When the president arrived, he and I went into the Diplomatic Reception Room in the residence where he signed the RTBs. “This is historic,” I told him. “No president since World War II has done this.”
He looked at me and quipped, “No lawyer has recommended it since World War II.”
The reaction from the British was swift and predictable. A few days later, Colin Powell reported that the British foreign secretary had conveyed his serious concern. “The British fought side by side with the United States,” Powell said, repeating the foreign secretary’s comments. “The United States should treat British citizens as they treat their own. Otherwise, the United States should return the British detainees to the United Kingdom.” But they gave us no assurances that if we returned their citizens that they would ever be tried.
Nevertheless, Secretary Powell said the British insisted on five conditions for British detainees who might stand trial: (1) no death penalty, (2) access to lawyers, (3) open trials, (4) promise of release after serving sentences, and (5) unfettered communication between their government and the British detainees.
By July 10, the British were demanding the return of the British detainees, but they continued to refuse to promise that they would be brought to trial in the United Kingdom. As an alternative, they insisted on procedural changes in our military commissions. I worried that such changes would result in a commission different from the Roosevelt order, and thus different from the precedent of the Supreme Court. I also was concerned that changing our procedures might cause the commissions to look more like a criminal proceeding. That would defeat the whole purpose for the creation of the commissions in the first place. Federal judges who saw a trial that looked like a traditional criminal matter might be less inclined to defer to the president’s wartime decisions.
I felt the pressure to get the military process up and running. Although it was a DOD process, the president questioned me repeatedly, “Why have there not been any military commissions?” He was clearly frustrated by the legal machinations and wanted to see some action.
I called Jim Haynes at DOD and said, “Jim, it would be helpful to our relationship with the international press and community to have the British government embrace the commissions.” I asked Jim to look at additional assurances such as independent judicial reviews, use of civilian lawyers, open hearings, and access to all witnesses—basically looking for some way to satisfy the British demands. I knew we were stuck. “Jim, this is what the Brits want. See what you can do.”
Meanwhile, the Australian government remained cooperative. The attorney general and foreign minister had both made supportive statements about the commissions, but they acknowledged Great Britain’s concerns. They asked that we put the process on hold regarding the Australian detainees until we worked things out. More delay. I knew my boss would not be happy.
Indeed, after an NSC meeting on July 14, Condi confided to me that the president was seriously considering returning the British detainees. Prime Minister Tony Blair, who had previously supported military commissions for the British detainees, was now getting clobbered in the British press and had apparently asked Bush personally.
I wondered how the return of the Brits would affect other countries and their detainees. Should we insist that in exchange for a transfer of a detainee we would receive a guarantee that the home country would agree to bring the detainee to trial? I had learned later that even in Great Britain the decision was not unanimous. In fact, the home secretary had fought hard to comply with the US standards, but ultimately he was rolled by the British attorney general, Lord Goldsmith.
Over the next week, my office continued our work on developing a process to return detainees to their home countries. I suspected the president wanted to clear out as many detainees as possible from Guantanamo so we could begin military commissions, yet no one seemed in a hurry to deal with the British detainees.
Despite Condi’s earlier comment to me, the president continued to urge us to talk to the British and reach an accommodation on our procedures. Jim Haynes traveled to London twice for day-long meetings to help facilitate that process, and I conducted several phone calls with Lord Goldsmith and met with him during his visits to DC; we did make some accommodations to what he wanted.
On July 30, I met with the president and Andy Card in the residence. I explained that while we had made progress, we had reached an impasse on Goldsmith’s demand that there be an independent review panel that would examine the decisions of military commissions.1 “What Goldsmith wants,” I speculated, “is for our courts to hear appeals of the decisions made by military commissions, and we are stuck there.” I mentioned that Tony Blair might call President Bush about the matter.
I reminded the president that we had modeled our commissions on the Roosevelt precedent to create two independent sources of justice—both constitutional but independent of each other. To accommodate Lord Goldsmith’s request would require a fundamental change in the structure of our military commissions. That would be dangerous for the United States, according to what OLC had advised me. Goldsmith’s request would essentially merge the two legal frameworks that we wanted to keep separate. It would invite more legal challenges and encourage judges to view commissions as merely an adjunct to our criminal courts. Everyone at OLC with whom I had discussed this matter insisted this was a serious danger.
The president understood. “Work something out,” he said. “Find a bridge for now.” That seemed to be his favorite advice to me these days: find a bridge, by which he meant find something that would work for the time being so we could buy some time.
“Well, sir, we probably won’t be able to reach an accommodation,” I said. “I recommend the Brits take their people, rather than making the structure changes Goldsmith wants.”
The president asked me several more questions about possible alternatives and pressed me on the importance to the United States of maintaining the structures.
A couple of days later, the president mentioned to me that he had told the British the review panel was a problem for us. He had spoken to Tony Blair and told him that unless their terrorists were taken back to the United Kingdom, Blair would need to talk with his attorney general and, presumably, “straighten him out.” Bush was pitching the ball back to Blair.
I continued working on this matter while the commissions remained on hold. The delay was fine with the British. We continued to hold their people in Guantanamo, so they were in no rush, but I pushed to get the matter settled one way or the other.
On September 5, I had another of many 6:30 a.m. telephone conversations with Jim Haynes about the Brits. Jim told me that he had sent them large amounts of material about the British detainees and these were being reviewed. “The Brits are coming to Gitmo,” Jim said, “so they can talk to the British detainees.” They also planned to meet with DOD officials in Washington. This would be another in-person meeting with Lord Goldsmith. Jim reported progress on various fronts, but he did not see it going much further. Although he’d heard that Lord Goldsmith remained interested in resolving our differences, Jim was pessimistic. Eventually, Lord Goldsmith might back down, Jim suggested, since the home secretary and others thought it crazy to ask that the British detainees be returned. Officials at DOD felt that Goldsmith would somehow conclude that the commission’s procedures were fair, although he would probably not recommend them.
I wasn’t so sure. Peter was an extremely confident man and a good lawyer. His courtly manner provided the perfect disguise for the ambitious and savvy street fighter he was. I felt sure we still had a problem with him.
A month later, we were still negotiating. Goldsmith asked that the president be bound by a decision of a review panel. I saw that as another problem. Even review panels are not infallible and sometimes make mistakes. We might get a runaway panel that decided to reach beyond the merits of a case and focus on the war on terrorism itself; or a panel might choose to ignore findings or conclusions of a commission. A president
needs flexibility; he might have more information about the detainee or the overall threat situation than the review panel.
Perhaps we could assure the British that, absent extraordinary circumstances, the president would respect the will of the review panel, or at least represent to the British it would be unlikely the president would not follow the recommendation of the review panel. But to accommodate Goldsmith, we’d have to amend the president’s November 13, 2001, military order, and I preferred not to do that.
In early November, I discussed our concerns with Lord Goldsmith. Later, I met with the president, Andy, and Condi on the matter. I explained that we were prepared to give some assurances regarding (1) the fairness of the appeals process; (2) written submissions could be accepted; (3) it would be possible to get an extension from the review panel to consider appeals; and (4) we were willing to agree that all interlocutory appeals would go the review panel and not to the appointing authority.
I recommended to the president that we not agree to Goldsmith’s requests that (1) the president unconditionally honor and accept the review panel recommendations; (2) no part of the proceeding would be closed to the detainees or their civilian lawyers; and (3) the accused would have access to all material witnesses and materials. These concessions could easily compromise our national security.
Our discussions with the British continued, but I sensed that President Bush’s patience with them was approaching an end. The Brits were solid allies and we did not want to offend them, but the president was done. John Bellinger, our national security legal advisor, told me that on a secure video-conference between the president and Prime Minister Blair, the president repeated his offer for the Brits to take back the British detainees if they wanted them. Clearly, they didn’t want them. What were they going to do with the detainees? Incarcerate them? Try them? Let them walk? For the Brits, the detainees were a problem they didn’t need. After all, the terrorists were already in custody. It was an ironic standoff between allies.
On November 9, I had another frustrating conversation with Lord Goldsmith. He was as courteous as ever . . . and just as stubborn. I liked Peter and admired his character, even if I didn’t agree with his view of the law.
Peter informed me that the issue of the review panel was a red line for Great Britain. He recognized this was a difficult process, but if the review panel decisions were not binding on the president, it simply did not accord with his view of a fair trial. He acknowledged that our concerns were based on national security. To him, however, these would be criminal trials.
I was perplexed at Peter’s insistence that it was unfair for the chief executive to have the final say. As Jim Haynes had told him, we had inherited our military justice system from the English. How could they now complain that the English model was unfair?
Not to allow detainees or their civilian lawyers complete access to all evidence was also a red line to him—as it was to us. We wanted to be able to deny access when necessary to protect our national security. Goldsmith disagreed and said the deciding factor should be the issue of justice. Easy for him to say; he didn’t have three thousand recently murdered victims thanks to al-Qaeda. As far as I was concerned, our attempts at finding a resolution with the British were done, regardless of the fallout in our relationship. There was nothing else we could offer. The lawyers at OLC had warned me repeatedly that if we made the changes Goldsmith demanded, we would encourage US courts to view military commissions as nothing more than an extension of the criminal justice system. We refused to do that.
It was clear to me now that the British did not really want these enemy combatants returned. But at the same time, the status quo was unacceptable to them. So be it.
In January 2004, others in the administration floated the idea of trying only the British detainees in our criminal courts. Blair wanted something done.
The timing could not have been worse. We were arguing a case in the Supreme Court that enemy combatants should be tried in military proceedings and that the Supreme Court should not take jurisdiction of these claims by foreigners captured overseas on the battlefield. Our arguments would be undercut if we voluntarily afforded access to terrorists by bringing them into our criminal courts.
I hoped to push the decision regarding the Brits to the summer, simply because we had other issues that hopefully would be resolved favorably within a few months. I also believed that trying the Brits now in our criminal courts would be interpreted as our giving up on military commissions. Certainly, the Australians would insist on similar treatment. No doubt, every European country would want their nationals tried in Article III courts, and we couldn’t do this for the Europeans only and have the terrorists from Arab nations tried in military commissions.
I worried, too, that criminal trials would present serious challenges to our national security. Furthermore, we would be increasing the risks of having our intelligence sources and methods compromised during the legal discovery process. We now knew that this was no longer merely a hypothetical possibility to be debated by law school students. During the trial of Omar Abdel Rahman, the blind sheikh who led the attempt to blow up the World Trade Center in 1993, the prosecutors complied with standard criminal justice discovery procedures and handed over to the defense a list of two hundred possible unindicted coconspirators. The list was basically our best information on al-Qaeda at the time. Within days of the list’s introduction in court, it was in the hands of Osama bin Laden, who simply by looking at it could tell who among his ranks had been compromised, and worse yet, how US intelligence had learned the information.2
Thanks to the documents disclosed in public court, when bin Laden realized that the United States could intercept his cell phone calls and track his GPS location, he simply stopped using mobile devices.3
So the possibility of revealing more information during the trials of detainees was extremely dangerous. Even if security measures were stringent, we would still most likely be confronted with the same challenges over procedures and evidence that bedeviled us during the Moussaoui trial.
On February 7, 2004, I had another call with Lord Goldsmith. The British attorney general was accustomed to getting his way with the law. But so was I.
He wanted his citizens charged now (rather than simply leaving them in detention while decisions were being made), but doing so would undercut our argument in the Supreme Court case, while put into play discovery risks of our sources and methods, and jeopardize the entire military commission process. So we declined to charge them.
Now facing growing pressure from its media as well as the British public, the Brits asked us to return its detained citizens. I was disappointed by their decision, but relieved that President Bush had chosen to institutionalize policies that hopefully would long outlive his tenure in office. I also sensed that the president, Andy, and Condi were simply happy to get this problem off our plate. We did ask the Brits to keep the terrorists incarcerated, but of course, we received no guarantees they would. Consequently, we emphasized to them that if any of the returned terrorists reentered the fight against the coalition, that would be the Brits’ problem, not ours.
The Australian government had remained resolute throughout the long negotiating ordeal. They had been comfortable with our plans for military commissions to deal with detained terrorists, including ones who were Australian citizens. After Great Britain requested that its citizens not be subjected to military commissions, however, Australia insisted on similar treatment for its citizens.
The entire matter took an enormous amount of time and energy and resources for an extremely frustrating result with one of our strongest allies.4 Looking back, it was one of the more disappointing experiences I’d had since being in government.
It would not be the last.
CHAPTER 20
INTERROGATIONS FOR INTELLIGENCE
Twelve al-Qaeda operatives were sleeping in a two-story apartment building in Faisalabad, the third-largest industrial town in northern Pakistan, the nigh
t of March 28, 2002, when they were awakened by Pakistani forces raiding the safe house. Four young al-Qaeda fighters fled by leaping to the roof of a nearby building. In the firefight that followed, the leader of the group was severely wounded, shot three times in the thigh and groin.
When coalition troops searched the apartment complex, they found sparse living accommodations and an entire section of the apartment filled with computer equipment, an al-Qaeda treasure trove for our intelligence agencies. But the troops soon realized that they had captured something even more important than weapons and hard-drives: the wounded operative was none other than Abu Zubaydah, al-Qaeda’s number three leader, a name that had been all over our daily threat reports, ranking in importance only behind Osama bin Laden and Ayman al-Zawahiri. Zubaydah was the most important member of al-Qaeda that we had yet captured.
Our troops had the ironic task of trying to save a terrorist’s life to discover what he knew about plans for future plots and attacks. Because of his insider status with al-Qaeda, we were convinced that Zubaydah had information that could possibly save thousands of lives. The CIA officers who had been aiding the raid arranged for a special, chartered flight to whisk a world-class doctor from Johns Hopkins Medical Center to Pakistan, where he helped keep the killer from dying.1
Although we had Zubaydah, there was no consensus in the Bush administration about what we should do with him. Spirited discussions took place about how to mine the mother lode of information Zubaydah likely possessed. He was a tough guy, an al-Qaeda all-star. He was not likely to willingly give up information, squeal on his friends, or reveal future plots simply because we asked him. He was young and strong—physically and intellectually—with fierce inner fortitude. He was irrevocably committed to his cause. He had been responsible for training al-Qaeda recruits and was an expert at resisting usual interrogation methods. Simply asking him to be forthcoming would be a waste of time. Verbal threats weren’t going to affect him either. And using mind games and good-cop/bad-cop traditional law enforcement methods of convincing him to tell us what he knew would be useless. Similarly, the experts believed using interrogation under the US Army Field Manuals would be ineffective.
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