As a member of the National Security Council, I was made aware of the Agency's interrogation program-but as I now understand it, it was not until well After it had been initiated, and well After the senior members of the congressional intelligence committees in Congress, including future Speaker of the House Nancy Pelosi and others had been briefed. Along with my colleagues on the NSC I learned that the CIA had developed a series of enhanced techniques to achieve Zubaydah's cooperation. The CIA's program employed some of the interrogation methods that I had rejected for use in the Defense Department. We were told the Justice Department had determined that the interrogation techniques the CIA was using-up to and including waterboarding-were legal. Along with my colleagues on the NSC I learned that the CIA had developed a series of enhanced techniques to achieve Zubaydah's cooperation. The CIA's program employed some of the interrogation methods that I had rejected for use in the Defense Department. We were told the Justice Department had determined that the interrogation techniques the CIA was using-up to and including waterboarding-were legal.

Though the CIA utilized waterboarding and other techniques that I rejected in the Department of Defense, I saw no contradiction. Some techniques that might be appropriate for a very small number of high-value terrorists by a highly trained and professional group of CIA interrogators in a controlled environment were not appropriate for use by military personnel. It would have been unwise to blur the difference between two distinct inst.i.tutions. Tight limits on interrogation, such as those contained in the Army Field Manual, are appropriate for the U.S. military. Tens of thousands of detainees pa.s.sed through U.S military custody in Afghanistan and Iraq. Conversely, the CIA was dealing with a small number of key terrorist leaders believed to be senior al-Qaida operatives. CIA personnel were trained to use enhanced interrogation tactics in carefully monitored situations. We didn't want young military personnel making decisions on interrogating high-level al-Qaida terrorists.33 It was for precisely this reason-the difference between the CIA interrogation program and the military's detention operations at Guantanamo Bay and in Iraq and Afghanistan-that in the summer of 2006 I became a thorn in the administration's side. By then the Washington Post Washington Post had published the news, obtained by a leak, that the CIA was holding senior al-Qaida terrorists in secret prisons around the world. had published the news, obtained by a leak, that the CIA was holding senior al-Qaida terrorists in secret prisons around the world.34 In response to the disclosures and the resulting press furor, the CIA and the President's White House staff wanted to announce that the al-Qaida terrorists were being sent to Gitmo. I argued strongly against the proposed transfer. In response to the disclosures and the resulting press furor, the CIA and the President's White House staff wanted to announce that the al-Qaida terrorists were being sent to Gitmo. I argued strongly against the proposed transfer.

There was some logic to the idea of the move. The CIA would be able to close the prisons it had operated in friendly countries abroad-countries that were less than enthusiastic that their cooperation might become public. Increasing pressure from the federal courts and evolving interpretations of international law also threatened the CIA program if it remained in the shadows, a legal limbo that understandably made many in intelligence agencies uncomfortable. And finally, the CIA had no better place to put them.

Still, I believed the Defense Department was in the worst possible position to deal with the public aspects of the CIA's handling of high-value al-Qaida detainees. We had not been involved in their detention program and would not be able to defend it with the persuasiveness required. Further, the Defense Department was particularly ill suited to take on another burden After the abuse at the Abu Ghraib prison in Iraq. The military men and women at Guantanamo Bay already were being criticized in the media and in Congress for allegations of abuse (most of which were proven false). I was convinced the military would be damaged further by allegations of detainee mistreatment if the CIA program became conflated with the Department of Defense's detention operations.

I asked Steve Cambone, the Defense Department's undersecretary for intelligence, to be the bearer of the news the White House did not want to hear. It was one of many thankless tasks I a.s.signed to Cambone. Steve had an air of reserved intelligence that, when combined with his physical height, could make him seem intimidating to those who did not know his ready wit and warm personal loyalty. But for a problem like this one, it wasn't a bad thing to have a representative from DoD whom people took seriously. We argued that there needed to be clear lines between the CIA program and the Defense Department program. Critics would ignore the important differences if both the military and CIA detainees were located at Guantanamo.

But the momentum behind the decision was too strong to overcome, even for someone as persistent as Cambone. Though he held the line for months, by late summer it became clear the President favored the transfer. On September 6, 2006, Bush announced that fourteen high-value CIA detainees were on their way to Guantanamo Bay, where they would be confined on the military base run by the Defense Department. In the years that followed, the controversy over the treatment of the CIA detainees only escalated. So did confusion about the many differences between the legal authorities, standards, and operations of the CIA and the Defense Department.

If you ask most Americans how many detainees were waterboarded at Guantanamo, the likely answers range from three to hundreds. The correct answer is zero. When military interrogators at Guantanamo 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 Guantanamo 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. 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 a.s.signment 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.

CHAPTER 40

Law in a Time of War.

Before 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 Cole in 2000, it made it even more difficult to track down the enemy. For example, in 1998, within days After doc.u.ments 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. in 2000, it made it even more difficult to track down the enemy. For example, in 1998, within days After doc.u.ments 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. 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 circ.u.mstances 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. 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 n.a.z.i 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 ash.o.r.e 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. 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 a.s.sume the worst. My longtime friend and Its purpose was to establish only the framework of the military commissions, which led some critics to a.s.sume the worst. My longtime friend and New York Times New York Times columnist Bill Safire criticized the proposed tribunals as "kangaroo courts." 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. 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 a.s.sembled 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 n.a.z.i 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 const.i.tutional scholars," the New York Times 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." 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 rea.s.sured by Defense Secretary Don Rumsfeld's 'refinement' of the hasty order." Bill Safire also wrote that he was "somewhat rea.s.sured 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 a.s.sault in the courts, in the Congress, and in the press. Yet no preferable alternative has been established almost a decade later.

As Secretary of Defense, I found myself named in a number of lawsuits. Many were frivolous.* Others dealt with some of the th.o.r.n.i.e.s.t issues in const.i.tutional law and reached the Supreme Court of the United States. Others dealt with some of the th.o.r.n.i.e.s.t issues in const.i.tutional 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 j.a.pan, an ebullient leader with a flamboyant persona and a pa.s.sion 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 Hamdan v. Rumsfeld.10 His opinion had split the court 5 to 3. The case, involving a Yemeni detainee at Guantanamo Bay named Salim Hamdan, had worked its way through federal district and appellate courts and had reached the Supreme Court. His opinion had split the court 5 to 3. The case, involving a Yemeni detainee at Guantanamo 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 pet.i.tion, 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 Guantanamo, Brigadier General Jay Hood. As the first named defendant, I earned the dubious distinction of being identified in the shorthand t.i.tle of the case: 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 pet.i.tion, 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 Guantanamo, Brigadier General Jay Hood. As the first named defendant, I earned the dubious distinction of being identified in the shorthand t.i.tle of the case: Hamdan v. Rumsfeld Hamdan v. Rumsfeld.

The Bush administration's decisions to hold detainees without automatic access to the U.S. court system, to cla.s.sify them as unlawful or unprivileged enemy combatants (not legally ent.i.tled 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 const.i.tutionality 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. 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 ent.i.tled to American judicial review. In another case, the Supreme Court held that German nationals who were tried abroad by military commissions were not ent.i.tled 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. 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. 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 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. 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.

In one of the stranger portions of the Hamdan 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." 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. 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 Hamdan, I agreed fully that there should be a proper standard of care for all detained enemy combatants, even those not technically ent.i.tled 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 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. 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 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. 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. 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 pa.s.sed into law by Congress. The results were evidently good enough for it to become a gold standard; it was even pa.s.sed into law by Congress.

The Supreme Court's invalidation of the military commission system necessitated congressional action. Some four months After the Hamdan Hamdan decision, Congress pa.s.sed 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. decision, Congress pa.s.sed 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.*

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 const.i.tutionality. 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 a.s.serted, ... would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States. Moreover, we could expect no reciprocity for placing the litigation weapon in unrestrained enemy hands.19 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.

As 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 inst.i.tutions 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 hara.s.s American officials-military and civilian-and to score ideological victories.20 Each legal action is a thread. The c.u.mulative 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 inst.i.tutions-our very respect for law-to make us vulnerable to enemies who have nothing but contempt for those very instincts and inst.i.tutions. Each legal action is a thread. The c.u.mulative 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 inst.i.tutions-our very respect for law-to make us vulnerable to enemies who have nothing but contempt for those very instincts and inst.i.tutions.

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 ent.i.tled 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 a.s.semble 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 n.o.bel 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. This dedicated public servant and n.o.bel 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 pa.s.sed 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 a.s.serts 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 a.s.sertion of a hostile foreign critic perched on a judicial bench, or at a university, or within an activist political organization. But we knew that what was claimed as international law was sometimes nothing other than the a.s.sertion 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 hara.s.s 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 a.s.serted, 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. 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.

Belgium 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. Const.i.tution. 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.

Even with Bolton's support, I was concerned that our government was not paying enough attention to this issue. With the help of Jack Goldsmith,* an expert on international law then working in the Defense Department general counsel's office, we prepared a memo in April 2003 that I sent to Cheney, Powell, Ashcroft, Rice, Card, and Gonzales, observing: an expert on international law then working in the Defense Department general counsel's office, we prepared a memo in April 2003 that I sent to Cheney, Powell, Ashcroft, Rice, Card, and Gonzales, observing: Last August I urged us to address several disturbing trends in international law, including the ICC, universal jurisdiction prosecutions, and the broader judicialization [sic] of international politics and warfare.I am concerned that this deliberation is not proceeding with appropriate urgency.There may be a sense that this is "just Henry Kissinger's problem." This is a serious miscalculation. Universal jurisdiction prosecutions are expanding in Europe and elsewhere. The purported content of international criminal law is growing in various unfavorable ways. Just a few weeks ago, a complaint was filed in Belgium against senior U.S. officials growing out of Operation Desert Storm. It is only a matter of time before there is an attempted prosecution of a U.S. official.There may be a sense that these issues should be shelved during the Iraq matter. On the contrary, the prospect of controversial war should alert us to what all U.S. officials may face.Our strategy with respect to the ICC seems to be getting nowhere. We have only a handful of Article 98 agreements, and no realistic prospect for significantly more in the near future. Meanwhile, the ICC proceeds apace.I believe we must quickly develop a campaign to discredit and counter these trends. Attached is a proposal for a more robust strategy to deal with these issues. I suggest we discuss the matter soon.24 The fact that the United States was not a party to the treaty and had unsigned it was not enough to protect American servicemen and-women. I had launched a global campaign to obtain commitments-in the form of what were called Article 98 agreements-from over one hundred nations that they would agree to never surrender Americans into ICC custody.* Defending those who have volunteered to serve our country in uniform and in our intelligence services is not only the right thing to do in principle, it is necessary to protect America's sovereignty-our nation's right to self-governance. Defending those who have volunteered to serve our country in uniform and in our intelligence services is not only the right thing to do in principle, it is necessary to protect America's sovereignty-our nation's right to self-governance.

I think of sovereignty in concrete terms. It is a matter of freedom and autonomy. It means that we Americans control our destiny and are not ruled from abroad by officials we did not elect and courts we cannot hold accountable. Sovereignty is integrally tied to democracy, the right of Americans to choose their own leaders, to make their own laws, to limit the powers of government, and to enjoy due process of law.

If unchecked, the growing international judicial encroachments on our sovereignty will encourage an unfortunate and harmful trend toward American isolationism. If U.S. troops and officials can increasingly be tried in foreign courts, many Americans may well decide that sending our military on humanitarian missions, aiding allies, or defending our interests abroad is not worth the risk. Victims of tsunamis and earthquakes overseas could no longer depend on American a.s.sistance. Would-be aggressors could take advantage of our reluctance to use our military forces. Lawfare's greatest casualty will likely not be any one American official or serviceman. The greatest casualty will be the loss of America's willingness to use our military as a force for good around the world.

CHAPTER 41

The Road Not Traveled.

"The only exact science known to man is hindsight," John Reid, the British secretary of state for defense, commented in September 2005. He had a good point, though I might suggest that not even hindsight is an exact science, as demonstrated by any number of memoirs and books that explain the same events so differently. I found this myself when I started to subject my own memories to rigorous fact-checking in the process of writing this book.

Looking back, I see there are things the administration could have done differently and better with respect to wartime detention. As the administration grappled with these difficult questions, there were remarkably few interagency meetings devoted to detainee policy. In previous administrations the deputies committee, the highest subcabinet interagency forum on national security matters, regularly helped iron out differences of views among agencies. The princ.i.p.als committee, the members of the National Security Council, excepting the President, could then meet and prepare matters-including any unresolved interagency issues-for his consideration. I suggested without success that National Security Adviser Rice chair deputies meetings on important subjects, to give the group some heft and direction. Deputy Secretary Wolfowitz eventually encouraged a group of senior officials from across the government to hold ad hoc deputies-level meetings to address detainee-related questions outside the formal NSC system.

When princ.i.p.als committee meetings were held on detainee policy, little, if anything, was resolved. Instead, the meetings became opportunities to discuss the negative media coverage, such as that about Guantanamo, rather than to propose constructive alternatives and move issues up to the President for decision.1 The Defense Department was largely left to deal with the barrage of negative press on its own. With the exceptions of President Bush and Vice President Cheney, others showed scant interest in helping defend the administration detention policy. We needed a.s.sistance but received little from the White House communications team. The gap between the reality of our policies and the mythology about them yawned wider and wider in the absence of a concerted effort to confront major untruths as they were continuously repeated.

It was not until January 2005-one year After CENTCOM brought the abuses at Abu Ghraib to light, and more than three years After the President had signed his November 2001 military order a.s.signing the detainee mission to the Defense Department-that the National Security Council staffbegan to treat the subject of detainees as an administration issue. By that time the President had been reelected and had realigned his National Security Council.

During the President's first term, one problem that resulted from the lack of interagency policy review on this issue was that key policy makers saw detainee questions as essentially legal issues rather than policy matters. Perhaps somewhat paradoxically, given my reluctance to cede control to lawyers over policies such as rules of engagement, I too was guilty of thinking that the legal questions were preeminent. From the first days of combat operations in Afghanistan, I tended to treat detainee matters as something to be sorted out among knowledgeable executive branch lawyers, with little involvement from the policy makers, including me.

The military commissions and other detainee-management matters would have benefited from greater consideration of policy, politics, and diplomacy. That was less likely to happen if the issues were handled as legal matters in interagency meetings of lawyers, who were often not accompanied by policy officials. Legal advice is critical in defining boundaries, to be sure, but it should not be determinative, in that within the legal boundaries there is often a range of possible policy options.

The overly legal focus on wartime detention issues had consequences outside of the executive branch. I now believe that if we had directly engaged Congress from the outset and solicited its public involvement in crafting wartime detention legislation, we might have had a richer debate, and then implemented policies that would have commanded greater support at home and abroad. Of course, Congress, at its initiative, also could have become involved in these discussions from the outset, but the relevant players declined to do so.

Though early legislation on wartime detention would probably not have headed off all the problems, it might have helped. I say this even though I doubt the practices devised in partnership with Congress would have been notably different from those that the administration actually adopted and implemented. But by involving Congress, the administration might have taken into account a broader array of considerations, and at least been inoculated against the charge that it was acting in an unchecked and unlawful fashion. At the minimum, it would have built some defenses against many of the rhetorical attacks directed at essential efforts in the struggle against Islamist extremists. It would have also made clearer that the detainees are not just the Pentagon's problem or the President's problem, but the country's problem-indeed, a problem for the civilized world.

The way the administration reached decisions on detainee policy was generally consistent with a predisposition to protect the historic powers of the presidency. There was good reason to be concerned about preserving the commander in chief's const.i.tutional national security and war powers. After 9/11, calls for greater security through prompt action came from every quarter of the country. By const.i.tutional design, Congress is intended to be slow-to promote deliberation and the weeding out of ideas that may be popular for a moment, but imprudent. Congress was not intended or organized to meet the demands of operational decision making in a crisis. America's founding fathers knew what they were doing when they put the powers to conduct war in the hands of a single commander in chief, not those of a committee composed of the 535 members of the national legislature.

With these thoughts in mind, the administration-especially the lawyers-did not favor asking for legislation in areas in which the president already had robust const.i.tutional authorities because it would set precedents that permanently limited the authority of future presidents. I shared that concern, but it may not have taken fully into account the broader picture-the complete set of strategic considerations of a president fighting a protracted, unprecedented, and unfamiliar war for which he would need sustained domestic and international support.

Vice President Cheney appreciated the importance of preserving the President's powers as commander in chief, especially when they were under a.s.sault for short-term political reasons. Cheney and his chief legal counsel and later chief of staff, David Addington, supported by senior lawyers from around the government, helped guard presidential authority as a matter of principle. Looking back, it is possible that the weight given to it may have contributed to an outcome the administration hoped to avoid: encroachment on the president's powers as commander in chief by the Congress and, particularly, by the judiciary.2 Both the Congress and the judiciary now arrogate to themselves more rights to supervise the president's national security decisions than ever before in our country's history. Both the Congress and the judiciary now arrogate to themselves more rights to supervise the president's national security decisions than ever before in our country's history.

The tension among the three branches of our federal government goes back to the founding days of the Republic, when Alexander Hamilton and James Madison argued out the merits of a "vigorous Executive" in the Federalist Papers.3 The debate has come up time and again-for example, during the Civil War and World War II as Presidents Lincoln and Roosevelt put the nation on war footings by exercising their powers as commander in chief expansively. The debate has come up time and again-for example, during the Civil War and World War II as Presidents Lincoln and Roosevelt put the nation on war footings by exercising their powers as commander in chief expansively.

Cheney and I had witnessed the era of Vietnam and Watergate, during the fevered debate over the so-called imperial presidency. Late in the Vietnam War, Congress pa.s.sed the 1973 War Powers Resolution, which declared that American presidents could no longer send U.S. forces into combat without express authorization by Congress, except in exigent circ.u.mstances. Cheney and I dealt with this congressional backlash in the Ford White House. In the early days of the Ford administration, Bryce Harlow, the savvy White House liaison to Congress, former Eisenhower aide, and a friend, told me-and I am paraphrasing from memory: The steady pressure by Congress and the courts is to reduce executive authority. It is inexorable, inevitable, and historical. Resolve that when you leave the White House, leave it with the same authorities it had when you came. Do not contribute to the erosion of presidential power on your watch.

Harlow's words left an impression on me, and, I suspect, on Cheney.

The executive branch lawyers' view of presidential prerogatives in national security, with a proper concern about congressional and judicial infringement, may well be consistent with the Founding Fathers' intentions. Nonetheless, the role of the federal judiciary has changed significantly over the past fifty years. Since World War II, federal courts have become involved in policy issues ranging from abortion and major league baseball to gun rights and campaign financing. In World War II, the United States detained four hundred thousand German and Italian prisoners of war in camps across the country without any judicial review. Out of the handful of habeas corpus pet.i.tions from those POWs, no court in the United States granted a single one. But as Jim Haynes pointed out in 2008, "Today, we have less than 300 unlawful combatants detained at Guantanamo Bay, Cuba, and 246 ongoing habeas cases to go with them."4 If it weren't obvious in 2001 that long-established legal precedents, even from the Supreme Court, were no longer reliable guideposts in times of legal activism, it should be sufficiently clear now. One of the finest legal minds in the nation, Solicitor General Ted Olson, advised White House lawyers in the early years of the George W. Bush administration that their view of executive power might not fare well with the twenty-first-century Supreme Court. Had the administration heeded that caution and worked with Congress early on to craft acceptable legislation governing twenty-first-century detainee policies, the courts might-and I stress might-have been somewhat less inclined to a.s.sume the role that they now have seized-and presidential powers in wartime might as a result be stronger than they are today.

While the legal justifications behind the decisions and policies we made on detainee affairs were sound and firmly rooted in precedent, there is little doubt that they grew increasingly out of sync with the mood of the country. The intense emotions of 9/11-insecurity and fear, offset by outrage and a resolve to confront the terrorists-eased. Increasingly distant memories of that day were overtaken by new, skewed images of detention-photographs from Abu Ghraib and an avalanche of largely unreb.u.t.ted misinformation about Guantanamo Bay. Detainees came to be viewed by some in Congress, the news media, and the public less as dangerous terrorists caught on the battlefield and possible sources of lifesaving information about our enemies, but more as victims of abuse deprived of their legal rights.

When the President invoked wartime powers, some questioned whether we were really in fact at war. As I freely admitted and made a point of saying publicly in the early days After 9/11, the challenge we faced from violent Islamist extremists was profoundly different from the wars Americans had fought in the past. It wasn't a war in the traditional way most Americans understood the concept. The struggle against the terrorists could not be discussed in terms familiar to Americans: battles and fronts, advances and surrenders. The war did not have a distinct beginning and it would not have a clear ending. We knew there would be no peace treaty that would bring the conflict to a ceremonious close. The war's duration was indefinite.

I knew that holding people indefinitely would become increasingly controversial, especially when indefinitely looked like forever to some people. I didn't want our country to hold a single detainee one day longer than necessary. I knew of no good alternative, except to keep moving each individual detainee's case toward resolution by military commission or transfer to their home nations, while examining and reexamining why we were holding them. The American people would need to understand the complexities of the problem and why neither our domestic criminal justice system nor the Uniform Code of Military Justice was adequate for the new challenges.

Our nation's campaign against Islamist extremists would be, as I wrote to the President in a memo only days After 9/11, "a marathon, not a sprint."5 We were under no illusions that the terrorists would surrender After a few days of bombing in Afghanistan. If the war was going to be the work of a generation, that argued for developing broad and sustainable national and congressional support through a skillful public communications effort, consultation, and a proactive legislative strategy. There was at least temporary bipartisanship at work in the immediate Aftermath of 9/11, which might have been leveraged better. Members of both parties were demanding in unison that the President take all the actions necessary to prevent another attack. Congress worked cooperatively-and reasonably quickly-with the President on wartime spending, the creation of new governmental organizations and posts, the Patriot Act, and other matters. We were under no illusions that the terrorists would surrender After a few days of bombing in Afghanistan. If the war was going to be the work of a generation, that argued for developing broad and sustainable national and congressional support through a skillful public communications effort, consultation, and a proactive legislative strategy. There was at least temporary bipartisanship at work in the immediate Aftermath of 9/11, which might have been leveraged better. Members of both parties were demanding in unison that the President take all the actions necessary to prevent another attack. Congress worked cooperatively-and reasonably quickly-with the President on wartime spending, the creation of new governmental organizations and posts, the Patriot Act, and other matters.* But on wartime detention, that was not the case-it took a series of Supreme Court decisions five years into the Bush administration to provoke interest in the issue. But on wartime detention, that was not the case-it took a series of Supreme Court decisions five years into the Bush administration to provoke interest in the issue.

As a former member of Congress, I might have been better attuned to the need for congressional buy in on such potentially difficult and controversial matters. More than a year before the Supreme Court's decision in Hamdan Hamdan forced the administration to go to Congress for detainee legislation, I pushed the Defense Department to reach out to Congress. In March 2005, I sent a memo to Jim Haynes and the incoming deputy secretary of defense, Gordon England-who was replacing Paul Wolfowitz, then leaving to head the World Bank. England brought with him a management background from business and as secretary of the Navy and then deputy secretary at the Department of Homeland Security. England also had good political instincts. He believed, as I did, that our detention policies would be subject to further scrutiny and criticism absent congressional involvement. As I wrote to Haynes and England in my memo: forced the administration to go to Congress for detainee legislation, I pushed the Defense Department to reach out to Congress. In March 2005, I sent a memo to Jim Haynes and the incoming deputy secretary of defense, Gordon England-who was replacing Paul Wolfowitz, then leaving to head the World Bank. England brought with him a management background from business and as secretary of the Navy and then deputy secretary at the Department of Homeland Security. England also had good political instincts. He believed, as I did, that our detention policies would be subject to further scrutiny and criticism absent congressional involvement. As I wrote to Haynes and England in my memo: I wonder if we ought to consider proposing to the White House that they propose legisla