CHAPTER 40
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 sums 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.”4In 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.
We came to refer to this outside group, in shorthand, as the Wise Men. Though they were all wise, they were not all men. They included: Lloyd Cutler, White House counsel to Presidents Carter and Clinton, who had been a junior member of the 1942 team that prosecuted the Nazi saboteurs before FDR’s military commission; Bill Coleman, President Ford’s transportation secretary, a civil rights hero who was the first black law clerk at the U.S. Supreme Court; Bernard Meltzer, a renowned University of Chicago legal scholar, who served as one of the prosecutors at the Nuremburg war crimes trials; Griffin Bell, attorney general for President Carter; Newt Minow, a distinguished Chicago attorney, who had served as President Kennedy’s chairman of the Federal Communications Commission; Martin Hoffmann, a former DoD general counsel and former secretary of the Army; Terry O’Donnell, a veteran Washington attorney and former Air Force judge advocate general; Bill Webster, who had been director of the CIA and director of the FBI; and Ruth Wedgwood, a former federal prosecutor and law professor at Yale and the Johns Hopkins School of Advanced International Studies.
This bipartisan group was not of a mind to rubber-stamp any proposal sent their direction. They were individuals of independent judgment who often disagreed among themselves. They worked closely with Pentagon lawyers to consider precedents, review the legal basis for the commissions, advise on the rules of evidence and procedure for the trials and appeals, and offer comments and criticism regarding all aspects of these complex issues. We were determined to create a process considerably more protective of the rights of the accused than any previous military commission in our nation’s history.
Standing together with the Wise Men, I announced Military Commission Order Number One on March 21, 2002. Among the protections provided for defendants were: the defendant was presumed innocent; the defendant had rights to counsel and to a public trial; and guilt had to be proven “beyond a reasonable doubt” a two-thirds vote of a military commission was required to issue a guilty verdict, just as in military courts-martial under the Uniform Code of Military Justice; and a death sentence would require the unanimous agreement of the members of a commission.7
The first reviews were favorable. “The regulations announced yesterday by the Pentagon incorporate the advice of outside experts and respond to important issues raised by legal and constitutional scholars,” the New York Times acknowledged on its editorial page. “When President Bush first issued the order establishing the tribunals last November, critics, this page included, were concerned about potentially secret trials, inadequate legal representation, verdicts based on flimsy evidence and death sentences imposed by divided panels. The regulations issued yesterday dispel many of these fears.”8 Bill Safire also wrote that he was “somewhat reassured by Defense Secretary Don Rumsfeld’s ‘refinement’ of the hasty order.”9
I asked Deputy Secretary Wolfowitz to spearhead the effort to make the military commissions operable, but it took another year—until April 30, 2003—for lawyers to agree on the crimes that could be tried before military commissions. Everyone involved wanted to do things right—not fast—but President Bush and I found the lengthy delays disturbing. Whenever we expressed dismay at the excruciatingly slow pace, however, we were reminded by lawyers that we risked exerting “undue and improper command influence,” thereby corrupting the military commission process.
Despite the great care we took, some were uncomfortable with the military commissions system. It did not resemble the military’s courts-martial system with which military lawyers were familiar. Nor did it resemble the civilian courts with which most Americans were familiar. But the fact was the terrorists we were detaining were not American uniformed personnel to be tried under the Uniform Code of Military Justice. Nor were they garden variety criminals to be tried in American civilian courts. The fact that the detainees were different was exactly the reason the military commissions were different. The lawyers of the captured al-Qaida suspects, along with various groups critical of the war in Afghanistan (and later in Iraq) and of President Bush, mounted volleys of attacks, even before the commission rules were completed. As a result, the commissions came under a broad and sustained assault in the courts, in the Congress, and in the press. Yet no preferable alternative has been established almost a decade later.
As Secretary of Defense, I found myself named in a number of lawsuits. Many were frivolous.* Others dealt with some of the thorniest issues in constitutional law and reached the Supreme Court of the United States.
One of those cases was decided on Thursday, June 29, 2006. I arrived at the Pentagon shortly After 6:30 that morning, as usual. In those quiet early hours, when the building’s hallways were not yet buzzing with the twenty-five thousand men and women who worked there daily, I could take some time to try to catch up on the mountain of work and reading materials that flowed through the office. Prime Minister Junichiro Koizumi of Japan, an ebullient leader with a flamboyant persona and a passion for all things Elvis Presley, was arriving in town for meetings with President Bush. I liked Koizumi, as did the President. At 9:00 a.m. Joyce met me at the White House for the arrival ceremony for the prime minister on the South Lawn. Afterward, I joined the President in the Oval Office for the two-hour meeting with Koizumi on a range of issues in one of America’s most important bilateral relationships.
Meanwhile, a block east of the Capitol building, TV cameras and reporters were gathering to receive the latest set of Supreme Court opinions. At 10:15 a.m., the court chambers fell silent as Justice John Paul Stevens began to read the holding in Hamdan v. Rumsfeld.10 His opinion had split the court 5 to 3. The case, involving a Yemeni detainee at Guantánamo Bay named Salim Hamdan, had worked its way through federal district and appellate courts and had reached the Supreme Court.† Though some journalists and others tried to belittle Hamdan’s importance by referring to him as “bin Laden’s driver,” intelligence officials considered him much more than that. He was thought to be a significant facilitator for senior al-Qaida leadership and an arms trafficker. Hamdan was caught in Afghanistan with a surface-to-air missile in his car trunk—odd cargo for a mere chauffeur of little importance. Hamdan had filed a habeas corpus petition, the means by which a prisoner can challenge the basis of his incarceration. Given that Hamdan was neither an American citizen nor apprehended on U.S. soil, I thought his was a creative filing to say the least. In his lawsuit, Hamdan had identified several officials as defendants in addition to me, including President Bush and the military commander at Guantánamo, Brigadier General Jay Hood. As the first named defendant, I earned the dubious distinction of being identified in the shorthand title of the case: Hamdan v. Rumsfeld.
The Bush administration’s decisions to hold detainees without automatic access to the U.S. court system, to classify them as unlawful or unprivileged enemy combatants (not legally entitled to the POW privileges of lawful combatants), and to use military commissions were based on more than two centuries of American precedents. One was the 1942 case that upheld the constitutionality of FDR’s use of military commissions.11 It made clear that individuals engaged in armed hostilities against the United States and who do not themselves obey the laws of war with respect to uniforms, command structure, and the targeting of civilians, are “unlawful combatants” who can be tried and punished in military—rather than civilian—courts.12 In another case, the Supreme Court held that German nationals who were tried abroad by military commissions were not entitled to American judicial review.13 The Court concluded that it did not have jurisdiction to consider claims by alien enemies not held on U.S. soil.
But as we soon learned, that long-established and well-regarded legal foundation could not withstand the startling earthquake produced when American federal courts began to shift the legal ground regarding detainees and the laws of war. In 2004, the Supreme Court began handing down its first war on terror decisions.* They were not total defeats for the government’s positions, but they reflected a new and unprecedented judicial willingness to reverse a president’s wartime detention judgments.
As we departed the President’s meeting with Prime Minister Koizumi that June morning in 2006, an aide told me that the U.S. government had lost its argument in Hamdan. No one seemed to be able to explain what exactly that meant, but it was clear it wasn’t good. To me it sounded like I would be the first secretary of defense in history to lose a case in the Supreme Court of the United States to a terrorist. As we later learned, six of the nine justices issued separate written opinions on the case.14 After several senior attorneys had sorted through the main opinion, the two concurring and the three dissenting opinions, they concluded that the case amounted to a staggering blow to the military commission system, as well as to the administration’s legal positions on which wartime detention operations depended.
In one of the stranger portions of the Hamdan opinion, a majority of justices also concluded that Common Article 3 of the Geneva Conventions applied to the conflict with al-Qaida. Common Article 3 established rules for detainees in armed conflicts “not of an international character.”15 I was informed that the phrase had long been understood to refer to civil wars fought within the territory of a single state. In early 2002, administration lawyers had advised the President that Common Article 3 did not apply to the global conflict with al-Qaida. Now, Common Article 3 was deemed by the Supreme Court to apply to that conflict, even though al-Qaida is an organization, not a state, and was not a party to the Geneva Conventions, and even though the conflict is of an international character.
Though I didn’t follow the novel reasoning of the Supreme Court majority in Hamdan, I agreed fully that there should be a proper standard of care for all detained enemy combatants, even those not technically entitled to POW privileges. Had a standard beyond humane treatment, such as Common Article 3, been established as a matter of policy earlier, the administration might have avoided the sweeping setback that Hamdan represented. It is possible that we would have come to a better outcome had we approached the issue as a policy matter to be decided by policy makers with legal advice, rather than viewing it as a legal matter to be determined by lawyers.
I had already begun to reorganize the Defense Department to reflect this concern After the abuse at Abu Ghraib came to light, by creating a senior policy position and a unit on the Joint Staffsolely responsible for detainee affairs. I also asked a former Democratic congressman from Texas and future secretary of the Army, Pete Geren, and Army Lieutenant General Michael Maples to head up a task force to ensure we were better prepared to handle detainee issues moving forward. They carefully reviewed the reforms and recommendations suggested in twelve independent reports on detention operations, and the Department proceeded to implement over four hundred of them. After the Hamdan decision, the Defense Department informed all military personnel that Common Article 3 would apply to the country’s war against terrorist organizations. We issued Defense Department Directive 2310. 01E, which incorporated Common Article 3 of the Geneva Conventions verbatim.16 The Army Field Manual on interrogation was rewritten to ensure that the standards were compliant with the Geneva Conventions. I knew how important the field manual was and insisted that senior officials in the Department read it carefully and submit edits where they didn’t agree.17 The results were evidently good enough for it to become a gold standard; it was even passed into law by Congress.
The Supreme Court’s invalidation of the military commission system necessitated congressional action. Some four months After the Hamdan decision, Congress passed the Military Commissions Act of 2006. The legislation, signed into law by the President, included a statutory definition of “unlawful enemy combatant,” established military commissions to try foreign nationals who met that definition, set forth processes and procedures for the commissions, and created various avenues for judicial review.*
American courts had been historically reluctant to second-guess the President and the Congress regarding the use of military force—even during controversial conflicts. Throughout America’s involvement in Vietnam, for example, the Supreme Court refused to consider challenges to the war’s constitutionality. The Supreme Court had been especially cautious when it came to the detention and trial of foreign enemies overseas. In the 1950 case of the Germans tried by military commission, Justice Robert Jackson, who had served as Franklin Roosevelt’s attorney general and as the chief prosecutor at the Nuremburg trials, explained the reasons for this sensible policy. Jackson wrote that extending to our enemies the right to judicial review in American courts of law “would hamper the war effort and bring aid and comfort to the enemy.” Such trials, Justice Jackson presciently asserted,
. . . would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States. Moreover, we could expect no reciprocity for placing the litigation weapon in unrestrained enemy hands.19
Jackson’s reasoning, which prevailed in 1950, reflected what I believed. But by 2008, Jackson’s thoughtful predictions were brushed aside by judges and an almost hysterical campaign by NGOs, detainee lawyers, and academics. Their arguments are impractical as a security matter, inverted as a moral matter, and unprecedented as a legal matter. By proving persuasive to many, even to some members of Congress and some judges, including a bare majority of the Supreme Court, these activists have successfully placed “the litigation weapon” in the hands of our enemies.
As never before in history, today lawyers and legal considerations pervade every aspect of U.S. military operations. Besides contending with enemy bullets and bombs, the men and women in our nation’s military and intelligence services must also navigate legal traps set by our enemies, by some of our fellow citizens, by some foreigners, and even by some members of Congress and officials at international institutions such as the United Nations. The rules, regulations, and consequences in legal venues have to be and are taken into account on every corner of the battlefield. American military personnel have found themselves named in lawsuits across Europe and in the United States. The mere threat of lawsuits and legal charges effectively bullies American decision makers, alters their actions, intimidates our security forces, and limits our country’s ability to gather intelligence and defend the American people. This is a new kind of asymmetric war waged by our enemies—“lawfare.”
Lawfare uses international and domestic legal claims, regardless of their factual basis, to win public support to harass American officials—military and civilian—and to score ideological victories.20 Each legal action is a thread. The cumulative effect binds the American Gulliver. Enemies who cannot score military victories can nevertheless impair our defenses by litigating warfare. Lawfare is particularly effective against the United States, because it exploits America’s laudable reverence for the law and uses our own finest instincts and institutions—our very respect for law—to make us vulnerable to enemies who have nothing but contempt for those very instincts and institutions.
We cannot yet know what the full consequences of lawfare will be, but the trend is troubling. At home, judges—not elected representatives in Congress or in the executive branch—increasingly determine how a president can operate during wartime against our nation’s enemies. Terrorists have been given legal privileges and protections they are not entitled to by any standard. They violate nearly every law of war, yet our courts now perversely award terrorists more rights than any of our traditional military enemies have had throughout our country’s history. As a result, whenever and wherever American military personnel capture suspected terrorists, they must assemble evidence and facts to be ready to defend their actions, not only up the military chain of command but in courts of law, in addition to defending themselves in combat.
I received my first lesson in lawfare from a friend who had several close encounters with its spear point. In 2001, Henry Kissinger told me that when he traveled abroad he still faced threats of legal action for his work as secretary of state in the Nixon and Ford administrations three decades After the fact. Various critics have alleged he was complicit in war crimes and other offenses from Southeast Asia to South America.21 This dedicated public servant and Nobel laureate has had to live with periodic threats of arrest resulting from the action of some rogue magistrate or grandstanding prosecutor—not in the nations of America’s enemies, but in Europe, in countries with whom the United States is allied.
I came to appreciate keenly the dangers of lawfare during my second tenure as secretary of defense. In the spring of 2003, General Franks was named in a lawsuit brought before a Belgian court for his role in the Iraq war. The Belgian parliament had passed a law in the 1990s giving their nation’s courts the jurisdiction to try war crimes, genocide, and other crimes against humanity wherever they were committed in the world. This concept of universal jurisdiction asserts that any court, anywhere in the world, could put American citizens—military and civilian—on trial if the alleged offense is described as a violation of international law.* But we knew that what was claimed as international law was sometimes nothing other than the assertion of a hostile foreign critic perched on a judicial bench, or at a university, or within an activist political organization.*
Someone like General Franks, even After he retired from uniform, could be arrested and hauled into a Belgian court at any time. I realized something else as troubling: Any American on Belgian soil was vulnerable to criminal prosecutions—prosecutions that easily could be motivated by nothing more than opposition to U.S. government policy. Hundreds of U.S. military personnel were stationed at NATO headquarters, including the American supreme allied commander and his staff. Thousands more American servicemen and-women transit through Belgium every year, making them ripe candidates for those wishing to harass them with lawsuits and arrest warrants alleging war crimes.
It was one thing if the Belgian government wished to express opposition to the war; it was quite another for their judges to be able to haul American military personnel into their courts for what would amount to little more than political show trials. Belgium’s power to do this infringed on American democracy, by subordinating our government—our officials and our country’s policies—to a foreign government or organization that is unaccountable to the American people. The more I considered the Belgian law, the angrier I became.
At a NATO defense ministers meeting on June 12, 2003, I made my views known. I walked up to Belgium’s minister of defense, Andre Flahaut, and asked to see him in a side room.
“I need to speak with you for a moment,” I said.
Flahaut, a Socialist member of the Belgian parliament, and his left-leaning government were frequent critics of the United States. It was impossible to imagine them being overly concerned about grandstanding Belgian lawyers lodging suits against American military personnel and officials.
In language that diplomats might describe as a “frank and full exchange,” I raised my concerns about the Belgian law. I told Flahaut that I believed it would be used by judges to target U.S. intelligence and military personnel, not dictators guilty of actual war crimes. I didn’t recall the Belgians making any effort, for example, to arrest and try Saddam Hussein.
The urgency in my tone was unmistakable, especially when I made what seemed an obvious point. The Belgian government was justifiably proud of serving as the headquarters of NATO, the world’s oldest military alliance. But it was worth noting that the reason NATO was located in Brussels was because French President Charles De Gaulle had forced the alliance out of France in 1966. If Belgium was going to enforce a law that made its own territory similarly inhospitable to Americans, I asserted, there was no reason why we could not move NATO’s headquarters again.
“It’s perfectly possible to meet elsewhere,” I said to Flahaut and, later that day, to the press.23 There were plenty of other cities between Washington and Ankara.
Flahaut was counting on U.S. funding for a new NATO headquarters in Brussels. I added that American support would evaporate instantly absent a prompt shift in the Belgian government’s position.
The difference in style between a Chicago-born American and a member of the European diplomatic corps was on full display in that conversation. From his demeanor I could tell he fully understood my point. Within two months of that conversation, the Belgian government repealed their law.
Belgium was not alone in threatening American sovereignty with lawfare. The International Criminal Court (ICC) was proposed in the 1990s as a court for crimes against humanity, genocide, and systematic war crimes. By 2003, the ICC was being discussed as a possible forum to try U.S. military and civilian personnel involved in the Iraq war. The American military had objected strongly to the ICC treaty for these reasons in the 1990s, and the Clinton administration, as a result, refused to sign it until the last days of the President’s term. Even After he signed it, Clinton did not submit it to the Senate, where its prospects for ratification—necessary for the treaty to become U.S. law—were bleak.
In the Defense Department we saw the International Criminal Court as a potential lawfare weapon against the United States. One aspect of the treaty that made the court so objectionable was that it would create offices for prosecutors who were effectively unaccountable—even if they acted politically or otherwise improperly—who could prosecute Americans without respecting their rights under the U.S. Constitution. With some State Department officials less than enthusiastic about the idea, I pushed for the U.S. government to “unsign” the treaty. In May 2002, a State official who agreed with our position on the issue, the tenacious undersecretary for arms control and international security John Bolton, formally announced that the United States would not ratify the treaty.
Even with Bolton’s support, I was concerned that our government was not paying enough attention to this issue. With the help of Jack Goldsmith,* an expert on international law then working in the Defense Department general counsel’s office, we prepared a memo in April 2003 that I sent to Cheney, Powell, Ashcroft, Rice, Card, and Gonzales, observing:
Last August I urged us to address several disturbing trends in international law, including the ICC, universal jurisdiction prosecutions, and the broader judicialization [sic] of international politics and warfare.
I am concerned that this deliberation is not proceeding with appropriate urgency.
There may be a sense that this is “just Henry Kissinger’s problem.” This is a serious miscalculation. Universal jurisdiction prosecutions are expanding in Europe and elsewhere. The purported content of international criminal law is growing in various unfavorable ways. Just a few weeks ago, a complaint was filed in Belgium against senior U.S. officials growing out of Operation Desert Storm. It is only a matter of time before there is an attempted prosecution of a U.S. official.
There may be a sense that these issues should be shelved during the Iraq matter. On the contrary, the prospect of controversial war should alert us to what all U.S. officials may face.
Our strategy with respect to the ICC seems to be getting nowhere. We have only a handful of Article 98 agreements, and no realistic prospect for significantly more in the near future. Meanwhile, the ICC proceeds apace.
I believe we must quickly develop a campaign to discredit and counter these trends. Attached is a proposal for a more robust strategy to deal with these issues. I suggest we discuss the matter soon.24
The fact that the United States was not a party to the treaty and had unsigned it was not enough to protect American servicemen and-women. I had launched a global campaign to obtain commitments—in the form of what were called Article 98 agreements—from over one hundred nations that they would agree to never surrender Americans into ICC custody.* Defending those who have volunteered to serve our country in uniform and in our intelligence services is not only the right thing to do in principle, it is necessary to protect America’s sovereignty—our nation’s right to self-governance.
I think of sovereignty in concrete terms. It is a matter of freedom and autonomy. It means that we Americans control our destiny and are not ruled from abroad by officials we did not elect and courts we cannot hold accountable. Sovereignty is integrally tied to democracy, the right of Americans to choose their own leaders, to make their own laws, to limit the powers of government, and to enjoy due process of law.
If unchecked, the growing international judicial encroachments on our sovereignty will encourage an unfortunate and harmful trend toward American isolationism. If U.S. troops and officials can increasingly be tried in foreign courts, many Americans may well decide that sending our military on humanitarian missions, aiding allies, or defending our interests abroad is not worth the risk. Victims of tsunamis and earthquakes overseas could no longer depend on American assistance. Would-be aggressors could take advantage of our reluctance to use our military forces. Lawfare’s greatest casualty will likely not be any one American official or serviceman. The greatest casualty will be the loss of America’s willingness to use our military as a force for good around the world.