Known and Unknown (71 page)

 

I
f you ask most Americans how many detainees were waterboarded at Guantánamo, the likely answers range from three to hundreds. The correct answer is zero. When military interrogators at Guantánamo Bay sent up their chain of command a request to use waterboarding in late 2002, I rejected it. To my knowledge, no U.S. military personnel involved in interrogations waterboarded any detainees—not at Guantánamo Bay, or anywhere else in the world.

There is no doubt in my mind that I made the right decision when it came to rejecting the use of waterboarding by U.S. military personnel. Reasonable people can disagree whether it crosses the line into dubious territory.
^*
It is one thing to argue against coercive interrogation techniques on moral grounds—that they are contrary to America's values and therefore should never be employed. It is quite another to argue against those techniques on practical grounds—that they do not and will not work. While it may make a convenient plank for critics' arguments against the CIA's interrogation program, there are inconvenient facts to the contrary that must also be taken into account.
^*

The men and women of the CIA were given a challenging assignment to interrogate senior al-Qaida operatives. I saw the challenges up close when we discovered that the likely twentieth hijacker of the 9/11 attacks was in Defense Department custody. Administration lawyers fully vetted and approved the CIA's program, giving them the green light to proceed. The men and women of the Central Intelligence Agency who elicited critical information from well-connected al-Qaida members, deserve our respect, not condemnation. They are patriots, not criminals.

B
efore 9/11, our nation had tried treating terrorists as common criminals to be investigated by U.S. law enforcement agencies and tried in U.S courts of law. Our country's counterterrorism strategy hinged on hopes that the FBI or local police would get lucky and stop an attack, and then use American courts to try to bring the culprits to justice.

The law enforcement approach not only failed to prevent terrorist attacks from the first World Trade Center bombing in 1993 to the attempted sinking of the USS
Cole
in 2000, it made it even more difficult to track down the enemy. For example, in 1998, within days After documents made public in court revealed that the United States could intercept Osama bin Laden's cell phone and his GPS location, bin Laden stopped using mobile devices.
^*
If it wasn't clear enough already, the deaths of nearly three thousand American citizens painfully drove home the inescapable conclusion that the U.S. law enforcement approach to terrorism had failed miserably and inflicted a great cost on our nation. President Bush decided America could not afford to keep making the same mistakes.

In mid-November 2001, the President announced that trials for terrorist detainees would be held by specially designed military commissions—not ordinary civilian courts and not military tribunals under the Uniform Code of Military Justice. Terrorists were enemies in wartime, no longer domestic criminals. His order of November 13 specified, “Any individual subject to this order shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death.”
²

President Bush based this order on longstanding American legal precedents. Military commissions, designed to provide due process but specially suited to the circumstances of the conflict at the time, have been used by the United States in many of its wars since the founding of the Republic.
^*
They were established to provide fair trials for enemies accused of war crimes and other offenses. The military commission's procedures have differed from those of existing tribunals—that is, from civilian courts as well as from military courts-martial—otherwise there would have been no point in creating the commissions.

The best-known military commission was created in 1942 by President Franklin Roosevelt to try eight Nazi saboteurs. All of them had lived in the United States at some time prior to the outbreak of World War II, and at least one was an American citizen. They planned to come ashore from German submarines, blend into the population, and bomb American manufacturing facilities. The conspirators made it onto beaches in Florida and Long Island with large sums of cash and explosives, but no farther.

The eight saboteurs were promptly rounded up. There were demands in the press for their swift execution, which FDR favored. He wrote to his attorney general that “[s]urely they are as guilty as it is possible to be and it seems to me that the death penalty is almost obligatory.”
⁴
In three days, FDR's military commission—meeting in secrecy on the Justice Department's fifth floor in downtown Washington—tried, convicted, and sentenced the eight to death. A total of six weeks elapsed between the capture of the saboteurs and their execution.

Critics characterized the President's November 2001 military order as vague and sweeping. Given the uncertainties of the time, it was perhaps inevitable that aspects of the President's order were imprecise.
⁵
Its purpose was to establish only the framework of the military commissions, which led some critics to assume the worst. My longtime friend and
New York Times
columnist Bill Safire criticized the proposed tribunals as “kangaroo courts.”
⁶
I was determined to prove this criticism wrong and to see that the military commissions were fair and would be a credit to America.

Believing in the value of tapping into the expertise, judgment, and experience of experts outside the government, I assembled nine distinguished legal minds from across the political and philosophical spectrum to serve as an outside advisory group to the Defense Department. Government experts are helpful and needed, but it's important to hedge against insularity. I thought the outside group could help fashion rules and procedures for the military commissions and to address the arguments fair-minded critics might raise against them.

We came to refer to this outside group, in shorthand, as the Wise Men. Though they were all wise, they were not all men. They included: Lloyd Cutler, White House counsel to Presidents Carter and Clinton, who had been a junior member of the 1942 team that prosecuted the Nazi saboteurs before FDR's military commission; Bill Coleman, President Ford's transportation secretary, a civil rights hero who was the first black law clerk at the U.S. Supreme Court; Bernard Meltzer, a renowned University of Chicago legal scholar, who served as one of the prosecutors at the Nuremburg war crimes trials; Griffin Bell, attorney general for President Carter; Newt Minow, a distinguished Chicago attorney, who had served as President Kennedy's chairman of the Federal Communications Commission; Martin Hoffmann, a former DoD general counsel and former secretary of the Army; Terry O'Donnell, a veteran Washington attorney and former Air Force judge advocate general; Bill Webster, who had been director of the CIA and director of the FBI; and Ruth Wedgwood, a former federal prosecutor and law professor at Yale and the Johns Hopkins School of Advanced International Studies.

This bipartisan group was not of a mind to rubber-stamp any proposal sent their direction. They were individuals of independent judgment who often disagreed among themselves. They worked closely with Pentagon lawyers to consider precedents, review the legal basis for the commissions, advise on the rules of evidence and procedure for the trials and appeals, and offer comments and criticism regarding all aspects of these complex issues. We were determined to
create a process considerably more protective of the rights of the accused than any previous military commission in our nation's history.

Standing together with the Wise Men, I announced Military Commission Order Number One on March 21, 2002. Among the protections provided for defendants were: the defendant was presumed innocent; the defendant had rights to counsel and to a public trial; and guilt had to be proven “beyond a reasonable doubt” a two-thirds vote of a military commission was required to issue a guilty verdict, just as in military courts-martial under the Uniform Code of Military Justice; and a death sentence would require the unanimous agreement of the members of a commission.
⁷

The first reviews were favorable. “The regulations announced yesterday by the Pentagon incorporate the advice of outside experts and respond to important issues raised by legal and constitutional scholars,” the
New York Times
acknowledged on its editorial page. “When President Bush first issued the order establishing the tribunals last November, critics, this page included, were concerned about potentially secret trials, inadequate legal representation, verdicts based on flimsy evidence and death sentences imposed by divided panels. The regulations issued yesterday dispel many of these fears.”
⁸
Bill Safire also wrote that he was “somewhat reassured by Defense Secretary Don Rumsfeld's ‘refinement' of the hasty order.”
⁹

I asked Deputy Secretary Wolfowitz to spearhead the effort to make the military commissions operable, but it took another year—until April 30, 2003—for lawyers to agree on the crimes that could be tried before military commissions. Everyone involved wanted to do things right—not fast—but President Bush and I found the lengthy delays disturbing. Whenever we expressed dismay at the excruciatingly slow pace, however, we were reminded by lawyers that we risked exerting “undue and improper command influence,” thereby corrupting the military commission process.

Despite the great care we took, some were uncomfortable with the military commissions system. It did not resemble the military's courts-martial system with which military lawyers were familiar. Nor did it resemble the civilian courts with which most Americans were familiar. But the fact was the terrorists we were detaining were not American uniformed personnel to be tried under the Uniform Code of Military Justice. Nor were they garden variety criminals to be tried in American civilian courts. The fact that the detainees were different was exactly the reason the military commissions were different. The lawyers of the captured al-Qaida suspects, along with various groups critical of the war in Afghanistan (and later in Iraq) and of President Bush, mounted volleys of attacks, even before the commission rules were completed. As a result, the commissions came under a broad and sustained assault in the courts, in the Congress, and in the press. Yet no preferable alternative has been established almost a decade later.

 

A
s Secretary of Defense, I found myself named in a number of lawsuits. Many were frivolous.
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Others dealt with some of the thorniest issues in constitutional law and reached the Supreme Court of the United States.

One of those cases was decided on Thursday, June 29, 2006. I arrived at the Pentagon shortly After 6:30 that morning, as usual. In those quiet early hours, when the building's hallways were not yet buzzing with the twenty-five thousand men and women who worked there daily, I could take some time to try to catch up on the mountain of work and reading materials that flowed through the office. Prime Minister Junichiro Koizumi of Japan, an ebullient leader with a flamboyant persona and a passion for all things Elvis Presley, was arriving in town for meetings with President Bush. I liked Koizumi, as did the President. At 9:00 a.m. Joyce met me at the White House for the arrival ceremony for the prime minister on the South Lawn. Afterward, I joined the President in the Oval Office for the two-hour meeting with Koizumi on a range of issues in one of America's most important bilateral relationships.

Meanwhile, a block east of the Capitol building, TV cameras and reporters were gathering to receive the latest set of Supreme Court opinions. At 10:15 a.m., the court chambers fell silent as Justice John Paul Stevens began to read the holding in
Hamdan v. Rumsfeld
.
¹⁰
His opinion had split the court 5 to 3. The case, involving a Yemeni detainee at Guantánamo Bay named Salim Hamdan, had worked its way through federal district and appellate courts and had reached the Supreme Court.
^†
Though some journalists and others tried to belittle Hamdan's importance by referring to him as “bin Laden's driver,” intelligence officials considered him much more than that. He was thought to be a significant facilitator for senior al-Qaida leadership and an arms trafficker. Hamdan was caught in Afghanistan with a surface-to-air missile in his car trunk—odd cargo for a mere chauffeur of little importance. Hamdan had filed a habeas corpus petition, the means by which a prisoner can challenge the basis of his incarceration. Given that Hamdan was neither an American citizen nor apprehended on U.S. soil, I thought his was a creative filing to say the least. In his lawsuit, Hamdan had identified several officials as defendants in addition to me, including President Bush and the military commander at Guantánamo, Brigadier General Jay Hood. As the first named defendant, I earned the dubious distinction of being identified in the shorthand title of the case:
Hamdan v. Rumsfeld
.

The Bush administration's decisions to hold detainees without automatic access to the U.S. court system, to classify them as unlawful or unprivileged enemy combatants (not legally entitled to the POW privileges of lawful combatants), and to use military commissions were based on more than two centuries of American precedents. One was the 1942 case that upheld the constitutionality of FDR's use of military commissions.
¹¹
It made clear that individuals engaged in armed hostilities against the United States and who do not themselves obey the laws of war with respect to uniforms, command structure, and the targeting of civilians, are “unlawful combatants” who can be tried and punished in military—rather than civilian—courts.
¹²
In another case, the Supreme Court held that German nationals who were tried abroad by military commissions were not entitled to American judicial review.
¹³
The Court concluded that it did not have jurisdiction to consider claims by alien enemies not held on U.S. soil.

But as we soon learned, that long-established and well-regarded legal foundation could not withstand the startling earthquake produced when American federal courts began to shift the legal ground regarding detainees and the laws of war. In 2004, the Supreme Court began handing down its first war on terror decisions.
^*
They were not total defeats for the government's positions, but they reflected a new and unprecedented judicial willingness to reverse a president's wartime detention judgments.

As we departed the President's meeting with Prime Minister Koizumi that June morning in 2006, an aide told me that the U.S. government had lost its argument in
Hamdan
. No one seemed to be able to explain what exactly that meant, but it was clear it wasn't good. To me it sounded like I would be the first secretary of defense in history to lose a case in the Supreme Court of the United States to a terrorist. As we later learned, six of the nine justices issued separate written opinions on the case.
¹⁴
After several senior attorneys had sorted through the main opinion, the two concurring and the three dissenting opinions, they concluded that the case amounted to a staggering blow to the military commission system, as well as to the administration's legal positions on which wartime detention operations depended.