True Faith and Allegiance

by Alberto R. Gonzales

  Inside the White House, there was intense debate over whether captured terrorists should undergo criminal trials or military commissions. Some believed that military commissions were appropriate; others favored criminal trials. I thought it depended on the circumstances such as the citizenship of the detainees, where they were first captured or detained, and where their unlawful conduct had occurred. I told President Bush, “I want to present you as many disposition options as possible, Mr. President.” I gave him a menu of choices: (1) we try the terrorists in criminal court; (2) we detain them indefinitely at Guantanamo; (3) we return the prisoners to their home countries for detention or prosecution; or (4) we try them in military commissions.

  The debate about the proper disposition of captured terrorists intensified over the prosecution of Zacarias Moussaoui, a detainee often referred to as “the twentieth hijacker” since he fully intended to be part of the 9/11 attacks. Moussaoui openly admitted that he was a member of al-Qaeda, that he hated Americans, and that he was in the United States to prepare for attacks.

  A French citizen, Moussaoui had ostensibly entered the United States in February 2001 to take flying lessons at a flight school in Oklahoma. In August, he moved to Minnesota, where he continued flight training. He had no prior flight experience, nor had he ever been known to express an interest in aviation or in becoming a pilot. He was known to hold jihadist beliefs and had traveled to Pakistan. He had ties to Ramzi bin al-Shibh, an al-Qaeda facilitator, and had $32,000 in his bank account at the time of his apprehension, but could not—or would not—explain where it had come from.

  US immigration officials detained him for overstaying his visa prior to 9/11, but because of the wall prohibiting the sharing of information between various law enforcement and intelligence agencies put in place by the Justice Department during the Clinton administration, the FBI turned down a request for a warrant to search Moussaoui’s computer and belongings, which contained information that might have led to the discovery of the 9/11 plot.

  During the initial detention of Moussaoui, the administration was working to establish military commissions. Attorney General John Ashcroft felt strongly that Moussaoui should be tried in civilian courts rather than military. To the surprise and disappointment of some in the administration who believed military commissions were necessary to bring people like Moussaoui to justice, the DOJ indicted him in December 2001 for conspiracy to commit terrorist attacks. He would stand trial in Alexandria, Virginia, only a few minutes drive from the scarred face of the Pentagon.

  The attorney general believed that Moussaoui had committed crimes and the DOJ could successfully prosecute him. He also felt it was important to show the American public that our criminal justice system could successfully bring a high-level terrorist to justice during an ongoing conflict. Although there were contrary views in the White House, I was reluctant to interfere with an indictment, and I agreed with the attorney general that we needed to answer the question whether courts were a realistic option. This case provided the opportunity. I reluctantly went along with the attorney general’s recommendation that DOJ try Moussaoui in US criminal court rather than a military tribunal. It was risky; while we had a strong case against Moussaoui, there was always the chance that a judge would disallow key evidence or a jury would find exception and set him free. The National Security Council engaged in serious discussions about what we would do if that occurred, but there was no clear answer.

  President Bush accepted the DOJ recommendation but warned me, “If this goes south, I am going to yank Moussaoui out and put him in our military justice system.”

  My fears were realized months later when the district court ruled that we make Gitmo detainees available for Moussaoui’s defense. I could already hear “I told you so!” ringing throughout the White House. Fortunately, on appeal by the government, the Fourth Circuit Court of Appeals overruled the lower court, holding that the government had offered sufficient substitutions for the defense.

  Moussaoui was less than cooperative with counsel. He initially pled guilty to conspiring with al-Qaeda to carry out the 9/11 attacks and then changed his mind a week later. It was clear from the outset that he was going to play the US criminal justice system for all that he could get out of it, frequently grandstanding in court with vitriolic comments about the United States. He fired his public defenders and chose instead to be his own attorney. His erratic behavior worked to our advantage. Throughout Moussaoui’s incarceration and trial, US forces continued to capture other al-Qaeda terrorists. Sharp lawyers could have dragged things out for years by demanding access to al-Qaeda leaders, or even that they appear in court, possibly disclosing all sorts of intelligence information and sources and disrupting operations. We dodged a bullet when Moussaoui cooperated by pleading guilty again on April 22, 2005. I tried to follow the proceedings the best I could given my other commitments. Periodically, the DOJ lawyers gave me status reports regarding the case.

  Five years after his arrest, rather giving him a death sentence, the jury frustrated Moussaoui’s martyrdom wishes and sentenced him to life in prison. It was a victory of sorts for us, but the Moussaoui case was a classic example why, in certain circumstances, military commissions were a preferable alternative to trying terrorists in our criminal justice system. The Moussaoui case partially answered some of the questions regarding our ability to try a high-level terrorist in an ongoing conflict, but it left many unanswered questions as well. And even though the government did not face a high-powered defense team, the case was hard fought and took years, costing American taxpayers millions of dollars. The next time the United States might not be so fortunate.

  During the Moussaoui saga, work on military commissions continued. I spoke repeatedly with William J. Haynes II, general counsel for the Department of Defense, about using commissions as an option to bring enemy combatants to justice. Jim was a fellow Harvard Law graduate who served in the army before being appointed as general counsel to the army during the administration of George H. W. Bush. He was a friend and an experienced lawyer with stints as a partner at Jenner & Block and as deputy general counsel at General Dynamics. Like me, he was a morning person, and we often had serious early-morning telephone discussions. We both agreed that with the right safeguards, commissions would be preferable to an international tribunal or a criminal trial in the Southern District of New York. Jim anticipated strong reservations, however, by the Judge Advocates General (JAGs), who would likely be concerned about any policy that might tarnish the image of the military justice system. Nevertheless, used correctly, commissions would protect our nation’s national security interests and bring terrorists to justice.

  After studying the historical use of commissions and consulting with John Yoo, a bright young lawyer at OLC, in the fall of 2001 I concluded the president should at least be given the opportunity to consider that option to deal with captured terrorists. An immigrant from South Korea, John was a likable lawyer with degrees from Harvard and Yale. He had come to the administration from academia, where he had been a law professor at the University of California–Berkeley. He had previously been a law clerk on the DC Federal Appeals Court and for Supreme Court justice Clarence Thomas, as well as serving as general counsel for the Senate Judiciary Committee under Utah senator Orrin Hatch. Although he was relatively young and did not hold a Senate-confirmed position, he was a significant influence at the DOJ because of his previous work on national security and terrorist-related issues. John was viewed as an expert within the Justice Department on many of the legal issues regarding terrorism, so it fell primarily to him to provide legal advice on presidential powers.

  John felt strongly that military commissions were a good option for President Bush. I envisioned using military commissions for special cases such as bin Laden and other top al-Qaeda leaders; others who were less high profile or less dangerous, we could detain indefinitely at Gitmo, return them to their home country, or bring them to justice in our criminal courts.

 
; On the morning of October 24, 2001, I first discussed the topic of military commissions with President Bush in the Oval Office. I explained the Roosevelt precedent and told him of the Nazi saboteurs and the Supreme Court decision in Ex parte Quirin, upholding President Roosevelt’s military commission.

  The president was intrigued and concluded that having military commissions was a strong move. He told me that he wanted military commissions as a tool, but even though two of the saboteurs in the Nazi case had been American citizens, the president was reluctant to try American citizens in a military commission.

  Because military commissions operate under the authority of the Defense Department, I discussed details about this subject with Jim Haynes. Since the government was debating prosecutions, the Justice Department was understandably interested as well. Attorney General Ashcroft had serious concerns, which he raised directly with the president and vice president. From my observation, the attorney general well understood the United States had to utilize the assets of law enforcement, the military, and the intelligence community to defeat al-Qaeda.

  General Ashcroft was a staunch defender of the Department of Justice as an institution. He argued rightfully for the Justice Department to have an important role in bringing terrorists to justice in our criminal courts and, if we were to establish military commissions, in helping to develop them and in decisions regarding their use. As far as I could tell, John understood the commissions were a military proceeding under the authority of the Department of Defense, but he strongly emphasized that the courts and the public would be reassured knowing that the Justice Department had a role too. He was right. And in any event, the Justice Department would have to defend the military commissions from legal challenges that were sure to come in our courts.

  Toward the end of October into early November, the lawyers began work on an executive order, to be followed by separate regulations issued by the Defense Department as to how the military commissions should operate.

  I assigned Tim Flanigan the task of drafting the order, with assistance from David Addington and John Yoo, and input from Jim Haynes. Our goal was to model the order as closely as possible to the one used by President Roosevelt to create military commissions during World War II, since the Supreme Court had upheld Roosevelt’s authority to do so in the Nazi saboteurs’ case.

  The Roosevelt military commission that tried the Nazi saboteurs was actually held in a room on the fifth floor of the Justice Department. When I mentioned that fact to President Bush, he replied that he was reluctant to hold commissions inside the United States. John Ashcroft also expressed reservations about holding the commissions on American soil. President Bush did not want to rule out the possibility, but he wanted the flexibility to conduct the commissions inside or outside the United States, in places such as Guantanamo or possibly even other foreign countries. I agreed that it was wise not to limit the president’s options.

  On November 13, 2001, President Bush signed a military order governing the detention, treatment, and trial of certain noncitizens in the war on terrorism.6

  Opposition from civil liberties groups erupted immediately. Critics claimed that the commissions would be unfair, that they would deny detainees basic due process, and that the procedures all but guaranteed a conviction. Some argued that the whole idea of military commissions was inconsistent with America’s rule of law, that the FDR approach had been superseded by new rules such as the protections in the Geneva Conventions and the Uniform Code of Military Justice. Some of our own military lawyers were critical of military commissions. Even Condoleezza Rice was upset, not that she was opposed to military commissions per se, but because we had created the order for the president to sign without vetting it with the various agencies. Colin Powell, for example, claimed he first heard about the order through CNN.7

  I was irritated by the negative reactions. Yes, the order was developed outside the NSC process precisely because an existing NSC subcommittee had failed to make progress on recommending disposition options. We had not even committed to conduct a military commission, but it seemed that critics were unwilling to give the administration the benefit of the doubt and await the DOD regulations. Critics assumed the worst and pounced on President Bush’s order as evidence that he did not believe in the rule of law and wanted to grab power for the presidency normally reserved for Congress.

  That was utter nonsense.

  In fact, by rolling out the order now—before we actually were ready to proceed to trial—Jim Haynes could openly enlist other experts and get feedback regarding the procedures. Jim had established an outside consulting group, including Lloyd Cutler, Bill Coleman, Griffin Bell, and others who provided advice regarding the legality of the regulations. I had hoped that by moving the process to the DOD, the president would be more insulated from its criticisms. That did not turn out to be the case.

  Critics howled that using military commissions would endanger Americans abroad, since there would be nothing to stop other countries from bringing US citizens before similarly secret tribunals to convict them without evidence and without the right to counsel. That, too, was ridiculous, but the media and others went with it.

  We responded that the president’s order clearly provided for a “full and fair trial” and the admission of all relevant evidence. That meant the military commissions could not convict individuals unless the government presented evidence demonstrating that the defendants were guilty of war crimes. Moreover, the order did, in fact, provide terrorists the right to counsel. As such, the commissions would stand in stark contrast to the unfair and inhumane procedures sometimes used by other countries. In truth, the regulations compared favorably to the procedures used in Nuremberg and multiple other international tribunals.

  Other critics squawked that military commissions cannot be established without congressional authorization. History counteracted that false claim. We pointed out that the president’s power to establish commissions stems from his constitutional authority as commander in chief. An act of Congress is not necessary. Various presidents from both parties have used this authority, and the Supreme Court has upheld it.

  Despite our efforts to explain why military commissions mattered, especially in the post-9/11 world, challenges to the procedures soon showed up in the courts and from members of Congress. I knew it would be only a matter of time before the issue would land at the Supreme Court.

  I guess we could have expected criticism from the media, but I was disappointed when opposition flared by one of our closest allies.

  CHAPTER 19

  THE BRITISH REBELLION

  Many countries claimed to be with the United States in our efforts to combat terrorism, but our strongest allies in the war on terror were Great Britain and Australia. Together, our three countries understood the stakes, and government officials were prepared to go to extraordinary lengths under the law to track down terrorists, to thwart future attacks, and to protect each nation’s national security. John Ashcroft worked closely with his counterparts in London and Melbourne—Lord Peter Goldsmith and Daryl Williams, respectively—and occasionally I joined these discussions.

  Shortly after hostilities commenced in Afghanistan, coalition forces captured enemy combatants on the battlefield, including seven British citizens and two Australian citizens. The captives were processed in the same manner as those from other nations. Following our usual review of their files, these nine detainees were transferred to Guantanamo in anticipation of bringing them to justice in our military commissions.

  Ironically, both the British and the Australian governments wanted to have their subjects tried first in military commissions—that is, until the lawyers got involved. Lord Goldsmith was concerned that military commissions did not meet standards of international law. Consequently, he worried that British citizens—enemy combatants or not—would not be afforded due process under international law.

  The Australians, on the other hand, were comfortable with the procedures, but as a matter of ap
pearance, they felt they had to demand the same level of process that we provided British detainees. “The Australian people,” Daryl Williams contended, “will not look kindly upon their citizens being treated differently than British citizens.”

  In the summer of 2003, DOD officials, along with DOJ lawyers, provided the White House with documents that included a list of detainees at Gitmo whom they believed should be designated enemy combatants by the president and placed in line to receive justice through military commissions. These documents, contemplated in the president’s military order, were referred to as RTBs—for Reason to Believe—because the United States had reason to believe these detainees satisfied the legal definition of enemy combatants, had violated the laws of war, and should be tried in military commissions.

  On July 2, 2003, I met with the president to discuss the RTBs and to discuss where we were on military commissions generally. The group initially identified by DOD included several Brits, and the president was worried about the reaction from our friends in London. I agreed that the response might not be favorable, but suggested that we move forward with the package despite the probable outcry across the pond, then see whether we could work through our differences.

  The following day was a federal holiday, but most of the White House was working. When I received the package of RTBs for the president’s signature, I headed straight to the basement of the president’s residence. The secretary of commerce, Don Evans, and the deputy secretary of HUD, Alphonso Jackson, longtime Texas friends, were there waiting to see the president.