It seemed that everybody in Washington weighed in on the matter, offering as many divergent opinions. Finally, on February 7, 2002, President Bush settled on a policy that the United States would treat those captured humanely, but that Geneva did not apply to al-Qaeda and that the Taliban were “unlawful combatants” who had forfeited their prisoner of war status.12 But that raised another sticky problem. Our troops were already capturing enemy soldiers on the battlefields of Afghanistan and elsewhere. Where should we put the bad guys?
The answers that various people came up with were interesting.
CHAPTER 17
THE ULTIMATE CLUB FED
Even before the first shots were fired in Afghanistan, many of us in the White House with national security responsibilities wondered what we were going to do with prisoners if we went to war. How and where were we going to detain terrorists and other captives of intelligence value or considered dangerous to our country? Immediately after hostilities began in Afghanistan, the US military began capturing enemy combatants. As early as November 13, 2001, after serious discussions, President Bush issued a military order providing for military commissions and the detention of enemy combatants “at an appropriate location designated by the Secretary of Defense outside or within the United States.”1
These were not new issues. The United States had dealt with detentions during World War II, detaining not only prisoners of war but, regrettably, thousands of innocent people—many of whom were US citizens—living in the United States. Their only “crime”? They looked Japanese or had Japanese relatives.
We did not want to engage in that same sort of mass detention after 9/11. Moreover, unlike al-Qaeda—or ISIS today—we understood our moral and legal obligations not to kill captives. Yet the question remained about what to do with captured prisoners, most of whom were seized on the battlefield, others of whom were scooped up because they had terrorist ties, and were part of al-Qaeda or assisting al-Qaeda. These were not run-of-the-mill street thugs; many of them were cold-blooded killers who had committed horrific acts of savagery and would do so again if not detained, or if they escaped, were released, or otherwise allowed to return to battle.
At first, we briefly explored the notion of returning captured combatants to their home countries where they could be incarcerated. Most of the early captives, however, were from Afghanistan, and there was no legitimate government in place that could be trusted to keep the combatants detained. We considered placing the captured combatants in an existing facility or building one of our own in Afghanistan, and guarding them with American soldiers. General Tommy Franks considered this inconsistent with having a limited footprint in Afghanistan and too dangerous in a war zone—for our guards as well as the detainees—and proved to be deadly at Mazar-e-Sharif.
A senior Defense Department official suggested we use the crumbling facilities that once held Al Capone and other dangerous criminals on Alcatraz, the federal prison that is now a popular sight-seeing spot a mere mile and a half off the shores of San Francisco. We also weighed briefly using the maximum-security facility at Fort Leavenworth, Kansas, or the supermax prison in Colorado, or even housing the terrorists on military bases within the United States such as the brigs at Charleston and Norfolk. Those discussions were short since few of us believed the American people would sleep better knowing that the terrorists who had killed nearly three thousand of our fellow citizens were now residing in our homeland—even if they were in maximum-security prisons.
Furthermore, I worried about the legal ramifications of bringing enemy combatants onto American soil, where some ambitious lawyers might successfully argue that the terrorists are entitled to certain constitutional rights they would not ordinarily receive if they were detained outside the United States.
We considered places in the Aleutian Islands, Guam, and even toyed with the idea of a floating prison—using a Navy ship to detain captives somewhere out at sea. That idea, too, was short-lived, in part because of international law.
Eventually, we turned our attention toward Guantanamo Bay, Cuba, where the United States maintained a naval station used to refuel navy ships and US aircraft patrolling the Caribbean. The site was remote and secure, and there was no large civilian population nearby that might be at risk. It even had a small naval hospital. Gitmo, as it was known, was controlled by the United States under an “evergreen” lease with the Cuban government, so long as the United States used it to resupply ships. The Justice Department gave a qualified opinion that the courts should conclude since Gitmo was not technically US property, it was not subject to American legal jurisdiction. The US Supreme Court would see that matter differently a few years later.
During previous administrations, in addition to Gitmo’s military functions, the naval station had also been used to detain Cuban and Haitian refugees, including many boat people who had risked their lives in makeshift crafts trying to reach Florida, where they hoped to receive asylum. Most did not reach Florida and even fewer received asylum. Many of them wound up at Guantanamo for months. In a key precedent, the United States did not afford the refugees the same legal rights as Americans because they were not on US soil, nor were they US citizens. So it made sense to administration lawyers that captured terrorists could be kept at Gitmo without concerns that they would have access to US courts where they could exploit our legal protections and use legal proceedings as a platform to promote their terrorist ideology.
After much discussion, the principals committee recommended Guantanamo Bay as the detention site, and their recommendation was accepted by President Bush. I felt it was the best among a short list of imperfect choices—or as Don Rumsfeld famously put it, “the least worst place.”2 He was right. Of all the bad options we had to choose from, this one was the best. Gitmo was certainly not selected so the United States could operate there beyond US law in respect to interrogations, or without limitations under international law. In fact, the decision to house detainees at Gitmo was made by the Pentagon prior to President Bush’s February 7, 2002, decision regarding whether the provisions of the Geneva Convention applied to al-Qaeda and the Taliban, as well as prior to any guidance from the Department of Justice, provided in August 2002, regarding enhanced interrogations under strict guidelines.
On January 11, 2002, the first detainees arrived at Guantanamo Bay. Later in that same month, along with lawyers from the Departments of Defense, State, and Justice, I traveled to Guantanamo Bay to view the facility where we planned to keep the most dangerous or those individuals we had captured who might have intelligence value.
Despite being surrounded by warm, tropical breezes and the sparkling turquoise waters of the Caribbean, the conditions at Gitmo were initially rudimentary. Detainees were housed in a facility built during the Clinton administration for illegal immigrants and refugees. Early critics of the conditions often failed to mention that the US forces guarding the dangerous detainees lived in the same conditions as the prisoners. We planned to construct new, modern facilities, which was done within a few months of my first visit. Over time, the facilities became state of the art. Indeed, eventually Gitmo became comparable to some state prisons and local jails in the United States. Contrary to reports in the media, the detainees had clean clothes, warm showers, toiletries, blankets, healthy food consistent with their religious beliefs, access to television, books, newspapers, movies, their choice of numerous sports and exercise opportunities, medical care, and Korans and prayer mats. In contrast, how many prisoners held by al-Qaeda or ISIS have been given Bibles or other religious books? In addition, signs exist at Gitmo that point toward Mecca to help facilitate the terrorists’ prayer lives.
Regular inspection visits by members of the International Red Cross began shortly after the first detainees arrived. Nevertheless, civil libertarians complained that we were not treating the detainees properly because they were housed in cells rather than open areas, and they were not permitted to prepare their own meals. During our visit, however, a marine general
explained that several of the detainees had been screaming that they wanted to kill the guards and other Americans. Some al-Qaeda detainees not only tried to kill the guards, but they also threatened their peers who they thought might be cooperating with the Americans. Clearly, affording customary prisoner of war rights to the detainees was going to be unlikely.
One of the first law-related questions to pop up was whether detainees at Gitmo would be entitled to habeas corpus rights in our federal courts, rights that would allow the terrorists to challenge in US courts whether they should be detained at all.3 Historically, we have never recognized the rights of foreign detainees to petition our courts. During the Civil War, for instance, Confederate soldiers held in federal facilities were not afforded such rights. During World War II, the United States brought thousands of captured soldiers from various countries to the United States, but none of them were granted the right to challenge their detention. An important and often-cited Supreme Court case, Johnson v. Eisentrager, supported that policy. Based on that precedent, the Office of Legal Counsel informed the Department of Defense that petitions for habeas corpus rights should not be entertained from detainees at Gitmo. By our logic, detainees held outside the United States, for actions outside the United States, and with no direct ties to the United States, would not be entitled to habeas relief.
Surprisingly, the Supreme Court disagreed with that conclusion years later in the case of Rasul v. Bush, finding that the United States exercised complete dominion over Gitmo under an evergreen lease with Cuba. Thus, Gitmo was in essence a territory of the United States. I and many other legal experts were disappointed by that decision.
President Bush had no desire for the United States to be the world’s jailer. He much preferred, for most detainees, they be brought to justice in their home country, or dealt with in military courts, but that process was repeatedly delayed or otherwise impeded by lawyers representing the detainees. So Gitmo became an increasingly necessary and permanent part of our lives. The key purposes, however, were to get information, to bring people to justice, and to make sure that the people with evil intent did not harm anyone else.
I visited the naval station and detainee facilities at Guantanamo Bay three times during my work in the Bush administration, and what I witnessed left indelible impressions on me. On each subsequent trip, the detainees’ conditions improved rather than worsened, contrary to what the American public was often led to believe by certain members of the media, members of Congress, and human rights activists.
Detainees at Gitmo were living in better conditions than American soldiers who had been incarcerated on foreign soil, and better than some European prisons, according to one member of the European parliament. If the truth were known, many Americans would be surprised not at the inhumane treatment of detainees but that the detainees were actually treated so well. Many American citizens—especially those who lost loved ones on 9/11—would be disgusted that the terrorists and those who had colluded with them in murdering nearly three thousand civilians were afforded so many comforts and unusual considerations in this “ultimate Club Fed.”
The maximum detainee population at Guantanamo reached nearly nine hundred terrorists. Today, there are less than one hundred, most of whom are high-value terrorists who either have valuable information we need to thwart future attacks or who pose a dangerous threat—or both. These are not passive prisoners. In 2006, for example, a group of detainees used makeshift weapons to attack Guantanamo military guards who had rushed to save a detainee who had faked a suicide.4 Even today, the detainees continue to do all they can to injure or insult their captors, often hurling their own feces at guards.
Heated discussions occurred in the Bush White House about how to best bring these terrorists to justice. In general, we wanted to establish protocols that would survive the test of time. We believed the war on terror would outlast our administration, and we worried whether future administrations would have the courage to do the hard and often unpopular work necessary to protect America.
Nevertheless, serious disagreements continued to exist among lawyers within the administration, as well as the top decision makers, regarding the disposition of certain detainees. Each department made its recommendations to the president. I tried to stay dispassionate, listening to all sides and trying to keep us within the law. The pressures were intense. We soon discovered that not everybody incarcerated at Gitmo was equally dangerous. Some had merely been in the wrong place at the wrong time when coalition forces swept up a bunch of terrorists. When combatants don’t wear uniforms, mistakes such as that can happen. So when possible, we tried to release detainees who had no intelligence value or were no longer dangerous, or return them to their own countries. Unfortunately, we soon experienced the deadly consequences of detainees who returned to fight against America again after being released from Guantanamo Bay. Several suspected al-Qaeda and Taliban who were captured and detained initially at Guantanamo were released in 2003 and 2004. They were recaptured in Afghanistan where they were conducting raids against coalition forces. I often wondered how difficult it must have been for the president to speak to the parents of a young soldier killed by someone we had released from Gitmo.
As I write these words, despite George W. Bush’s desire to close Guantanamo Bay as a detention center, it remains open because of necessity. And despite Barack Obama’s repeated campaign promises that he would close Guantanamo, and his various efforts to do so as president, even risking the trade and release of some detainees who probably never should have been released, he has discovered that closing Gitmo is much easier said than done. Nearly eight full years into the Obama presidency, Gitmo is still open. The problem is extremely complex: as long as the war on terrorism continues, we need a maximum-security detention facility. If Guantanamo Bay did not exist, we’d have to create something similar. Consequently, Gitmo remains the least worst place.
CHAPTER 18
BRINGING TERRORISTS TO JUSTICE
Anticipating the challenges our government might encounter trying to prosecute terrorists in the US criminal justice system, I began working with Bush administration lawyers in October of 2001 to provide the president with another option—trying the terrorists in military commissions. Similar to my limited background on the Geneva Conventions, I had little experience with military commissions. So I read memos and articles and discussed the subject with civilian and military lawyers. I learned that military commissions reflect a compromise in which our government has attempted to protect our nation’s secrets—especially during wartime—while providing due process for the accused. There is not a jury, but the defendant is tried before military tribunals, most of whom are officers or senior judges with extensive knowledge of the issues. The defendant can be represented by attorneys present during the trial, but unlike regular courts, military commissions can close portions of the proceedings when, for example, classified material is being discussed or an enemy leader might testify.1
Military commissions have the advantage of being more secure, since they can be conducted on military bases or other safe locations.
Historically, military commissions go back to the early days of our nation. During the Revolutionary War, George Washington used a military court of inquiry to put Major John André on trial for spying. Although the trials were not called military commissions, General Andrew Jackson employed military tribunals during the War of 1812 and then again in 1818. Military commissions were used in the Spanish-American War and the Civil War. They were also used to try President Lincoln’s assassins, as well as the commander of Andersonville, the notorious Confederate prisoner of war camp.
Military commissions were employed extensively during World War II. One instance involved a 1942 case in which the United States captured eight Nazi agents who had traveled by submarine from France, landed on the beaches of Long Island as well as North Florida, and planned to blow up factories, bridges, railroad lines, and hydroelectric and other utility plants.2 All eight ha
d lived in the United States prior to the war, and two were even US citizens.3
When President Franklin D. Roosevelt learned of the situation, he insisted that the saboteurs be tried in a military court, and Roosevelt was not bashful about letting his biases show. He wanted the death penalty applied, and swiftly. “Offenses such as . . . these are probably more serious than any offense in criminal law,” he said. “The death penalty is called for by usage and by the extreme gravity of the war aim and the very existence of our American government.”4
FDR fired off two executive orders, the first establishing a military commission to try the saboteurs, and the second establishing the procedures for the trial, ordering that the saboteurs be given a full and fair trial. A two-thirds vote was required for conviction and sentence. Despite objections by the Nazis’ military lawyers that the military commissions did not have jurisdiction because US courts were open and the defendants had not been directly in a war zone, in Ex parte Quirin, the Supreme Court upheld Roosevelt’s decision to try them in a military commission. The saboteurs were tried, convicted, and sentenced to death. Six of them were executed. Roosevelt commuted the sentences of the other two. The saboteurs were captured in June, tried in July, and executed before the Supreme Court issued its written opinions.
Unquestionably, as DOJ lawyer Jack Goldsmith later expressed, Roosevelt operated in a “permissive legal culture that is barely recognizable to us today. It was an era before Vietnam, before the revelations of Hoover’s domestic espionage, and before Watergate. This was a time when the press, Congress, and intellectuals had a higher regard for the executive branch and the military. It was also an era before the judicial civil liberties revolutions of the 1960s and 1970s, when America was much less solicitous of political and civil rights.”5 Nevertheless, given the recent horrific attacks by these non-state actors, we were persuaded that Roosevelt’s orders provided sufficient precedent for the use of commissions.
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