Lawmakers recognized the urgency of the threat and passed the PATRIOT Act 98 to 1 in the Senate and 357 to 66 in the House. I signed the bill into law on October 26, 2001. “We took time to look at it, we took time to read it, and we took time to remove those parts that were unconstitutional and those parts that would have actually hurt liberties of all Americans,” Democratic Senator Patrick Leahy of Vermont said. His Democratic colleague, Senator Chuck Schumer of New York, added, “If there is one key word that underscores this bill, it is ‘balance.’ In the new post–September 11 society that we face, balance is going to be a key word. … Balance and reason have prevailed.”
Over the next five years, the PATRIOT Act helped us break up potential terror cells in New York, Oregon, Virginia, and Florida. In one example, law enforcement and intelligence authorities shared information that led to the arrest of six Yemeni Americans in Lackawanna, New York, who had traveled to a terrorist training camp in Afghanistan and met with Osama bin Laden. Five pled guilty to providing material support to al Qaeda. The other admitted to unlawful transactions with al Qaeda.
Some claimed the Lackawanna Six and others we arrested were little more than “small-town dupes” with fanciful plots “who had no intention of carrying out terrorist acts.” I always wondered how the second-guessers could be so sure. After all, in August 2001, the idea that terrorists commanded from caves in Afghanistan would attack the World Trade Center and the Pentagon on U.S. commercial airplanes would have seemed pretty far-fetched. For me, the lesson of 9/11 was simple: Don’t take chances. When our law enforcement and intelligence professionals found people with ties to terrorist networks inside the United States, I would rather be criticized for taking them into custody too early than waiting until it was too late.
As the freshness of 9/11 faded, so did the overwhelming congressional support for the PATRIOT Act. Civil liberties advocates and commentators on the wings of both parties mischaracterized the law as a stand-in for everything they disliked about the war on terror. Key provisions of the PATRIOT Act, such as the authority to conduct roving wiretaps, were set to expire in 2005. I pushed hard for their re-authorization. As I told Congress, the threat had not expired, so the law shouldn’t, either.
Lawmakers delayed and complained. But when they finally held a vote, they renewed the PATRIOT Act by a margin of 89 to 10 in the Senate and 251 to 174 in the House. In early 2010, key provisions of the PATRIOT Act were authorized again by the heavily Democratic Congress.
My one regret about the PATRIOT Act is its name. When my administration sent the bill to Capitol Hill, it was initially called the Anti-Terrorism Act of 2001. Congress got clever and renamed it. As a result, there was an implication that people who opposed the law were unpatriotic. That was not what I intended. I should have pushed Congress to change the name of the bill before I signed it.
As part of the 9/11 investigation, we discovered that two hijackers who had infiltrated the United States, Khalid al Mihdhar and Nawaf al Hazmi, had communicated with al Qaeda leaders overseas more than a dozen times before the attack. My immediate question was: Why hadn’t we intercepted the calls? If we had heard what Mihdhar and Hazmi were saying, we might have been able to stop the attacks of 9/11.
The man with the answers was Mike Hayden, the three-star Air Force general who led the National Security Agency. If the intelligence community is the brains of national security, the NSA is part of the gray matter. The agency is filled with smart, techno-savvy experts and code breakers, along with analysts and linguists. Mike told me the NSA had the capability to monitor those al Qaeda phone calls into the United States before 9/11. But he didn’t have the legal authority to do it without receiving a court order, a process that could be difficult and slow.
With General Mike Hayden. White House/Eric Draper
The reason was a law called the Foreign Intelligence Surveillance Act. Written in 1978, before widespread use of cell phones and the Internet, FISA prohibited the NSA from monitoring communications involving people inside the United States without a warrant from the FISA court. For example, if a terrorist in Afghanistan contacted a terrorist in Pakistan, NSA could intercept their conversation. But if the same terrorist called someone in the United States, or sent an email that touched an American computer server, NSA had to apply for a court order.
That made no sense. Why should it be tougher to monitor al Qaeda communications with terrorists inside the United States than with their associates overseas? As Mike Hayden put it, we were “flying blind with no early warning system.”
After 9/11, we couldn’t afford to fly blind. If al Qaeda operatives were calling into or out of the United States, we damn sure needed to know who they were calling and what they were saying. And given the urgency of the threats, we could not allow ourselves to get bogged down in the court approval process. I asked the White House counsel’s office and the Justice Department to study whether I could authorize the NSA to monitor al Qaeda communications into and out of the country without FISA warrants.
Both told me I could. They concluded that conducting surveillance against our enemies in war fell within the authorities granted by the congressional war resolution and the constitutional authority of the commander in chief. Abraham Lincoln had wiretapped telegraph machines during the Civil War. Woodrow Wilson had ordered the interception of virtually every telephone and telegraph message going into or out of the United States during World War I. Franklin Roosevelt had allowed the military to read and censor communications during World War II.
Before I approved the Terrorist Surveillance Program, I wanted to ensure there were safeguards to prevent abuses. I had no desire to turn the NSA into an Orwellian Big Brother. I knew that the Kennedy brothers had teamed up with J. Edgar Hoover to listen illegally to the conversations of innocent people, including Martin Luther King, Jr. Lyndon Johnson had continued the practice. I thought that was a sad chapter in our history, and I wasn’t going to repeat it.
On the morning of October 4, 2001, Mike Hayden and the legal team came to the Oval Office. They assured me the Terrorist Surveillance Program had been carefully designed to protect the civil liberties of innocent people. The purpose of the program was to monitor so-called dirty numbers, which intelligence professionals had reason to believe belonged to al Qaeda operatives. Many had been found in the cell phones or computers of terrorists captured on the battlefield. If we inadvertently intercepted any portion of purely domestic communications, the violation would be reported to the Justice Department for investigation. To be sure the program was used only as long as necessary, it had to be regularly reassessed and reapproved.
I gave the order to proceed with the program. We considered going to Congress to get legislation, but key members from both parties who received highly classified briefings on the program agreed that the surveillance was necessary and that a legislative debate was not possible without exposing our methods to the enemy.
I knew the Terrorist Surveillance Program would prove controversial one day. Yet I believed it was necessary. The rubble at the World Trade Center was still smoldering. Every morning I received intelligence reports about another possible attack. Monitoring terrorist communications into the United States was essential to keeping the American people safe.
On December 22, a British passenger named Richard Reid tried to blow up an American Airlines flight carrying 197 people from Paris to Miami by detonating explosives in his shoes. Fortunately, an alert flight attendant noticed his suspicious behavior, and passengers overwhelmed him before he could light the fuse. The plane was diverted to Boston, where Reid was marched off in handcuffs. He later told questioners that his goal was to cripple the U.S. economy with an attack during the holiday season. He pled guilty to eight counts of terrorist activity, leading to a life sentence at the federal supermax prison in Florence, Colorado.
The foiled attack had a big impact on me. Three months after 9/11, it was a vivid reminder that the threats were frighteningly real. Airport screeners began
requiring passengers to remove their shoes at checkpoints. I recognized that we were creating an inconvenience, but I felt it was worth it to prevent a copycat attack. I knew my policy was being implemented fully when Laura’s eighty-two-year-old mom had to take off her shoes before her Christmas flight from Midland to Washington. I sure hoped I wouldn’t be nearby if they asked Mother to do the same.
The near-miss over the Atlantic highlighted a broader gap in our approach to the war on terror. When Richard Reid was arrested, he was swiftly placed into the U.S. criminal justice system, which entitled him to the same constitutional protections as a common criminal. But the shoe bomber was not a burglar or bank robber; he was a foot soldier in al Qaeda’s war against America. He had emailed his mother two days before his attempted attack: “What I am doing is part of the ongoing war between Islam and disbelief.” By giving this terrorist the right to remain silent, we deprived ourselves of the opportunity to collect vital intelligence on his plan and his handlers.
Reid’s case made clear we needed a new policy for dealing with captured terrorists. In this new kind of war, there is no more valuable source of intelligence on potential attacks than the terrorists themselves. Amid the steady stream of threats after 9/11, I grappled with three of the most critical decisions I would make in the war on terror: where to hold captured enemy fighters, how to determine their legal status and ensure they eventually faced justice, and how to learn what they knew about future attacks so we could protect the American people.
Initially, most captured al Qaeda fighters were held for questioning in battlefield prisons in Afghanistan. In November, CIA officers went to interrogate Taliban and al Qaeda prisoners detained at a primitive nineteenth-century Afghan fortress, Qala-i-Jangi. A riot ensued. Using weapons smuggled onto the complex, enemy fighters killed one of our officers, Johnny “Mike” Spann, making him the first American combat death in the war.
The tragedy highlighted the need for a secure facility to hold captured terrorists. There were few options, none particularly attractive. For a while, we held al Qaeda detainees on Navy ships in the Arabian Sea. But that was not a viable long-term solution. Another possibility was to send the terrorists to a secure base on a distant island or U.S. territory, such as Guam. But holding captured terrorists on American soil could activate constitutional protections they would not otherwise receive, such as the right to remain silent. That would make it much more difficult to get urgently needed intelligence.
We decided to hold detainees at a remote naval station on the southern tip of Cuba, Guantanamo Bay. The base was on Cuban soil, but the United States controlled it under a lease acquired after the Spanish-American War. The Justice Department advised me that prisoners brought there had no right of access to the U.S. criminal justice system. The area surrounding Guantanamo was inaccessible and sparsely populated. Holding terrorists in Fidel Castro’s Cuba was hardly an appealing prospect. But as Don Rumsfeld put it, Guantanamo was the “least worst choice” available.
At Guantanamo, detainees were given clean and safe shelter, three meals a day, a personal copy of the Koran, the opportunity to pray five times daily, and the same medical care their guards received. They had access to exercise space and a library stocked with books and DVDs. One of the most popular was an Arabic translation of Harry Potter.
Over the years, we invited members of Congress, journalists, and international observers to visit Guantanamo and see the conditions for themselves. Many came away surprised by what they found. A Belgian official inspected Guantanamo five times and called it a “model prison” that offered detainees better treatment than Belgian prisons. “I have never witnessed acts of violence or things which shocked me in Guantanamo,” he said. “One should not confuse this center with Abu Ghraib.”
While our humane treatment of Guantanamo detainees was consistent with the Geneva Conventions, al Qaeda did not meet the qualifications for Geneva protection as a legal matter. The purpose of Geneva was to provide incentives for nation-states to fight wars by an agreed set of rules that protect human dignity and innocent life—and to punish warriors who do not. But the terrorists did not represent a nation-state. They had not signed the Geneva Conventions. Their entire mode of operation—intentionally killing the innocent—defied the principles of Geneva. And if al Qaeda captured an American, there was little chance they would treat him humanely.
This was confirmed with gruesome clarity in late January 2002, when terrorists in Pakistan abducted Wall Street Journal reporter Daniel Pearl. They alleged he was a CIA spy and tried to blackmail the United States into bargaining for his release. America has a longstanding policy of not negotiating with terrorists, and I continued it. I knew that if I accepted one terrorist’s demands, it would only encourage more kidnappings. Our military and intelligence assets were searching urgently for Pearl, but they couldn’t make it in time. In his final moments, Danny Pearl said, “My father is Jewish, my mother is Jewish, I am Jewish.” Then his al Qaeda captors slit his throat.
As I made my decision on Geneva protection, I also decided to create a legal system to determine the innocence or guilt of detainees. George Washington, Abraham Lincoln, William McKinley, and Franklin Roosevelt had faced similar dilemmas of how to bring captured enemy combatants to justice during wartime. All had reached the same conclusion: a court operated by the military.
On November 13, 2001, I signed an executive order establishing military tribunals to try captured terrorists. The system was based closely on the one created by FDR in 1942, which tried and convicted eight Nazi spies who had infiltrated the United States. The Supreme Court had unanimously upheld the legality of those tribunals.
I was confident the military tribunals would provide a fair trial. Detainees were entitled to the presumption of innocence, representation by a qualified attorney, and the right to present evidence that would “have probative value to a reasonable person.” For practical national security reasons, they were not allowed to view classified information that would expose intelligence sources and methods. Convicting a defendant required agreement of two thirds of the tribunal. The detainee could appeal the tribunal’s decision or sentence to the secretary of defense and to the president.
Inherent in my tribunals decision—and many others in the new war—was the tension between protecting the American people and upholding civil liberties. Maintaining our values was critical to our position in the world. We could neither lead the free world nor recruit new allies to our cause if we did not practice what we preached. I believed military tribunals struck the right balance, upholding the rule of law while protecting the country.
On March 28, 2002, I could hear excitement in George Tenet’s voice. He reported that Pakistani police—with a hand from the FBI and CIA—had launched a takedown operation against several al Qaeda safe houses in the Pakistani city of Faisalabad. They netted more than two dozen operatives, including Abu Zubaydah.
I had been hearing reports about Zubaydah for months. The intelligence community believed he was a trusted associate of Osama bin Laden and a senior recruiter and operator who had run a camp in Afghanistan where some of the 9/11 hijackers had trained. He was suspected of involvement in previous plots to destroy targets in Jordan and blow up Los Angeles International Airport. The CIA believed he was planning to attack America again.
Zubaydah had been severely wounded in a gun battle prior to his arrest. The CIA flew in a top doctor, who saved his life. The Pakistanis then turned him over to our custody. The FBI began questioning Zubaydah, who had clearly been trained on how to resist interrogation. He revealed bits and pieces of information that he thought we already knew. Frighteningly, we didn’t know much. For example, we received definitive information about a new alias for Khalid Sheikh Mohammed, who Zubaydah also confirmed had masterminded the 9/11 attacks.
Then Zubaydah stopped answering questions. George Tenet told me interrogators believed Zubaydah had more information to reveal. If he was hiding something more, what could it be? Zu
baydah was our best lead to avoid another catastrophic attack. “We need to find out what he knows,” I directed the team. “What are our options?”
One option was for the CIA to take over Zubaydah’s questioning and move him to a secure location in another country where the Agency could have total control over his environment. CIA experts drew up a list of interrogation techniques that differed from those Zubaydah had successfully resisted. George assured me all interrogations would be performed by experienced intelligence professionals who had undergone extensive training. Medical personnel would be on-site to guarantee that the detainee was not physically or mentally harmed.
At my direction, Department of Justice and CIA lawyers conducted a careful legal review. They concluded that the enhanced interrogation program complied with the Constitution and all applicable laws, including those that ban torture.
I took a look at the list of techniques. There were two that I felt went too far, even if they were legal. I directed the CIA not to use them. Another technique was waterboarding, a process of simulated drowning. No doubt the procedure was tough, but medical experts assured the CIA that it did no lasting harm.
I knew that an interrogation program this sensitive and controversial would one day become public. When it did, we would open ourselves up to criticism that America had compromised our moral values. I would have preferred that we get the information another way. But the choice between security and values was real. Had I not authorized waterboarding on senior al Qaeda leaders, I would have had to accept a greater risk that the country would be attacked. In the wake of 9/11, that was a risk I was unwilling to take. My most solemn responsibility as president was to protect the country. I approved the use of the interrogation techniques.
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