Moreover, I understood that the techniques I authorized were intended for use only with one key individual. General Hill advised that Muhammed al-Qahtani had information that could save American lives. He and others in the chain of command believed additional techniques were warranted. Any proposals to use these methods on others would have to come back up the chain of command for review.*
Many claims have been made about the usefulness of various interrogation strategies and methods. In the case of Qahtani, the reports from the interrogators say the approved techniques yielded important information. Qahtani ultimately acknowledged that he was an al-Qaida member and had met with bin Laden. He admitted he knew the 9/11 terrorists and was sent to the United States by Khalid Sheikh Muhammed, the chief planner of the attacks.20 Qahtani acknowledged he knew Richard Reid, the terrorist who plotted to blow up an airliner with explosives in his shoes, and also knew Jose Padilla, who was thought to have plans to bomb apartment buildings in Chicago.21 Qahtani provided useful information about al-Qaida’s planning for 9/11, its methods of cross-border infiltration, and information about bin Laden’s bodyguards. Much of the information from Qahtani’s interrogations remains classified, but the Schlesinger and Brown panel concluded that the interrogation was critical in “gaining important and time-urgent information.”22 One military report by two general officers found that Qahtani “ultimately provided extremely valuable intelligence.”23
Qahtani’s interrogation did not lead, as some critics have alleged, to the abuse at Abu Ghraib, or anywhere else for that matter. “We found no link between approved interrogation techniques and detainee abuse,” Vice Admiral Albert Church concluded from his independent investigation of detainee operations.* He noted that “the Office of the Secretary of Defense was a moderating force that cut back on the number and types of techniques under consideration.”25 The Church report stated of Guantánamo Bay:
[D]etainees were more likely to suffer injury from playing soccer or volleyball during recreational periods than they were from interactions with interrogators or guards. . . . In our view, the extremely low rate of abuse at GTMO is largely due to strong command oversight, effective leadership, and adequate training on detainee handling and treatment.26
At the time, my approval of Haynes’ December 2002 cover memo, in response to SOUTHCOM’s request for additional interrogation techniques for Qahtani, was uncontroversial. My decision to accept the DoD general counsel’s recommendations, approving some interrogation strategies sought by General Hill but rejecting others, was done with the concurrence of senior Defense Department officials, both military and civilian.
It was not until January 10, 2003, thirty-nine days After I had approved a limited number of the proposed techniques, that Haynes informed me that some military lawyers had expressed concern and suggested that Qahtani’s interrogation plan might be construed as mistreatment. As urgent as it was to obtain terrorism-related intelligence, I was not willing to allow the use of methods that could be reasonably challenged as improper. It made no sense to fight terrorists in a way that might raise questions about our respect for the law and that could ultimately undermine our efforts. When I learned of the concerns, I promptly suspended my prior approval of the additional interrogation techniques.27
I then instructed Haynes to assemble a team to review the interrogation guidelines. I wanted the team to include any and all of those military orcivilian personnel who were concerned about them or the interrogation plan: intelligence officials, defense policy experts, and lawyers from every military service. When I met with the group one weekend in February or March 2003, I told them that I wanted their honest views. They seemed to appreciate that they had been brought into the process, and gave me the clear impression that if they had any concerns, they were being resolved.
In April 2003 the review group we had impaneled reached its conclusions. Their report identified thirty-five techniques that they believed could be used legally for key al-Qaida members under proper interrogation plans.28 After reviewing their report, I authorized only twenty-four of the thirty-five techniques they had recommended. Each of the techniques I approved, I was told, had been unanimously supported by the members of the legal review team, as well as by each of the service secretaries and each of the members of the Joint Chiefs of Staff involved in the process.*
I was informed that several senior military officials participating in the review expressed concern that my decision was too restrictive, that we might be risking American lives by authorizing only limited interrogation methods and excluding other techniques. Some officials were especially dismayed by my suspension of the methods being employed in the Qahtani case, because they thought they were on the verge of an intelligence breakthrough. However, I wanted an approach that would reflect the best judgment of all of the relevant components of the Department of Defense, military and civilian. The techniques I approved After receiving the April 2003 conclusions did just that.
The subsequent politicized public debate about this subject has obscured a fact of great importance: None of the authorized interrogation methods—either those approved in December 2002 and used on one detainee until I rescinded them, or those that I later approved in April 2003—involved physical or mental pain. None were inhumane. None met any reasonable person’s definition of torture. From start to finish, my goal in interrogation matters was to balance the nation’s need for intelligence against considerations of military tradition and morale. Like all solutions that balance complex and weighty issues, Qahtani’s interrogation was imperfect and not without controversy, but as soon as concerns were raised, I addressed them immediately.
Some two and a half years later, I learned what had happened to Muhammed al-Qahtani during his interrogation.29 I was surprised and troubled. Some of what took place sounded to me as if the interrogation plan may have gone beyond the techniques I had approved. Apparently Qahtani was exposed to cold temperatures at some point, which I had rejected in my authorization. It appears he was stripped and humiliated. The combination and frequency of techniques interrogators had used with Qahtani called into question their appropriateness, at least in my mind. They may not have been in keeping with the intent of my January 2002 order that all detainees in the custody of the Defense Department were to be treated humanely.30
If Qahtani’s true identity had been known at the time of his capture, before he came into DoD custody, it is highly likely the CIA would have assumed responsibility for him, rather than DoD. The Defense Department’s detention operations often are confused with those undertaken by the CIA, but they were two separate sets of activities. At some point in the months After 9/11, the CIA established an interrogation program for high-level al-Qaida operatives captured around the world. Their highly classified program apparently began After Pakistani forces captured senior bin Laden lieutenant Abu Zubaydah in a March 2002 gun battle.31 Over the next year, the Agency successfully collected intelligence from Zubaydah and captured and interrogated other senior al-Qaida lieutenants, which eventually led to the capture of the mastermind of 9/11, Khalid Sheikh Muhammed.*
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.
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-v
alue 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 institutions. 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 passed 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 Guantánamo 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 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.
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 Guantánamo 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 assigned 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 Guantánamo.
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 Guantánamo 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 Guantánamo, the likely answers range from three to hundreds. The correct answer is zero. When military interrogators at Guantánamo Bay sent up their chain of command a request to use waterboarding in late 2002, I rejected it. To my knowledge, no U.S. military personnel involved in interrogations waterboarded any detainees—not at Guantánamo Bay, or anywhere else in the world.
There is no doubt in my mind that I made the right decision when it came to rejecting the use of waterboarding by U.S. military personnel. Reasonable people can disagree whether it crosses the line into dubious territory.* It is one thing to argue against coercive interrogation techniques on moral grounds—that they are contrary to America’s values and therefore should never be employed. It is quite another to argue against those techniques on practical grounds—that they do not and will not work. While it may make a convenient plank for critics’ arguments against the CIA’s interrogation program, there are inconvenient facts to the contrary that must also be taken into account.*
The men and women of the CIA were given a challenging assignment to interrogate senior al-Qaida operatives. I saw the challenges up close when we discovered that the likely twentieth hijacker of the 9/11 attacks was in Defense Department custody. Administration lawyers fully vetted and approved the CIA’s program, giving them the green light to proceed. The men and women of the Central Intelligence Agency who elicited critical information from well-connected al-Qaida members, deserve our respect, not condemnation. They are patriots, not criminals.
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 in 2000, it made it even more difficult to track down the enemy. For example, in 1998, within days After documents made public in court revealed that the United States could intercept Osama bin Laden’s cell phone and his GPS location, bin Laden stopped using mobile devices.* If it wasn’t clear enough already, the deaths of nearly three thousand American citizens painfully drove home the inescapable conclusion that the U.S. law enforcement approach to terrorism had failed miserably and inflicted a great cost on our nation. President Bush decided America could not afford to keep making the same mistakes.
In mid-November 2001, the President announced that trials for terrorist detainees would be held by specially designed military commissions—not ordinary civilian courts and not military tribunals under the Uniform Code of Military Justice. Terrorists were enemies in wartime, no longer domestic criminals. His order of November 13 specified, “Any individual subject to this order shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death.”2
President Bush based this order on longstanding American legal precedents. Military commissions, designed to provide due process but specially suited to the circumstances of the conflict at the time, have been used by the United States in many of its wars since the founding of the Republic.* They were established to provide fair trials for enemies accused of war crimes and other offenses. The military commission’s procedures have differed from those of existing tribunals—that is, from civilian courts as well as from military courts-martial—otherwise there would have been no point in creating the commissions.
The best-known military commission was created in 1942 by President Franklin Roosevelt to try eight Nazi saboteurs. All of them had lived in the United States at some time prior to the outbreak of World War II, and at least one was an American citizen. They planned to come ashore from German submarines, blend into the population, and bomb American manufacturing facilities. The conspirators made it onto beaches in Florida and Long Island with large s
ums of cash and explosives, but no farther.
The eight saboteurs were promptly rounded up. There were demands in the press for their swift execution, which FDR favored. He wrote to his attorney general that “[s]urely they are as guilty as it is possible to be and it seems to me that the death penalty is almost obligatory.”4 In three days, FDR’s military commission—meeting in secrecy on the Justice Department’s fifth floor in downtown Washington—tried, convicted, and sentenced the eight to death. A total of six weeks elapsed between the capture of the saboteurs and their execution.
Critics characterized the President’s November 2001 military order as vague and sweeping. Given the uncertainties of the time, it was perhaps inevitable that aspects of the President’s order were imprecise.5 Its purpose was to establish only the framework of the military commissions, which led some critics to assume the worst. My longtime friend and New York Times columnist Bill Safire criticized the proposed tribunals as “kangaroo courts.”6 I was determined to prove this criticism wrong and to see that the military commissions were fair and would be a credit to America.
Believing in the value of tapping into the expertise, judgment, and experience of experts outside the government, I assembled nine distinguished legal minds from across the political and philosophical spectrum to serve as an outside advisory group to the Defense Department. Government experts are helpful and needed, but it’s important to hedge against insularity. I thought the outside group could help fashion rules and procedures for the military commissions and to address the arguments fair-minded critics might raise against them.
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