Thank you very much indeed. Your time’s up I’m afraid. CHAKRABARTI: ..that makes us less safe. PAXMAN: Okay, now to the final witness in this section. Mr Cooper, who are you calling as the second Defence witness? COOPER: Yes, thank you. I call my second witness: Sir John Taylor, ladies and gentlemen, who lost his daughter Carrie in the July 7th bombings. Thank you, Mr Taylor. I indicated just a moment ago you tragically lost your daughter Carrie, is that right? TAYLOR: That’s correct. COOPER: Your experience of seeing her on her last day must have been traumatic? John Taylor Father of Carrie Taylor TAYLOR: Well actually I didn’t see her on her last day. She left earlier, before I got up. She went to work with my wife. They travel up every day on the same train and they have a little ritual on the end of the train station where they kiss one another goodbye and wave to one another as they walk away. COOPER: We’ve heard of the finer points of what is or is not kidnap, what is your view about what steps that can properly be taken to protect people like yourself and people like your daughter, Carrie? TAYLOR: I would hope we could deal with our dirty washing in our own backyard. I would like to see with it dealt in this country. But if we have to send people away to other countries, I’m not opposed to that. COOPER: As far as you’re concerned, do you want to live in a safe and secure country with your Government doing it’s best to protect you? TAYLOR: Absolutely. Our Government should protect us as best as possible. COOPER: Thank you. There'll be other questions asked of you. TAYLOR: Thank you. PAXMAN: No there won’t, Mr Taylor, you've suffered enough, let me just express my sincere condolences for what you've been through. MR TAYLOR: Thank you very much. PAXMAN: Well now we turn to the second area of allegations, this is about some of the tactics used in fighting the war in Iraq. Broadly the accusation is that the allies have not treated prisoners and civilians in accordance with international law. Here's Peter Marshall with a brief summary of the charges. VT (IRAQ) ALLIES ON TRIAL WAR IN IRAQ 22 March 2003 [archive footage] PETER MARSHALL: The broad charge against the allies in Iraq is that their conduct has been excessive and indiscriminate. This would be in violation of Protocol 1 Section 1 of the Geneva Conventions on the methods and means of warfare. "the Methods and Means of Warfare" source: Geneva Conventions on War Protocol 1, Section 1, Article 35 US OFFICER: A campaign characterised by shock, by surprise…. MARSHALL: Last night's attacks heralded the beginning of the shock and awe campaign threatened by London and Washington. From the first the nature of the war was questioned. What the Americans termed "shock and awe" critics saw as the wholesale bombing of civilian areas. While the military held news conferences to explain precision strikes, the world was also shown that there was collateral damage and what that phrase meant. [Crying child in hospital, head swathed in bandages] MARSHALL: President Bush blamed Saddam. BUSH: Saddam Hussein has placed Iraqi troops and equipment in civilian areas attempting to use innocent men, women and children as shields for his own military. MARSHALL: There were US attacks where those reporting the war were victims. A tank fired at a Baghdad hotel killing two cameramen. "indiscriminate attacks are prohibited… Those not directed at specific military targets" Source: Geneva Conventions on War Protocol 1, Section 1, Article 35 The Al Jazeera correspondent was killed when his office was shelled by the US. Critics say it was deliberate, the Americans say accident. 'Storyville: The Control Room' Courtesy Al Jazeera [news footage] November 2004 In the fighting with insurgents they blame for attacks including suicide bombings, the allies are accused of laying siege to cities, notably Fallujah and cutting off essential food and water. "Acts… to spread terror among the civilian population are prohibited" Source: Geneva Conventions on War Protocol 1, Section 1, Article 35 The allies say Fallujah was an insurgent stronghold and they observed the rules of conflict. The Americans used white phosphorous, they say to illuminate the battlefield rather than to burn the enemy. "means of warfare is not unlimited" Source: Geneva Conventions on War Protocol 1, Section 1, Article 35 As for those detained in Iraq, there are claims of ill-treatment and torture. The Americans who run Abu Ghraib prison say these were criminal aberrations committed by a small number of soldiers who have now been jailed themselves. None of it, they say, was US policy. PAXMAN: Well now Clive Stafford-Smith has three minutes with his first prosecution witness on these allegations. STAFFORD-SMITH: Thank you. My third witness is Dahr Jamail, a US reporter who spent several months covering Iraq. Dahr, hi there. Dahr, tell the jury, how long were you in Iraq? Dahr Jamail Iraq War Journalist JAMAIL: I spent 8 months working in Iraq. STAFFORD-SMITH: And you went to Fallujah at its most dangerous time, putting your life at risk, tell the jury a bit about that. JAMAIL: I entered Fallujah during the April 2004 siege on a bus carrying humanitarian supplies into a small clinic as a way to get in and it was during a so called ceasefire according to the US military, but when I went in it was anything but a ceasefire. There were US warplanes dropping bombs in the city, and sporadic fighting everywhere. STAFFORD-SMITH: In the attacks on Fallujah, approximately how many civilians were killed? JAMAIL: During the April siege there were 734 people killed about 500 of those civilians, but in the November siege it was far worse because the entire city was declared a free fire zone by the US military and according to an Iraqi NGO there were 5,000 civilians killed. STAFFORD-SMITH: And that would have been about 10% of all the people left, the civilians in Fallujah at that point, right? JAMAIL: That's correct, that's about 50%... ah.. 50,000 stayed. STAFFORD-SMITH: What kinds of... we're talking about war crimes, what kinds of war crimes did you know about there in Fallujah? JAMAIL: I have photographic evidence and saw personally several ambulances that had been shot by US snipers according to medical workers and civilians, interviewed many doctors about testifying that there were US snipers placed atop the Fallujah General Hospital which impeded medical care and made people too afraid to go to the hospitals to get help. STAFFORD-SMITH: What was the most moving moment in your experience in Fallujah? JAMAIL: I was at the small clinic during the April siege and I watched a man come up in his own car since ambulances weren't in use, and carry his six year old son into the clinic. His six year old son, according to the father, had been shot by a sniper, a US sniper, and he ran into the clinic – needless to say in a total panic – laid his boy on the table and watched doctors work on him feverishly, but they were unable to save him, so I watched this little boy die. STAFFORD-SMITH: There's been a lot of talk of abuse of prisoners. Did you witness the abuse of any prisoners by the United States forces? JAMAIL: I interviewed many Iraqis who testified about being very mistreated and abused and tortured in fact by US soldiers and CIA in secret… in detention facilities around Iraq, some of them secret, some not, some from Abu Ghraib, some not. For example, one man in particular, a 55 year old named Sadiq Zoman was detained from his home in 2003, held for a month by US soldiers, then dropped off in a coma at Tikrit General Hospital by soldiers with electrical burn marks on the bottoms of his feet and genitals, bludgeon…. STAFFORD-SMITH: I'm afraid our time is up. JAMAIL: …. marks at the back of his head. STAFFORD-SMITH: I'm sorry to cut you off but if you could answer the questions of my colleague. COOPER: I think the question was that Mr Stafford-Smith asked you was: "Did you witness any of this?" And I think your answer is "No" is that right? JAMAIL: Which in particularly? The torturing or what happened in Fallujah? COOPER: The incidents that you just spoke of at some length a moment ago. You said you interviewed many Iraqis about it. Did you witness it was Mr Stafford-Smith's question. Could you answer that question, did you witness it? JAMAIL: I personally didn't. COOPER: Thank you. JAMAIL: I saw… COOPER: Thank you for that. JAMAIL: …hospitals that had been shot and I interviewed doctors that testified about that. COOPER: Thank you for that. Let's deal with again what you witnessed rather than what you've been told. The ambulances that were shot at, did you witness them being shot at by American snipers? JAMAIL: I did not… COOPER: Yes or no? JAMAIL: … see the actual ambulance, no. COOPER: Thank you. It's right, isn't it, that insurgents also shoot at ambulances, isn't it? JAMAIL: I have not heard any of that myself, no. COOPER: Amongst all you've been hearing, you've never heard of insurgents targeting civilians? JAMAIL: No, I personally did not… COOPER: You haven't? JAMAIL: …hear any instances from Iraqis of civilians being targeted intentionally by insurgents in Fallujah, not personally. COOPER: You're not personally… JAMAIL: Because… I'm reporting what I saw which was civilians in Fallujah testifying about US soldiers sniping all around the city. COOPER: So let me understand your evidence. You've seen American soldiers misbehaving all the time, or heard of it, but you've never seen a single insurgent do anything wrong. Is that your evidence? JAMAIL: That's not. I'm not saying that an insurgent has not... an insurgent bullet has not killed a civilian, certainly that would be a ridiculous thing to say. COOPER: And an insurgent bullet could go to an ambulance as well, couldn't it? JAMAIL: Well of course that's possible but I don’t really understand why insurgents would be targeting ambulances, picking up civilians when it was absolutely US policy to.. as a free fire zone in Fallujah, according to the military themselves they shot literally anything that moved in the street whether they were civilians or ambulances. COOPER: You're saying… you are saying that it is US policy to shoot at ambulances, is that what you're saying Mr Jamail? JAMAIL: I'm saying that according to the US military during November when the entire city was declared a free fire zone by the US military itself, which they said this, that anything in the street that moves is a target, a legitimate target, that includes ambulances, and that includes civilians and that's exactly what happened. COOPER: Are you willing to criticise the appalling behaviour of insurgents shooting at civilians? It's appalling… JAMAIL: Absolutely. COOPER: It's appalling, isn't it? JAMAIL: Of course that's appalling. Of course it's appalling. COOPER: And it goes on. JAMAIL: When any civilian dies… COOPER: It goes on. JAMAIL: Yes, of course it does. COOPER: And it could go on with all the examples you've given, ambulances, civilians, insurgents as much as US soldiers could have been responsible. That's right, isn't it? Thank you. JAMAIL: But what I am discussing is what Iraqi doctors have told me and civilians all around Fallujah said from different parts at different times. PAXMAN: Mr Jamail your time is up I'm afraid. Thank you for joining us. Time now for the first witness for the Defence in this area of the conduct of the war. Mr Cooper. COOPER: Thank you very much. I call my third witness, Colonel Tim Collins who commanded the 1st Royal Irish Regiment in Iraq. Yes, Colonel Collins, perhaps I could ask you this. What is your professional judgement, not hearsay or gossip, your professional judgement on the conduct of coalition forces in Iraq? Colonel Tim Collins Royal Irish Regiment, 1998-2004 COLLINS: I think they're dealing with as best to their abilities with a very difficult set of circumstances and environment against a brutal and unprincipled enemy. COOPER: The assault on Fallujah, was it necessary? COLLINS: Absolutely, I regard it as a form of hostage rescue. COOPER: Elaborate on that please. COLLINS: Well by and large the town of Fallujah had been seized by insurgents and terrorists, primarily terrorists, many of them foreign fighters. The population to a large extent was held against its will and to a great extent some of the population were given the opportunity to leave, many did, but many were prevented from leaving by the insurgents so they could be used as human shields against the laws and conventions of war. COOPER: What is your professional assessment of the enemy that faced the joint Iraqi US forces? COLLINS: A brutal savage enemy whose policy and procedure is to use all means at their disposal and as a policy to breach the laws of war. COOPER: We're obviously aware of transgressions that have taken place in Abu Ghraib. What is your view on that? COLLINS: I believe Abu Ghraib was a very... a disaster for the allies, it was wrong and I believe the people involved in it have been brought to book. It's been fully investigated and I understand that they're serving jail sentences for what they did. COOPER: But it's right, isn't it, that despite the fact that illegality takes place say in Wandsworth Prison, we don’t close Wandsworth Prison down, do we? COLLINS: I think that in all penal institutions you can find instances of people behaving inappropriately, that's regrettable. It should be investigated and the guilty punished. COOPER: How important, finally please, was the action of allied forces in Fallujah? COLLINS: It was crucial, and I think that the town has been liberated from the insurgents. I believe the town is now a better place, but I know that international bodies have investigated up to I believe the number I was told by a commander there, 27 individual acts of breaches of international law including use of mosques as fighting positions, use of mosques as arsenals, three torture chambers, numerous events of interfering with corpses, using corpses as booby traps. I could go on. COOPER: And this is perpetrated by who? COLLINS: By the insurgents. COOPER: Thank you very much. PAXMAN: Clive Stafford-Smith. SMITH: Thank you, good evening Colonel Collins. Now you wrote an interesting article on September 18th of this year in the Observer and I just want to ask you if you adhere to these views: "It's time for our leaders to explain what's going on. The irony is that I made certain assumptions that my goodwill and altruistic motivations went to the top. Clearly I was naïve." Do you agree with that? COLLINS: That's right, yeah. SMITH: And you went on to say that American policy in Iraq was all about subjugation, my view is that we were sold a dummy, as in a rugby dummy. COLLINS: No, what I've said is American experience of dealing with other countries, including the Red Indians in America is one of subjugation whereas we in the United Kingdom are more used to acting in partnership with those that we come in contact. That's a cultural issue. SMITH: Fair enough. Now you said in your article as well that in terms of all the things that had gone wrong in Iraq: "If there was part of the war on terror then history might notice that the invasion has arguably acted as the best recruiting sergeant for Al-Qaeda ever, a sort of large scale equivalent of the Bloody Sunday shootings in Derry in 1972 which in its day filled the ranks of the IRA." You would agree with that and adhere to that view? COLLINS: Yeah, and I would elaborate to say that essentially what we had there was the invasion was ill-conceived because of the rebuilding of Iraq. A vacuum was created. Into that vacuum, because we didn't have a solution for the population, flowed the forces of evil which have brought about the insurgents... insurgency but there's also terrorism going on, there's two… there's three essentially problems in Iraq. There's crime, there's an insurgency as a result of what has happened after the invasion, and there is international terrorism, and all of those are destroying Iraq and the people who they're killing are the people of Iraq and that's what we want to stop. SMITH: Let me ask you about Abu Ghraib and I'll show you a picture of obviously something you're familiar with which is this shocking thing and you agree that electrocuting prisoners, sodomising detainees was a horrible, horrible offence, right? COLLINS: It's wicked and I understand the people have been punished. It's counterproductive as well. Torture does not work. SMITH: Of course you're right. Let me ask you though, they haven't been punished in the case of my client Hussein Mustapha who had a broomstick shoved up his anus, and when we've reported it to the Americans, they've done nothing. COLLINS: I'm afraid I know nothing about your client and his bottom. SMITH: And sadly it is true that the Americans committed crimes during their tenure in Iraq, isn't it? COLLINS: I believe that there have been a number of Americans put on trial and some sentenced to prison sentences for crimes. SMITH: Thank you very much. PAXMAN: Now for the last two witnesses. They appear not in person here in the studio but on tape. Each will be introduced by the relevant lawyer. First for the Prosecution – Clive Stafford-Smith. SMITH: Thank you. My fourth witness is Dima Tahboub who is the witness of Tariq Ayub who is an Al Jazeera journalist. Al Jazeera called in the coordinates of their headquarters there in Baghdad to make sure there was no repetition of the bombing of their office in Kabul, and just a short while later the Americans bombed it and killed her husband. Dima Tareq Tahboub Witness for the Prosecution TAHBOUB: He shouldn't have been a casualty of war, he was only a person doing his job trying to report to the world what was going over there. Dima Tareq Tahboub Widow of Al Jazeera journalist TAHBOUB: He had… his only weapons were his camera and his voice and what he was saying and reporting about the situation in Baghdad. I just want the people who killed my husband to come and look my daughter in the eye (emotional) and tell her why did they do that. He was just doing his job. He wasn't even... you know… biased. He was telling... he was just showing people that these are the pictures and this is what they are doing. So just kind of look her in the eye in front of all the world and tell her why did they kill her father. SMITH: And they can say that this was a mistake but of course we all heard about President Bush and the memo about targeting Al Jazeera and we all know about other Al Jazeera places that have been bombed. It's up to you to decide if it was intentional. PAXMAN: Right, well now for the second Defence witness on this area of the controversy, also on tape, introduced by Defence counsel John Cooper. COOPER: Thank you ladies and gentlemen. I'd like to introduce Bayan Rahman who is the Kurdish high representative to the United Kingdom. We hear much of the problems of individuals that the Prosecution have brought to your attention. Perhaps at times it's easy to forget the tribulations, the trials, the tortures, the degradation of people who suffered in Iraq in the regime of Saddam Hussein. It's easy perhaps in the diatribe of criticism that's levelled at the allied forces to forget these people who have suffered before that intervention. Ladies and gentlemen let's hear from her now. Bayan Sami Absul Rahman Kurdistan Representative to the UK RAHMAN: I think while the debate rages about whether the allies were right or wrong to invade Iraq or liberate Iraq, there is something that seems to have been forgotten which is the suffering of the people of Iraq under Saddam Hussein's regime. The fact that we have got rid of Saddam Hussein and his henchman should surely be a cause for celebration. I myself voted in London yesterday and you can see that from my finger, and I'm very happy to have done so because this proves that Iraq is on the road to democracy, is on the road to having politics take over rather than insurgency and violence. COOPER: There are individuals represented by eloquent lawyers that we've heard from today, but there are masses and millions of people who are better off now. PAXMAN: Well that concludes the witness testimonies tonight. In a moment we'll speak to our jury but first let's hear the concluding statements from the two advocates. First Clive Stafford-Smith. SMITH: Thank you. The issue here is that two wrongs don’t make a right. The fact that Saddam Hussein might have been a terribly bad person doesn't mean that we should abuse prisoners. And this is a great tragedy because after 9/11 there was a huge reservoir of goodwill for the US and we've thrown that all away through Abu Ghraib, through killing children and civilians in Fallujah, through Guantanamo Bay, through not living up to the principles that make us decent human beings. This is what this trial is all about. I am sorry, it is a tragedy, it's not something that makes me angry, it makes me very, very sad that we have not behaved according to the ideals that we should be upholding and we've got to tell the people who are responsible, it's not the little people, it's not the people we always pick on. It's the leaders, it's the people who say that it's okay to go out and abuse people and say it's okay to fly them for torture. Those sadly are our leaders and they're the ones who need to be reminded that decency is a good thing. PAXMAN: Clive Stafford-Smith thank you. John Cooper you have one minute. COOPER: People who do wrong should be punished, there's no doubt about that whatsoever. But here we have right minded people, soldiers out there in the field, fighting for democracy and the safety not only of people in Iraq and other troubled countries but people in our country as well. No one goes out to deliberately break the law, to torture, to degrade anyone. It's scandalous that that should be the case and virtually scandalous that it should be suggested. But there is a balance to be struck here between issues where things do go wrong through no inherent fault of anyone, it is war, and issues where soldiers, politicians, leaders, and people like ourselves should be able to defend ourselves. As Mr Begg said to us, we all have a right to defend ourselves. That includes us, within the law, properly within the law, as well as others. PAXMAN: Gentlemen thank you both very much. Now this is not a court of law. If it were the jury or the presiding judges would have more or less as long as they liked to make up their minds. That is not a luxury available to us tonight. Let's find out now what our jury makes of the arguments they've heard. At the beginning of the programme three of them were broadly supportive of the allies approach, three were broadly against. The remaining six were undecided or had no views. So on the first charge, on the issue of detention and torture, how many of you were persuaded by the case made by the Prosecution, by Clive Stafford-Smith's argument? Hands up please. And unpersuaded siding with John Cooper's defence? Hand up please. Anyone still undecided? Two of you still undecided. On the second charge of excessive and indiscriminate conduct in the war in Iraq, who is persuaded by the Prosecution? Unpersuaded? That's close. And undecided still? Right. Who's changed their mind? Tell me why. JURY MEMBER: War is a horrible thing but based on the facts that we've seen tonight I believe that what we've seen we did the right thing. PAXMAN: So you previously were undecided or you previously were against the war? JURY MEMBER: I was previously undecided. PAXMAN: And now you think horrible thing that we… Anyone else changed their mind? Yes, you sir? JURY MEMBER: I was undecided but now I actually think that it was wrong to do what we've done, considering um... it just seems to be that the man over there is saying that torture almost seems to be okay, and I think we should have procedures in place to stop that happening in the first place. PAXMAN: I don’t think he was saying that, but that's what you took him to say. Mr Ellison, you were undecided beforehand I believe. JURY MEMBER: I was certainly undecided about going to war, but I think what I haven't been persuaded is why the war has already started, apart from the terrible events of 9/11 and the events that have happened since then, no one has really explained to me what it is and who it is we're fighting and why, I don’t understand who the enemy is and why they attacked us in the first place. PAXMAN: That's another issue maybe for another time. Now [points to a jury member] you were supportive of the war. Are you still after what you've heard tonight? JURY MEMBER: I am certainly, however I do believe perhaps we should reflect on it and think to ourselves that … to countries that have atrocities on human rights, we might need to think about that. Secondly, due legal process certainly work needs to be done there but third, perhaps allowing international bodies like Amnesty International to get access to these individuals would be a good idea as well. PAXMAN: Now [points to a jury member] you were against the war and you're still against it after hearing the evidence tonight. JURY MEMBER: Yes, I would say probably even more so. Just hearing these awful incidences of torture and there's no guidance, there's no one to protect these people, only the hearsay stories, so if they weren't doing any torture then why can't it be open? PAXMAN: Okay, well those are the views of 12 members of the public. We'd also like to hear what everyone else thinks. You can send your verdict and opinions on the arguments you've heard tonight to our website: bbc.co.uk/newsnight. You can also watch the programme again in broadband. Well thanks to everyone who took part, our jury, our advocates and our witnesses. Kirsty Wark will be back with more tomorrow but until then from all of us on the programme goodnight. CREDITS PRESENTED BY Jeremy Paxman PRODUCTION TEAM Vara Szajkowski Lucy Crystal Bobby Friedman Mark Lobel Joe Mather Nick Menzies Claudie K. Milne Maria Polachowska Katie Snape Rachel Thompson GRAPHIC DESIGN Rob Burrell Jonathan Ashworth Ashwin Chohan Julie Tritton PROGRAMME ASSISTANT Leanne Ward RESOURCES ORGANISERS Lorraine Inguanez Jacqueline Healy ASSIGNMENTS MANAGER Geoff Callister STUDIO SOUND Chris Evans STUDIO LIGHTING Dave Weighell VISION MIXER Sammi Saunders CAMERA SUPERVISOR Matthew Brayshaw FLOOR MANAGERS Jacqueline Baddeley Peter Beaven TECHNICAL MANAGER Ian Allen PRODUCTION ASSISTANT Pat Smylie UNIT MANAGER Lesley Meachem PLANNING EDITOR Neal Dalgleish NEWS EDITOR Robert Morgan STUDIO DIRECTOR Barton Macfarlane PROGRAMME PRODUCERS Sara Afshar Jasmin Buttar DEPUTY EDITORS Mary Wilkinson Daniel Pearl Newsnight EDITOR Peter Barron