Civil rights lawyer and death penalty activist Clive Stafford Smith, recipient of the IBA Human Rights Award 2010, gave an interview to the IBA on a variety of topics. In this interview, he discusses Guantanamo Bay, the US and UK legal systems and his work as a criminal defence lawyer in capital trials in the United States. Also discussed during the interview is his work as a criminal defence lawyer in capital trials in the United States, the death penalty, pro bono work and the Obama administration.
RL Rebecca Lowe
CS Clive Stafford Smith
Rebecca Lowe, IBA interviewer (RL) I’m Rebecca Lowe from the International Bar Association, and I’m sitting here today with top human rights lawyer, Clive Stafford Smith, who has spent the last 30 years defending individuals from death row. For the past eight years he has defended over 80 inmates of Guantánamo Bay, and during the course of his career he’s saved nearly 300 individuals from death row in the United States. Welcome, Mr Stafford Smith. Thank you very much for joining us at the International Bar Association.
Clive Stafford Smith (CS) And I’m insisting that you call me Clive, by the way – just so we can get that straight.
RL Okay, welcome Clive. Thank you very much for being here today. It’s very kind of you to join us. Just to start, I’ve been reading your biography and your CV and all the wealth of media information there is on the web about you.
CS It’s all lies!
RL Well, you seem to be a very busy man, and I was just wondering whether you ever get to sleep at all or have fun.
CS My life is all fun. I never understand these people who think that the work of, you know, those of us who are do-gooders, and I classify myself in that group – I suppose it’s better than being a do-badder – I never understand why people think that’s so hard. It’s great. It’s so much more interesting and entertaining than what I think most people have to do for a job. So my whole life is fun.
RL So could you maybe describe to us an average day in the life of Clive Stafford Smith, if there is such a thing?
CS Well, it’s changed a lot, and there’s no real average day. I mean, I spent 20 years doing capital trials in the deep south of the US, so that was very different. I really love the fact that now I don’t, and no judges generally tell me where I’m meant to be and when. So I live in Dorset, which is the centre of the universe. I don’t know if it’s really familiar to most people that it is, but, you know, Galileo was wrong. But my wife is from down there, and we live in this lovely little village called Symondsbury, and we live in a house that we rent that was built in 1452.
RL Is it true you work in the shed, though, no matter how much you love the house?
CS No, no, I used to work in the shed. The house we own is a tiny little cottage, and actually then, when we were in that house I worked in the shed of the manor, which was great. But we moved next door to rent the place next door, and now there’s space for me to stay. I don’t have to go to the shed except for doing handiwork.
RL Could you tell me maybe a little bit about your background and your upbringing in Suffolk, I believe? What were the main influences in your early life?
CS Well, I grew up in Newmarket. My family had inherited out of the blue what we call stud, which I think in the US we’d call a horse farm. To say I lived on a stud probably wouldn’t sound right to most Americans. And so I grew up there for the first ten years of my life. But it was very difficult in the sense, for my father, that he was manic depressive and so he had a very difficult time. He wouldn’t recognise it, so he ended up bankrupting the stud. You know, I don’t lay any blame on him for that. But nonetheless, I was still terribly privileged and lucky. I went to what the British euphemistically call public schools, which naturally means they’re private. And I had a very fortunate background.
RL And was your father quite a seminal influence on you, then, and what you went on to achieve in your career?
CS My father had a massive influence unintentionally on me, in large part because people really didn’t like him and they thought he was a fraudster. And he really wasn’t; he totally believed all the schemes that he would come up with. And it was an enormous relief to me, when I finally understood, and not until my teenage years, that my father was mentally ill. My mother was very much a part of teaching me that. They had divorced, but my mother was always very keen for us to have a positive relationship with my father no matter how difficult he was to her. And so she definitely wanted me to see him as not a bad person.
And I think that was hugely important to me, to see that someone that close to me, who did all these weird things… I mean, I remember when I was seven, my dad came up to me and he gave me £200 and said, now buzz off, you’re old enough to live by yourself. And he started banging on about how when he was 16 he was in the RAF in World War Two and that at aged seven it was perfectly reasonable for me to live alone. And I found that quite confusing. My mother, sadly, took the money from me and sent me off to bed, but things like that used to happen all the time, and it was quite a relief to figure out that my dad had mental problems.
RL And is that what then helped you to understand people that you’ve defended since then, to understand that there is always some sort of underlying reason behind what they do, rather than just some impulse for evil?
CS Well, absolutely, and I think that’s true of everybody. It’s always very interesting if you ask people who is the person you most love in life? Could you really imagine sending your dad to prison for the rest of his life or sentencing him to death? Probably not.
CS And it’s interesting that we as a society are willing to do those things to people that we don’t know, and I’m not sure we would be willing to do them to people we care about. And so yes, certainly my dad’s problems taught me that there are very often reasons. There are always reasons; whether they’re excuses or not is a different question.
RL Well, that leads us on quite nicely to the work that you’re most famous for, the Guantánamo Bay – you knew it would come up; it always does.
CS That’s infamous.
RL Now, you were one of the few lawyers that was given access to the prison.
CS To begin with; there were lots.
RL To begin with, yes. Could you give us a brief description of what it was like on that first moment when you arrived at the prison? Was it what you expected?
CS Well, there was a long lead up to that. It took us two and a half years of suing to get in there, but when I finally went down to Guantánamo for the first time, it was just bizarre. I mean, you know, it was just its own little universe, goldfish bowl, where I didn’t think anyone was really in touch with the real world; neither the prisoners nor the staff. You know, you started off with this thing where they had them… the motto was, honour bound to defend freedom. I’m sorry, I thought this was a joke, you know. There was no freedom there, there was no liberty and there was no due process, no nothing.
And as we went into the McDonald’s one of the first days I was there, this very nice chap, who was a colonel, who was my escort… we’re going into the McDonald’s and one of the soldiers salutes and says, honour bound, sir. And the colonel salutes back and says, to defend freedom, soldier. And I laughed; I thought this was a joke being done for me. It was just very, very odd.
There would be a sign as you went down to the prison where it would say ‘today’s principle is compassion’. And this was at a time when prisoners were being very, very badly abused. And the soldiers were very interesting. They would talk to me, in the early days, before they were forbidden to, and many of the soldiers thought it was absolutely bizarre. They had been told the most outrageous things about the prisoners, and they gradually learned that those things weren’t true.
RL That was going to be one of my questions, actually, whether you felt that the soldiers there were complicit at all in what was going on in the same way as maybe now we see members of the Nazi party being complicit in, say, the Holocaust.
CS Well, I’m not going to make a comparison between the soldiers in Guantánamo and the Nazi party, but I’ll make a comparison between the soldiers there and the prisoners there, and that is that both of them were indoctrinated or enforced to try to do exactly as they’re told. And they’re manipulated, if you will, with the same methodology. And I was always trying to get my clients to see that they should be sympathetic with the soldiers instead of angry with them, because just as the prisoners had their whole ego taken away by being instructed [on] everything about their lives, including when they could go to the toilet; so the soldiers were basically inducted in the same way. And I would be loathe to say that the soldiers were the evil people in Guantánamo; they weren’t. There were some very bad things done by the military down there, but I don’t think that necessarily made them all wicked people.
RL So who are the people to blame, and what should happen to these people in your opinion?
CS You know, I don’t think the blame game is terribly helpful. I think the most important thing is to understand. When we look at the last ten years, the big problem is not really torture; we’ll win that battle eventually, however horrendous it is. The big problem is going to be secrecy, that all of these horrific things have happened in secret. Everything I learned from my clients in Guantánamo Bay is secret and classified until I’m told that I can talk about it by the government. Well, that’s just wrong. And, you know, you can’t learn from history unless you know what that history is, and there has been a concerted effort on both sides of the Atlantic to suppress the truth of why we made these mistakes.
Trying to prosecute George Bush or Tony Blair compounds the problem. I mean, they just start asserting their right to remain silent, and we never do learn the problems. What we need is a true enquiry to determine what it was that led people like George Bush and Donald Rumsfeld to make these catastrophic errors in judgment, so that we can set in place rules for the future so it doesn’t get repeated; that’s what I’m interested in. We can’t cure the past, but we can prevent it being repeated if we know what happened and approach it sensibly.
RL I’d like to ask just a little bit about your clients in Guantánamo Bay. From reading a lot of the literature on the web, it seems that almost all the inmates there were innocent and good men who were pulled away from their families and their lives and put in this terrible place.
CS Can I disagree with that for a minute?
RL Well, that’s what I was going to ask you? I mean, that seems to be the impression: that all of your clients were innocent people. Now, is that not the case?
CS I’ve never said that and I never would say that. I hesitate to say I’m innocent, but on the other hand, there is a shocking reality there, which is, when I went there, I thought that the vast majority of people would indeed have been captured on the battlefield in Afghanistan. That’s what Donald Rumsfeld said. He said all of them were captured on the battlefield. Now, that turned out to be a monstrous lie, and indeed, by my estimate over the years, fewer than 50 per cent were actually captured in Afghanistan at all. The vast majority were seized in Pakistan. And a very large number of them were indeed innocent.
Now, let me just give you their figures, the government figures: 779 prisoners, roughly, have been held in Guantánamo Bay. Before we ever got into a real courtroom, 500 of them had been released, and the US Government had made a decision that those 500 were supposedly the least dangerous or whatever. So you’re left with about 270 people. Since that time, since we finally got into a courtroom, we have had over 40 prisoners who have gone through the whole process; they’ve been given a trial. The burden of proof on the government is very low. It’s not beyond a reasonable doubt; it’s just a preponderance. They’re allowed to use secret evidence. The prisoners aren’t allowed to know what that secret evidence is. They’re allowed to use hearsay. Despite the incredibly relaxed rules and the very relaxed standard of proof, we have proven that more than 70 per cent of the prisoners were innocent, according to the judges, not according to me. Now, that’s pretty shocking, because this is a distillation of not just Donald Rumsfeld’s worst of the worst, but these are the worst of the worst of the worst, because by now 500 have already gone, and yet they’re still wrong. It’s better to toss a coin than it is to depend on the US military getting the right people in Guantánamo Bay.
Now, that’s shocking. Not everyone is innocent. I never said that. But an enormous number of people are. And what we need to do is look at this very carefully and work out why it is that what we’re doing is so catastrophically wrong. Because imagine this – I mean, first we got Bagram; far worse than Guantánamo. We’re still doing the horrors of Guantánamo in Afghanistan in Bagram today. But worse yet, we’re targeting, supposedly, assassinations; we’re trying to kill people. We’ve got a kill list, and if our kill list is as bad as our Guantánamo list, we’re wrong in the majority of cases. We then fire a drone with bad intelligence at those supposed people. We very rarely get them, but we get a bunch of other people. And what we’re doing is we’re creating an enormous amount of ill-will in Pakistan and in Afghanistan because we’re so bad at what we think we’re doing. What we need to learn from this is how to take a different approach. And yes, I’ve certainly got some suggestions on that.
RL Would you like to give us a couple of suggestions now?
CS Well, I would, actually. Sorry, you’ll have to excuse me. No, this is the problem. You can’t bomb people into democracy. You can’t make the world a better place by going around killing a lot of people. If you think about Guantánamo as a sociological experiment, what we’ve done in Guantánamo is make the world exponentially more dangerous because we’ve forsaken all of our rules. You know, we say we’re fighting a war for democracy and the rule of law, and yet we threw it away. The first thing we did was we denied people any legal rights. And there was a CIA agent who said in 2004, that was early days, that for every prisoner we have in Guantánamo Bay, we have inspired ten people that want to kill us. Now, it’s sad that we’ve done that, but what that illustrates is how bad Guantánamo is. It hasn’t done anything positive, but it’s done a huge amount of negative.
In a very simplistic sentence, but the concept is true, the greatest weapon that we have in our arsenal to fight terrorism and the wicked things of the world is the rigid enforcement of the rule of law and human rights. If we behave well, and we live up to our standards, more people like us, fewer people want to kill us, and as a result, we’re safer overall. And that, in a simple way, is the great lesson we should learn from the last ten years. We’re not learning it; we’re learning the wrong lesson, exactly the opposite of that.
RL Now, you went from England to America in your early career.
CS Before my career; it was in my teens.
RL As a student, and you obviously had reasons for deciding to stay and live in America for a length of time. Could you maybe explain whether you think its legal system is better or worse than the UK system, and how they compare?
CS Well, I’m British and American, right? So I get to be quite schizophrenic. If you’re asking me to critique, if you will, the United States, I guess I’d turn it around this way. What I find annoying about the British is that the British bang on about how hopeless the American legal system is with all the bad things about it like electing judges and so forth. You know, some of those criticisms are perfectly valid. But what the British always do is, they always copy the worst things about America. They never copy the good things. And I gave a talk one time, the Longford Lecture, about the good things we should copy from America. And quite frankly, I’m much less interested in criticising the bad things than I am about trying to foster the good things.
So, to give some very, very basic examples; the United States has a vastly better attitude towards the legal rights of those put on trial. We have a Fifth Amendment, we have a right to remain silent. The British abolished all of that a while ago. We have a situation where you really do have genuine advocacy for the person you’re representing. The notion in Britain that you have to keep an emotional distance from the prisoner if you’re a barrister is an anathema to me. I’ve represented a lot of people in death penalty trials, and if I don’t get to like that person, I can’t possibly represent him or her.
And one could go on and on. There are very interesting things in other parts of the law, you know. Even when you look at bankruptcy law, if you look at the First Amendment, it’s the most wondrous thing. The British just don’t get free speech, they really don’t. And so on and so forth; we could go on and on for hours. I would love to have a conversation about that. But I’m not really interested in criticising the American system. There are good things, and we want to emphasise the good things. Now, there are some bad things. I’m writing a book about it right now, which will detail some of the things I think are problematic about the Criminal Justice System in America, but that’s not really what we want to talk about.
RL So you’re not interested, maybe, in putting forward some ideas for how it could be changed?
CS Oh yes, no I’m interested in making it better, absolutely. [A few] very simple things to make the American system better is to get rid of the election of all judges, get rid of the election of prosecutors; make the process far more fair towards the person on trial. So for example, you look at the Supreme Court, where they ruled on Giarratano v Murray, an individual who is on death row, in all those years of collateral appeals, has no right to a lawyer under the US constitution. That’s insanity, and, you know, I’ve represented dozens and dozens of people and never been paid once for doing…
RL Didn’t you write an essay on that as a student, and that’s what made you decide to become a lawyer rather than a journalist in the first place?
CS I wrote a book about it, which will never see the light of day. I was a student, I wanted to be a journalist like yourself, and I found a way to sink lower in the public estimation.
RL Well, I didn’t like to say, but…
CS No, no, look, I was writing this book about… I was only 20, and I was writing a book about a guy on death row in Georgia, and it came as an enormous surprise to me that he didn’t have the right to a lawyer. And I would go to death row every day and all these people would be there and they had no right to counsel. So that’s why I went to law school, to do something about that.
RL Well, that actually moves us on as a nice segue to your work with Reprieve, because it strikes me that it may be frustrating for you that maybe Guantánamo Bay does dominate the headlines, perhaps much more so than your other work perhaps with the secret prisons around the world that the US is involved with and other people stuck on death row. Do you want to maybe talk a little bit about what else you’re involved in and maybe things that the media hasn’t caught up with?
CS Well, I’d say this: I’m not in the least concerned that Guantánamo dominated the headlines for the last few years, because it didn’t the first few years. Then from 2002, 19 February 2002, when we first sued, until we got the Supreme Court to start hearing the case, there was no one on our side; it was very hostile. I got death threats; I didn’t get anything else. So it’s only been later down the line that the media got all excited about Guantánamo. And as we deal, for example, with secret prisons like Bagram in Afghanistan and other places that the US is still party to abusing prisoners round the world that may not be in the media spotlight yet; it will be – we’ll put it there. And you know, let that be a warning to President Obama to stop doing that stuff.
Now, in terms of death penalty cases, not every case needs to be tried in the media. The reason we tried Guantánamo Bay cases in the media was there was nowhere else to do it. The court of public opinion was really the only court that we had access to for a long time. And I think they need to be looked at very much as symbiotic, the court of law and the court of public opinion. If you can achieve justice in the court of law, you don’t need the court of public opinion. And very often in capital cases we can do that. And sometimes we can’t.
RL What do you think is the most important or influential force for change in society? Is it lawyers, is it politicians, is it the media, is it none of the above?
CS It’s none of the above. The most influential force for good is good people doing the right thing. They’re not just lawyers or politicians; very rarely, sadly, politicians. But it’s just decent people doing decent things, in any field. I mean, one thing… I’ll tell you about a bizarre aspect of something I’d like to see. You know, we have this ridiculous honours system in Britain. And it is silly, but on the other hand, I think it’s a good idea; you should take people who are doing basically decent things… I read in the paper about some guy who got an honour for hedge-cutting in Derbyshire, for example; that’s good. If people are doing those things, they get some recognition; they don’t get money for it. That’s a good way to recognise decency around the world, instead of pretending that the only way you recognise people is by paying exorbitant salaries; that seems bizarre to me.
RL One good person that you’ve spoken about in the past is a Lorelei Guillory. She said, you’ve mentioned that she was one of your biggest inspirations and she testified, I believe, in defence of the man who killed her six-year-old son. Now, you persuaded her to meet this man.
CS I didn’t really persuade her; she wanted to do it. I’m very glad she wanted to.
RL Okay, well, my next question was going to be that you seem a very persuasive man, and I just wanted to know, maybe, what the key is?
CS No, I think with Lorelei Guillory, this was the deal. The person I was representing, Ricky Langley, is a paedophile, and, you know, if you look again at the comparison between Britain and America, the British think the Americans are racist and are hateful about death row. But if you ask British people, what are they hateful about, when you get really down to honesty, it’s paedophiles; they hate paedophiles with a passion.
Now, the vast majority of people have never met a paedophile. I’ve represented a lot, and I can tell you, there is nobody who chose to be a paedophile and who likes himself because he is. And Ricky was the archetypal example. He was seriously mentally ill. The wonderful thing about Lorelei… Ricky was on death row; we got him a new trial. And I would talk to Lorelei, because, you know, of course you should talk to the victim. The fact that you’re against the death penalty doesn’t mean you’re in favour of victims suffering. And Lorelei was against the death penalty, because she was Catholic and she had problems with it. And she was being manipulated by the prosecutors in a horrible way. But in the end, she wanted to meet Ricky, and I let her and I encouraged her. And I said, ‘look, you can talk to him [about] anything you want. I won’t be there. And if you think he’s guilty of something you can testify against him about it; I don’t care. Because I think you’ll see that the truth is what I’ve told you the truth is, which is that he’s insane’. And she did. She spent three hours alone with Ricky, and she called him Langley all the time, and as she came out she was convinced that what I’d told her was true, and she said, ‘Ricky, I’m going to fight for you’. And she ended up testifying that Ricky not only shouldn’t get the death penalty, but he shouldn’t go to prison for goodness sake. She testified Ricky should go to a mental hospital for the rest of his life, which is where he wanted to be, because he was so seriously mentally ill.
I don’t feel I persuaded her to do that. I think she wanted to do it, and it was tremendously good for her to do it, because… think about it this way; our society encourages people to be vengeful. Tony Blair was always banging on about how the victims have to have a chance to bang people up forever. You know, the whole of American Criminal Justice has been focussed on vengeance and revenge for so long. If you think about what your mum told you, Mrs Lowe, when you were young, she didn’t sit you on her knee and say, ‘look, Rebecca, I want you to be vengeful’. Instead she tried to inculcate you with decent beliefs, compassion, mercy. Now, it’s not always easy to do that, but it’s so obviously right, and when someone like Lorelei is able to do that in circumstances of a case like Ricky’s… and I asked her, when she said she wanted to testify, I said, ‘look, I’ll only ask the questions you want’. And she said, ‘only ask me one question’, and that was this – when that man over there killed your son, do you think he was mentally ill at the time he did it? And her response was this: she said, and she turned to the jury and she said, ‘well yes, as matter of fact, I think he was. I think that since the day he was born, Ricky Langley has been crying out for help. And for whatever reasons family, society, the legal system has never listened to him. And as I sit on this witness chair, I can hear the death cries of my son, Jeremy, but at the same time I can hear that man crying out for help. And I think that he was mentally ill when he killed Jeremy’.
You know, that was a remarkable, remarkable moment, and I admire Lorelei immensely for it, and I think she epitomises what we should be. Now she was an alcoholic young woman from south west Louisiana, not the person you’d necessarily expect to be the epitome of everything that we should be, but she was. And what we need is for politicians and media to hold that up as the goal that we should strive for; not all the unpleasantness.
RL You’ve spoken a little bit about how close you get to your clients and how you can’t represent somebody that you don’t like.
CS I can; I just do it very badly.
RL Now, I understand that yesterday, Teresa Lewis was executed in Virginia. Now, how do you feel when you hear something like that? Does it hit you on a very emotional level?
CS It’s just very sad. I mean, you think about the story of Teresa Lewis such as we know it, that she’s borderline mentally retarded; as the US would say, mentally disabled. Very, very low IQ and, you know, she’s accused of getting two guys to kill her abusive husband and her stepson. Now, let’s assume it was all true. It’s not something we’d want happening in our society. It’s terrible, but you can certainly see many, many influences that come to bear on how that came about. And I know that if she had had decent representation at trial, really effective representation at trial, she would never have ended up on death row. So I guess the thing that makes me sad about that – saddest is that it illustrates what Steve Bright, my old boss at the Southern Centre for Human Rights many, many years ago said – is that the death penalty is not for the worst criminal, it’s for the person with the worst lawyer. And that is so, so, so true. I mean, I’m so immensely grateful that of all the people I represented at trial in America, none of them ended up on death row. You know, it wasn’t that I didn’t lose cases, but I never had someone who I represented at trial end up getting executed.
And it’s not that hard to win a case; it’s not that hard to persuade 12 jurors not to kill somebody. It really isn’t. You’ve got to do your work; you’ve got to be prepared and you’ve got to know what you’re about. And unfortunately when you look at lawyers, the most effective, high-powered lawyers represent huge corporations. The person whose life is at stake is killed.
RL Do you think therefore that it should be mandatory for all lawyers to do pro bono work?
CS No, no, no. I think this pro bono stuff is fine if people do it. I admire the people who do it. It helps us immensely. But that’s not how you want to run your life; they should do their whole lives on it. They shouldn’t just do ten per cent; they should do all of it, partly because it’s so much more interesting. I mean, what I do is so interesting and to me, so desperately important. I’m not saying that people who make other choices are wicked, but I think frankly, they make the wrong choice. I think they would enjoy their lives vastly more if they took that law degree that’s given them so much power, and they turned that power to the people who really need it – the folk who have none.
RL Now, I can understand why you’d want to save people from the death penalty, and I think most people would understand that…
CS Not everyone, trust me.
RL Not everyone, but, perhaps once you’d had a couple of minutes with them, they probably would. But would you ever defend somebody from conviction if you knew that they were guilty?
CS What a silly question; of course I would. I mean, I don’t like representing innocent people. Whether someone did it or not is not very interesting. Let me ask you this question; my legal advice to you is, don’t answer. What is the most despicable thing you’ve ever done, that you’re most ashamed of, that if we judged you based on that one act, we would despise you – what is it?
RL I’ll take the Fifth on that.
CS Of course you will. You know, this notion that human beings are only the sum of the worst things they’ve ever done is ridiculous. Now, people may have done it; they may not have done it. I’ve represented a lot of innocent people, and I hate it, and indeed, I’m representing some people on death row now, who I’m utterly convinced are innocent.
RL You said you hate representing people who are innocent.
CS I hate it. I hate it, because it’s so difficult to maintain faith in any process of any sort when 12 people on the jury and the prosecutor and the judge and the appellant judges all say you should die, and beyond a reasonable doubt, we think you should no longer be in the world with the rest of us, when actually they didn’t do it at all. I mean, what sort of a system does that? And one of the problems there is this: if I were to ask you, how sure do you have to be before you send someone to prison beyond a reasonable doubt? What percentage proof do you require? Is it 90 per cent? Is it 75 per cent, 95 per cent? What do you say?
RL 99.9 per cent.
CS Okay, well 99.9 per cent would mean of the two million people in prison in America, you’re aiming to have 10,000 innocent people. So, you know, maybe that’s a standard; maybe it’s not. But the judges, when I asked that of a judicial conference in Louisiana, they averaged 83 per cent. And some judges said 75 per cent. So they’re aiming to get it wrong, you know, once in four goes. They’re aiming to have half a million innocent people in prison in America.
RL And that’s just collateral damage is it for them?
CS Well, no, it’s just that it’s the shocking hubris of the legal system that it thinks that it’s really capable of sneering at people and saying, you’re so wicked, we’re going to do this to you. And I have a real difficulty with that attitude. Now, when you’re representing people who did it, it’s a whole different thing. It’s fascinating. When you’re at a penalty phase of a capital case, and instead of arguing whodunit, you’re saying, why did this happen? Let’s try to understand why this happened. We’re not saying it’s a good thing; we’re not saying that it’s all excusable. We’re just trying to understand, because if we understand we might help it not happen in the future. Now, that’s much more interesting, and it’s also so encouraging that jurors, when you really get to talk to them, almost invariably do come to see the good parts, the decent part, the human part of the prisoner.
RL Can I give you a hypothetical? You defend a paedophile. You’ve spoken about this, and he is released and he goes on to commit another crime; a terrible crime. Do you regret that you got him released or are you…?
CS Unfortunately that’s not the reality of the world. The reality of the world is I represent someone who’s innocent and he gets convicted. And you know, the thing that we should think about very carefully in our world is not how we can sneer at the flat earth society views of the past, you know, whether the world is the centre of the universe or whatever; notwithstanding the fact that Dorset is. The real question is, when we look around us today and say ‘what are the crazy things that our society believes today?’ And I’ll give you just one very brief example: it’s the entire American attitude, and the British attitude, to Shaken Baby Syndrome. It is utter, utter, unscientific drivel. And I’ve represented someone who I am not only convinced he didn’t commit the crime, but I’m utterly convinced that no one committed the crime and the child died by accident. And yet he was on death row, we got him a new trial, I did the retrial, and he was convicted and sentenced to life in prison for something that I’m absolutely convinced he didn’t do.
Now, people always say in American law, better that 100 guilty people go free than that one innocent person go to prison. They say that, but they don’t mean it. What they mean is, actually, we’d like to bang everyone up. The subject of my upcoming bestselling book is going to be to illustrate for you, I hope, not that this happens in a system because we’re human and we make mistakes, but actually, our judicial system inexorably is designed to make that happen, for a whole series of reasons, but you have to buy the book. Or I’ll give you a copy.
RL Okay, and last question about the death penalty; is it feasible to get it overturned in the US, and if so, in what time period are we talking about? And how will it happen?
CS Of course it is. Look, do you think the banning of witches at the stake was a good idea?
RL Well, if they were really witches…
CS On balance. It’s kind of interesting that they confessed to being witches. It shows that you can coerce people into false confessions. No, on balance, you don’t think burning witches was good. And in fact, when the history books have been written, they think it’s rather barbaric. When the history books are written, can you imagine in however many years time, that people are going to look back at this era and say, the fact that we ritualistically went through this process to sacrifice a human being in the name of saving lives, that that was a good and civilised thing – of course not. It’s a ridiculous notion. I’ve watched people die, and when I come out of that execution chamber and look up at the stars at night, is there any slight argument that the world has suddenly become a better place? No, of course not.
So the only difficult thing is the second part of your question, which is, how long? And I don’t know. I think we’re on the road to abolition quite fast at the moment, but on the other hand, there was an execution last night, and it’s small solace to her that the death penalty may be abolished, because she’s dead.
RL But how will it come about? Does it need to be a social change that then seeps up to the upper echelons, or is it going to be something that the government will make a decision on?
CS It depends. I mean, in Britain, it was very much imposed in a paternalistic way from the top down of society, and in America, it came awfully close in 1972, when five benign Supreme Court Justices – that’s all it took – said that it was unconstitutional. I don’t know quite how it will work. It will work in different ways in different places, but we’ll win that battle; there is zero doubt about it.
RL What do you think of the Obama administration at the moment? Do you have faith that they will have a better response to how they deal with the War on Terror, as the previous administration?
CS No, first, let me interrupt. It’s the War of Terror, as Borat calls it, not the War on Terror.
RL Sorry, that was in inverted commas. You can’t see; you’re off camera. Because I was reading on your Reprieve website yesterday, it mentioned two human rights workers, one a lawyer, were arrested this week in Uganda as part of a US sponsored security response, in inverted commas, to the August bombings in Kampala. And I understand that many more are being abused, detained without charge, interrogated, subjected to illegal rendition, denied counsel and so forth. Now, this sounds very familiar from the Bush era, and it’s maybe not what people expected when Obama came to the throne in the USA. So is it the same old…?
CS I’m not sure we’d agree in the USA that there is a throne. The White House throne. Now, look, in response to that, I feel sad when people have such great potential and they waste it. And you know, one would say that of Tony Blair and one would say it in part of Obama. Now, I voted for him. I think that at heart, he seems a very, very decent person, which I’m not sure one would say that at the end of Tony Blair’s reign. But, this is the problem: they have a saying, my wife’s friends from Australia, that politicians and judges and others in that sort of circumstance, never get the long brown envelope of home truths delivered to them. By which I mean that when I do something truly asinine, my wife tells me. And Emily’s quite willing to remind me that I’m a twit, and so I get at least encouraged not to be more that way in the future. There was a fascinating thing in the paper the other day from Berlusconi, who said he had a conversation with Margaret Thatcher about how Thatcher’s press officer never showed her bad media; only showed her good media that was flattering about her because she found it too depressing to see the bad media. And Berlusconi said he does the same thing. You know, unfortunately people in power get that all the time; surrounded by yes men who tell them what they want to hear on one hand [but] more dangerously they’re surrounded by people in positions of authority who are quintessentially the wrong people to be in that position.
Again, the subject of my upcoming book is that if you take a vast generalisation, people who become law enforcement officers don’t become law enforcement officers because they lack faith in the system. If you look at the psychological studies of them, they have overwhelming faith in the system, which means they’re going to make mistakes all the time. Not because they’re bad people, but because they’re inherent mental attitude is to believe that the system gets it right most of the time. Donald Rumsfeld was a very good example of that, as best one can see from his public persona. Obama is surrounded by people in National Security, in the military, who became high up in those roles because of who they are, not because they’re necessarily the best suited to judging whether invading Iraq is a good thing, or whether, you know, bombing a bunch more Afghanis is going to achieve things.
What you always want, if you want an advisor, is someone who is truly sceptical about whether your plan is going to work or whether your plan makes sense. And if you have that, you’re more likely to make the right decision. And Obama has made the wrong decision all the way through on the War of Terror, simply because he’s allowed himself to get distracted from his real principles.
RL Do you fear anything about your job? I mean, you’ve been in some very difficult situations?
CS Well, sometimes when you’re there you do. I mean, I respond very badly to being threatened. You know, I don’t respond negatively; I just… you know, Winston Churchill used to practise all of these great sayings, and he was very witty. And I never think of them until a couple of days later, and I wish I did, you know. I’ve been threatened with prosecution; I’ve been banged up, all sorts of things. When it’s happening, it’s no fun. Later on, you can turn it into something positive, normally, as with the famous case of the Contraband Underpants.
RL Yes, I was hoping you’d get on to this actually.
CS What happened there… you know, my wife has a very, very sensible rule, which is that when she thinks I’m very annoyed at something that the government has done, she unplugs the internet, so I can’t send a letter out that I’d later regret. And what happened was, I got a letter from the military accusing me of smuggling contraband underpants, under-armour underpants and Speedo swimming trunks into one of my clients in Guantánamo. And I got this letter and I thought it was April Fool’s Day. And I realised it wasn’t.
RL A below the belt accusation.
CS No, no, it wasn’t below the belt; it was just fatuous. I mean, look, first, okay, Speedo swimming trunks are an offense to humankind. I don’t know if you know what they’re like; they’re those slinky Australian things.
RL I completely agree.
CS They shouldn’t be allowed on the planet.
RL There should be human rights legislation against Speedos.
CS There should be, indeed. But first – who cares if the prisoners in Guantánamo Bay have Speedo swimming trunks? The second, the idea that I would do that is absurd. They have cameras everywhere. What am I going to do? Come smuggling underpants in and give them to my clients? So, I was so offended, but you should never take these people too seriously, because if there’s one principle I think I try to instil in the people at Reprieve, it’s that if you say you hate George Bush, he doesn’t care. You’re a commy, pinko Liberal, and it sort of reinforces his sense of self. If you laugh at him, he hates it, so that’s what you should do. It’s all much more fun. So I wrote this letter back saying, look, I don’t know about these swimming trunks, but let me give you some free legal advice. The only place my clients can swim is the toilet in their cells. So if you want to stop it, my suggestion is that you put a notice up above each toilet saying, we don’t piss in your swimming pool, so please don’t swim in our toilet. And I think that should probably solve your problem. As for these under-armour underpants, I don’t know anything about them, but I looked [them] up on the web, and you’re spelling them improperly, but, you know…
RL What, missing a 'U', were they?
CS Yes, something like that. And at any rate, I went into this long thing about under-armour underpants. So I was telling that story, and I tried to send the letter, but Emily had unplugged the internet. So I waited until the next morning when in theory I would have calmed down. I sent it anyhow, and I copied it to the New York Times and the Washington Post, because it pissed me off. And they published it all, and it really annoyed the people in Guantánamo.
I was telling this story, and we got a prototype of some orange underpants that the prisoners in Guantánamo should be allowed, which said, ‘fair trial my arse’ across the back. And I was telling this story at Anita Roddick’s funeral, a very sad occasion, but you shouldn’t even take those things too seriously. Fortunately at the funeral was Vivienne Westwood and her son, Joe Corré. And Joe, who ran Agent Provocateur, came out with some really slinky orange underpants that said ‘fair trial my arse’. And then Lush Cosmetics came out with bath bombs, that if you put the bath bomb in the bath, it fizzed and it was orange, and out would pop a picture of one of my clients. And Emily came up with this great slogan which was ‘buy one, set one free’. And we made this whole thing into an immense joke.
RL I can see what your career will be after the death penalty gets abolished.
CS I know what Em’s career would be; she’d be a great advertising agent. But, you know, we made everyone laugh at them, and I think that’s very important, because it illustrated the goldfish bowl that Guantánamo was. The whole thing was absurd, and the fact that people saw it as absurd I think was very good.
One of the things I struggle to do is to find ways in which we can get everyone involved in what we’re doing, because it is all about power; it’s all about bringing power to the powerless. And I do think sometimes, let’s say, you know, you’re an intellectual property lawyer or a corporate lawyer or whatever – frankly, the law of that sort is so boring compared to what I get to do all the time. So I like to give them an opportunity to do it. And also it’s great for us, because the example that you’re talking about is the use of music to torture people.
Now, if you sue the US for torturing people, you’ll get nowhere, because there are so many defences that they can have – security defences, sovereign immunity defences and so forth – that you’ll just get nowhere. And human rights are very hard to enforce in the US. There is no enforceable international human rights agreement that the US has signed up to; none. But, on the other hand, you start litigating over money, now you’re talking. So when I started visiting the prisoners and they would tell me about this music torture, which actually was, Rumsfeld would say, ‘ah, you know, it’s just like having your own iPod’, and try and act like this was no big deal. The prisoners said, to give you the example, Binyam Mohamed had a razor blade taken to his genitals, and he also had the music, and he said he would far rather have the razor blade than the music, because the music just began to drive you crazy and you could lose your mind. And the way he asked the question was rather than ‘would you rather have a razor blade or would you rather have loud music for 24 hours a day’, he said, ‘would you rather, you know, lose your sense of sight – horrible that may be – or lose your sanity, lose your mind?’ And you begin to see what the real issue is.
So you’ve got to get that message across to people, but if you’re too pious and if you bang on about torture, it’s just so boring. So what I thought we’d do is, we’d get musicians to agree to let me represent them, or preferably some of our colleagues who would do it with more expertise in IP law, and we’d sue them for royalties, because if you play music in prison, you have to pay royalties. And I thought it would be a lot of fun to sue the US, because that way they’d have to…
RL You’ve done it before?
CS Oh, lots of times. You’d have to disclose how many times you’d played the music to know how much you had to pay. And I’d love to get Rumsfeld on the witness stand and ask him, you know, why did you use Barney the purple dinosaur or Eminem or whatever, or worse yet, Bruce Springsteen, Born in the USA? Now, why didn’t you use country western music, where I would crack in seconds if you played that to me? And it just has potential for a lot of fun. So there were things like that that will make a very serious point, but at the same time would be entertaining and will get other people involved.
RL Last question, how do you think this decade is going to be remembered in the future?
CS By the vast majority of people it won’t be remembered at all. The great thing about history is that we don’t learn from history at all. And when you talk to people about their perspective on life, it tends to be their perspective on their life and the very short time that they’ve lived, which is why we have so little perspective on the longer term issues. You know, the idea, for example, that Al-Qaeda represented a threat that was in any way comparable to the Cold War that preceded it is just ludicrous. I remember when we were talking about mutually assured destruction between the US and the Soviet Union, where the whole world could be eliminated at a stroke. And the fantasy that a few nutty extremist lunatics could pose the same problems to society was just absurd. But, of course, the way people see it is through the prism of their own recent experience and they forget the world of history. So I’m afraid the vast majority of people will forget the bad things now, because there will be some other panic in 20 years that will… that’s all they’ll remember.
What we need to do as a society is to learn from the last ten years about the catastrophic ways in which the leaders of the world abandoned our principles. And I think that’s something we’ve all got to try to get out there, whether it be in films or books or whatever, so that people do remember what happened and make sure we don’t do it again. Now, I’m not very sanguine that we’ll achieve that, but we’ve all got to work on it, because otherwise we’re going to all be poorer.
RL That’s a good note to end on I think, Clive. Thank you very much for coming in today. It was lovely to meet you. Thank you very much.
CS It’s my pleasure.