Known and Unknown (115 page)

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Only nation-states—not groups or individual actors—may ratify treaties.

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“Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information.”
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POWs must also be held “under conditions as favorable as those for the forces of the Detaining Power who are billeted in the same area.” Put a different way, housing POWs in individual cells—even with the luxuries of cable TV and individual bathrooms, as is done in many minimum security prisons across the United States—could be a violation of the Geneva Conventions. They must be housed as soldiers, in open barracks under the same conditions as U.S. forces and are entitled to wear their uniforms and badges of rank.
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If we transferred detainees to governments that were tolerant of terrorists, they might well return to fight against us. Some nations were unable to give us the necessary human rights assurances and might turn the detainees over to security forces, from which they might receive treatment unacceptable by our standards. Other nations would not agree to allow U.S. officials to visit with transferred detainees to ensure their humane treatment or interview them to obtain additional intelligence. Still, I didn't want to allow these issues to become excuses for not working the problem aggressively.

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Over the next three years we were able to reduce the number by a third, mostly by moving detainees to other nations. By the end of the Bush administration more than five hundred detainees had been moved out of detention at Guantánamo Bay.

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I approved interrogation techniques beyond the traditional Army Field Manual for one other detainee, Muhammed Ould Slahi, in August 2003, in accordance with an April 2003 working group proposal that had been approved by senior military and civilian DoD officials. Slahi had recruited some of the 9/11 al-Qaida pilots and been a key facilitator in the 2000 Millennium Plot. He tenaciously resisted questioning. After he was isolated from other detainees and interrogated, Slahi became one of the most valuable intelligence assets giving information on al-Qaida. Within weeks intelligence reports indicated that he began cooperating as a result of the interrogation plan and was providing large amounts of useful intelligence.

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Admiral Church has said, “I thought going in that I was going to find something different. I thought I was going to find the dots connecting…. You had pictures of Abu Ghraib. You had leaks beginning to show up about harsh interrogation techniques approved by fairly high levels in the office of the Secretary of Defense. And so…it occurred to me there's probably some pretty close linkage there. But the facts didn't bear that out. In fact, most of the abuse that we found had no relation to interrogation at all…. So I thought there would be a linkage, I didn't see it in terms of the abuse.”
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In April 2003 the service secretaries were: Thomas White, secretary of the Army; Hansford Johnson, acting secretary of the Navy; and James Roche, secretary of the Air Force. The members of the Joint Chiefs of Staff were: General Eric Shinseki (Army); General Michael Hagee (Marine Corps); Admiral Vern Clark (Navy); and General John Jumper (Air Force), plus the chairman, Dick Myers, and the vice chairman, Pete Pace.

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For a full discussion of the CIA's interrogation program, see Marc Thiessen's treatment of this issue in his book,
Courting Disaster
.

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According to an April 2009 Senate Select Committee on Intelligence report prepared by Democratic Senator Jay Rockefeller, and consistent with my recollection, Colin Powell and I were informed of the enhanced interrogation techniques on September 16, 2003—a year After members of Congress had received extensive briefings.
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In a June 2004 Judiciary Committee hearing, Democratic New York Senator Chuck Schumer put it much more starkly: “There are times when we all get in high dudgeon. We ought to be reasonable about this. I think there are probably very few people in this room or in America who would say that torture should never, ever be used, particularly if thousands of lives are at stake. Take the hypothetical: If we knew that there was a nuclear bomb hidden in an American city, and we believed that some kind of torture, fairly severe maybe, would give us a chance of finding that bomb before it went off, my guess is most Americans and most senators, maybe all, would say, Do what you have to do. So it is easy to sit back in the armchair and say that torture can never be used. But when you are in the foxhole, it is a very different deal. And I respect—I think we all respect—the fact that the president is in the foxhole every day.”

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I was not told precisely about the intelligence gained through the CIA program, but I believe General Michael Hayden, a four-star Air Force general who had been director of the National Security Agency, and in 2006 led the CIA. Hayden was not a partisan or a bomb thrower. He did not have to defend boldly and publicly a program that he had inherited. After a careful review, Hayden concluded, “I was convinced enough that I believed that we needed to keep this tool available.” Hayden, along with former federal judge and U.S. Attorney General Michael Mukasey, wrote that: “[F]ully half of the government's knowledge about the structure and activities of al Qaeda came from those interrogations.”
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The court proceedings against the so-called Blind Sheikh, Omar Abdel Rahman, who conspired to destroy the World Trade Center in 1993, revealed almost all the U.S. government knew about al-Qaida at the time. To comply with standard criminal procedures in U.S. courts, Andrew McCarthy, the chief prosecutor on that case, was required to turn over to defense attorneys a list of two hundred possible coconspirators. This told al-Qaida which of its members had been compromised and indicated where U.S. intelligence had gleaned its information. Bin Laden reportedly was reading the list several weeks later in Sudan. He must have been shaking his head in contemptuous wonder at how effectively the United States was assisting him in his deadly jihad.
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In 1780, George Washington tried a spy linked to Benedict Arnold before a board of inquiry that was essentially a military commission. The use of military commissions by the United States government continued through the Indian Wars and the Mexican-American War. During the Civil War, military commissions tried more than two thousand cases. During World War II and the months After, thousands of prisoners were tried before commissions in Germany and Japan for “terrorism, subversive activity, and violation of the laws of war.”
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One of the dubious privileges of serving in government in the information age is the increasing number of lawsuits in which public officials are named. Many are from folks looking to make a name or some money for themselves. One lawsuit alleged that the 9/11 attacks were a carefully orchestrated plot hatched at the highest levels of the U.S. government. It claimed that because I supposedly had foreknowledge that a plane was going to hit the Pentagon, I was legally liable for not ordering the evacuation of the building earlier. The many dozens of lawsuits are as ludicrous as they are time consuming and expensive.

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Future Chief Justice John Roberts was on the U.S. Court of Appeals for the District of Columbia Circuit when Hamdan's case came to the appellate level in July 2005. He and the two other judges on a three-judge panel (one a Clinton appointee) unanimously had held that military commissions were legitimate forums to try enemy combatants, because they were authorized by Congress as part of the Articles of War, which are now part of the Uniform Code of Military Justice. Moreover, the court also noted that al-Qaida and its members were not covered under the terms of the Geneva Conventions, and that even if they were, Hamdan could not as an individual enforce the treaty in U.S. courts. Roberts had to recuse himself in the Supreme Court decision because of his earlier involvement in the case. Five—a bare majority—of the members of the Court he would lead voted to overturn Roberts' earlier decision.

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That first case,
Hamdi v. Rumsfeld,
was brought on behalf of Yaser Esam Hamdi, a Saudi national born in Louisiana and, therefore, an American citizen. After his capture in Afghanistan he was transferred to the Navy brig in Norfolk, Virginia. His lawyers challenged the government's right to hold him as an enemy combatant without a civilian criminal charge. The Supreme Court upheld that right, but ruled that he must be given an administrative process to enable him to contest his designation as an enemy combatant. On the same day the Supreme Court decided Hamdi's case, it also issued a ruling in
Rasul v. Bush
. In
Rasul,
the Supreme Court overturned prior precedents and determined that the detainees in Guantánamo were in fact entitled access to American courts. Though we were not required to release any of the detainees because of these cases, the writing on the wall indicated that the Supreme Court would, for the first time, assert judicial authority over the Guantánamo base and the men held there, despite the facts that they were not U.S. citizens and that they were being held outside the United States.

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Despite Congress's effort to limit the courts' role in prosecuting the war on terror with the Military Commissions Act (MCA), the courts again would not agree, rejecting the Congress's right even to set practical limits on the enemy's access to courts in wartime. In the 2008 case of
Boumediene v. Bush
, the Supreme Court's majority invalidated much of the MCA—After the Court had suggested the administration and the Congress pass such a bill two years earlier in
Hamdan
. Dissenting Chief Justice Roberts aptly called the perplexing
Boumediene
decision a “constitutional bait and switch.”
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In 1998, a Spanish magistrate sought the extradition from Britain of Augusto Pinochet, Chile's former dictator, on charges of committing torture. Pinochet was visiting London for medical treatment. The underlying rationale was that Chile, though a modern, advanced democracy, was incapable of holding its own former officials to account, so therefore a random foreign court (which happened to be in Spain) could do so. Appallingly, Britain's House of Lords bowed to this notion of universal jurisdiction and approved Pinochet's transfer to Spain to stand trial. But before the transfer to Spain occurred, British officials allowed Pinochet to return to Chile to attend to his frail health.

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For example, according to one UN investigator, unmanned air strikes “may well violate international humanitarian law and international human rights law”—including strikes that reportedly have been personally approved by President Obama.
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After serving in the Department of Defense general counsel's office, Jack Goldsmith moved to the Justice Department, where he became assistant attorney general of the Office of Legal Counsel (OLC)—the attorney who advises the U.S. government as to what is lawful and what is not. He went on to write The
Terror Presidency: Law and Judgment Inside the Bush Administration,
a valuable history of the unprecedented legal challenges that faced the Bush administration.

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Article 98 refers to part of the Rome Statute, which established the International Criminal Court. The article allows those nations that are members of the ICC to enter into separate bilateral agreements with other nations that do not want their citizens subject to the ICC.

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However, it should be noted that even the Patriot Act, which passed with bipartisan support in Congress in 2001, became controversial as time went on. An increasing number of legislators seemed to see it and other national security subjects as potent political issues. It is not unreasonable to imagine that the same could well have happened with detainee legislation.

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In response to 9/11, I had worked with Congress to create the U.S. military's Northern Command as a headquarters in Colorado Springs to defend the American homeland. NORTHCOM's first combatant commander, Air Force General Ralph “Ed” Eberhart, stood up the command hub to assist in responding to security threats in the northern hemisphere. At the time it was established, we were most concerned about defending against terrorist attacks, but we also had anticipated the need to respond to natural disasters. With Katrina, the new headquarters faced its first major test.

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With congressional approval, I had created the new position of Assistant Secretary of Defense for Homeland Defense shortly After 9/11 for the purpose of managing the DoD response in the event of a similar terrorist attack or a catastrophic natural disaster in the United States.

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I thought a better approach to strengthening the intelligence community was not to create a duplicative bureaucracy in the DNI, as the 9/11 Commission had recommended, but to give the CIA director more authorities and support as the coordinating head of the U.S. intelligence community. In October 2004, Congressman Duncan Hunter asked chairman of the Joint Chiefs Dick Myers his opinion on the DNI. As a military officer who had obligations to Congress to give his independent views when asked, even if they differed from the administration's, Myers gave his opinion that the proposed DNI authorities over DoD-related intelligence agencies were problematic. When Andy Card found out about Myers' response, he called me and said, “General Myers' letter on the intel bill is going to cost the President the election.” His comment reflected a lack of understanding of senior military officers' obligations. It also reflected a lack of understanding of the political landscape: President Bush won reelection by a comfortable margin just two weeks later.
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