Known and Unknown (72 page)

In one of the stranger portions of the
Hamdan
opinion, a majority of justices also concluded that Common Article 3 of the Geneva Conventions applied to the conflict with al-Qaida. Common Article 3 established rules for detainees in armed conflicts “not of an international character.”
¹⁵
I was informed that the phrase had long been understood to refer to civil wars fought within the territory of a single state. In early 2002, administration lawyers had advised the President that Common Article 3 did not apply to the global conflict with al-Qaida. Now, Common Article 3 was deemed by the Supreme Court to apply to that conflict, even though al-Qaida is an organization, not a state, and was not a party to the Geneva Conventions, and even though the conflict is of an international character.

Though I didn't follow the novel reasoning of the Supreme Court majority in
Hamdan
, I agreed fully that there should be a proper standard of care for all detained enemy combatants, even those not technically entitled to POW privileges. Had a standard beyond humane treatment, such as Common Article 3, been established as a matter of policy earlier, the administration might have avoided the sweeping setback that
Hamdan
represented. It is possible that we would have come to a better outcome had we approached the issue as a policy matter to be decided by policy makers with legal advice, rather than viewing it as a legal matter to be determined by lawyers.

I had already begun to reorganize the Defense Department to reflect this concern After the abuse at Abu Ghraib came to light, by creating a senior policy position and a unit on the Joint Staffsolely responsible for detainee affairs. I also asked a former Democratic congressman from Texas and future secretary of the Army, Pete Geren, and Army Lieutenant General Michael Maples to head up a task force to ensure we were better prepared to handle detainee issues moving forward. They carefully reviewed the reforms and recommendations suggested in twelve independent reports on detention operations, and the Department proceeded to implement over four hundred of them. After the
Hamdan
decision, the Defense Department informed all military personnel that Common Article 3 would apply to the country's war against terrorist organizations. We issued Defense Department Directive 2310. 01E, which incorporated Common Article 3 of the Geneva Conventions verbatim.
¹⁶
The Army Field Manual on interrogation was rewritten to ensure that the standards were compliant with the Geneva Conventions. I knew how important the field manual was and insisted that senior officials in the Department read it carefully and submit edits where they didn't agree.
¹⁷
The results were evidently good enough for it to become a gold standard; it was even passed into law by Congress.

The Supreme Court's invalidation of the military commission system necessitated congressional action. Some four months After the
Hamdan
decision, Congress passed the Military Commissions Act of 2006. The legislation, signed into law by the President, included a statutory definition of “unlawful enemy combatant,” established military commissions to try foreign nationals who met that definition, set forth processes and procedures for the commissions, and created various avenues for judicial review.
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American courts had been historically reluctant to second-guess the President and the Congress regarding the use of military force—even during controversial conflicts. Throughout America's involvement in Vietnam, for example, the Supreme Court refused to consider challenges to the war's constitutionality. The Supreme Court had been especially cautious when it came to the detention and trial of foreign enemies overseas. In the 1950 case of the Germans tried by military commission, Justice Robert Jackson, who had served as Franklin Roosevelt's attorney general and as the chief prosecutor at the Nuremburg trials, explained the reasons for this sensible policy. Jackson wrote that extending to our enemies the right to judicial review in American courts of law “would hamper the war effort and bring aid and comfort to the enemy.” Such trials, Justice Jackson presciently asserted,

Jackson's reasoning, which prevailed in 1950, reflected what I believed. But by 2008, Jackson's thoughtful predictions were brushed aside by judges and an almost hysterical campaign by NGOs, detainee lawyers, and academics. Their arguments are impractical as a security matter, inverted as a moral matter, and unprecedented as a legal matter. By proving persuasive to many, even to some members of Congress and some judges, including a bare majority of the Supreme Court, these activists have successfully placed “the litigation weapon” in the hands of our enemies.

 

A
s never before in history, today lawyers and legal considerations pervade every aspect of U.S. military operations. Besides contending with enemy bullets and bombs, the men and women in our nation's military and intelligence services must also navigate legal traps set by our enemies, by some of our fellow citizens, by some foreigners, and even by some members of Congress and officials at international institutions such as the United Nations. The rules, regulations, and consequences in legal venues have to be and are taken into account on every corner of the battlefield. American military personnel have found themselves named in lawsuits across Europe and in the United States. The mere threat of lawsuits and legal charges effectively bullies American decision makers, alters their actions, intimidates our security forces, and limits our country's ability to gather intelligence and defend the American people. This is a new kind of asymmetric war waged by our enemies—“lawfare.”

Lawfare uses international and domestic legal claims, regardless of their factual basis, to win public support to harass American officials—military and civilian—and to score ideological victories.
²⁰
Each legal action is a thread. The cumulative effect binds the American Gulliver. Enemies who cannot score military victories can nevertheless impair our defenses by litigating warfare. Lawfare is particularly effective against the United States, because it exploits America's laudable reverence for the law and uses our own finest instincts and institutions—our very respect for law—to make us vulnerable to enemies who have nothing but contempt for those very instincts and institutions.

We cannot yet know what the full consequences of lawfare will be, but the trend is troubling. At home, judges—not elected representatives in Congress or in the executive branch—increasingly determine how a president can operate during wartime against our nation's enemies. Terrorists have been given legal privileges and protections they are not entitled to by any standard. They violate nearly every law of war, yet our courts now perversely award terrorists more rights than any of our traditional military enemies have had throughout our country's history. As a result, whenever and wherever American military personnel capture suspected terrorists, they must assemble evidence and facts to be ready to defend their actions, not only up the military chain of command but in courts of law, in addition to defending themselves in combat.

I received my first lesson in lawfare from a friend who had several close encounters with its spear point. In 2001, Henry Kissinger told me that when he traveled abroad he still faced threats of legal action for his work as secretary of state in the Nixon and Ford administrations three decades After the fact. Various critics have alleged he was complicit in war crimes and other offenses from Southeast Asia to South America.
²¹
This dedicated public servant and Nobel laureate has had to live with periodic threats of arrest resulting from the action of some rogue magistrate or grandstanding prosecutor—not in the nations of America's enemies, but in Europe, in countries with whom the United States is allied.

I came to appreciate keenly the dangers of lawfare during my second tenure as secretary of defense. In the spring of 2003, General Franks was named in a lawsuit brought before a Belgian court for his role in the Iraq war. The Belgian parliament had passed a law in the 1990s giving their nation's courts the jurisdiction to try war crimes, genocide, and other crimes against humanity wherever they were committed in the world. This concept of universal jurisdiction asserts that any court, anywhere in the world, could put American citizens—military and civilian—on trial if the alleged offense is described as a violation of international law.
^*
But we knew that what was claimed as international law was sometimes nothing other than the assertion of a hostile foreign critic perched on a judicial bench, or at a university, or within an activist political organization.
^*

Someone like General Franks, even After he retired from uniform, could be arrested and hauled into a Belgian court at any time. I realized something else as troubling: Any American on Belgian soil was vulnerable to criminal prosecutions—prosecutions that easily could be motivated by nothing more than opposition to U.S. government policy. Hundreds of U.S. military personnel were stationed at NATO headquarters, including the American supreme allied commander and his staff. Thousands more American servicemen and-women transit through Belgium every year, making them ripe candidates for those wishing to harass them with lawsuits and arrest warrants alleging war crimes.

It was one thing if the Belgian government wished to express opposition to the war; it was quite another for their judges to be able to haul American military personnel into their courts for what would amount to little more than political show trials. Belgium's power to do this infringed on American democracy, by subordinating our government—our officials and our country's policies—to a foreign government or organization that is unaccountable to the American people. The more I considered the Belgian law, the angrier I became.

At a NATO defense ministers meeting on June 12, 2003, I made my views known. I walked up to Belgium's minister of defense, Andre Flahaut, and asked to see him in a side room.

“I need to speak with you for a moment,” I said.

Flahaut, a Socialist member of the Belgian parliament, and his left-leaning government were frequent critics of the United States. It was impossible to imagine them being overly concerned about grandstanding Belgian lawyers lodging suits against American military personnel and officials.

In language that diplomats might describe as a “frank and full exchange,” I raised my concerns about the Belgian law. I told Flahaut that I believed it would be used by judges to target U.S. intelligence and military personnel, not dictators guilty of actual war crimes. I didn't recall the Belgians making any effort, for example, to arrest and try Saddam Hussein.

The urgency in my tone was unmistakable, especially when I made what seemed an obvious point. The Belgian government was justifiably proud of serving as the headquarters of NATO, the world's oldest military alliance. But it was worth noting that the reason NATO was located in Brussels was because French President Charles De Gaulle had forced the alliance out of France in 1966. If Belgium was going to enforce a law that made its own territory similarly inhospitable to Americans, I asserted, there was no reason why we could not move NATO's headquarters again.

“It's perfectly possible to meet elsewhere,” I said to Flahaut and, later that day, to the press.
²³
There were plenty of other cities between Washington and Ankara.

Flahaut was counting on U.S. funding for a new NATO headquarters in Brussels. I added that American support would evaporate instantly absent a prompt shift in the Belgian government's position.

The difference in style between a Chicago-born American and a member of the European diplomatic corps was on full display in that conversation. From his demeanor I could tell he fully understood my point. Within two months of that conversation, the Belgian government repealed their law.

 

B
elgium was not alone in threatening American sovereignty with lawfare. The International Criminal Court (ICC) was proposed in the 1990s as a court for crimes against humanity, genocide, and systematic war crimes. By 2003, the ICC was being discussed as a possible forum to try U.S. military and civilian personnel involved in the Iraq war. The American military had objected strongly to the ICC treaty for these reasons in the 1990s, and the Clinton administration, as a result, refused to sign it until the last days of the President's term. Even After he signed it, Clinton did not submit it to the Senate, where its prospects for ratification—necessary for the treaty to become U.S. law—were bleak.

In the Defense Department we saw the International Criminal Court as a potential lawfare weapon against the United States. One aspect of the treaty that made the court so objectionable was that it would create offices for prosecutors who were effectively unaccountable—even if they acted politically or otherwise improperly—who could prosecute Americans without respecting their rights under the U.S. Constitution. With some State Department officials less than enthusiastic about the idea, I pushed for the U.S. government to “unsign” the treaty. In May 2002, a State official who agreed with our position on the issue, the tenacious undersecretary for arms control and international security John Bolton, formally announced that the United States would not ratify the treaty.