As the President’s chief legal advisor on policy questions, White House Counsel Alberto Gonzales convened an interagency group to investigate the matter. Led by Pierre-Richard Prosper, the ambassador-at-large for war crimes issues at the State Department, lawyers from the NSC, Defense, Justice, and State began exploring options for trying the detainees.
Some in the administration, however, felt the group was not working fast enough. It’s always a challenge to respond immediately to a crisis and simultaneously lay the foundations for new institutions and frameworks that adapt to that new reality. Hundreds of suspects were being captured on the battlefield in Afghanistan, and we urgently needed a legal framework in place to try them. But that need for urgency does not, in my mind, excuse what happened next.
On the evening of November 13, 2001, I learned that the President had signed a military order earlier that day that I had not even been given. The order directed the Defense Department to establish military commissions to try detainees and issue guidance on procedures that would govern them. I did not object to the substantive arguments behind military commissions; they had World War II–era precedents, and they seemed to resolve some of my own concerns about the protection of our intelligence-gathering methods.
What I couldn’t accept was the circumvention of the President’s top national security officials. The interagency process exists to ensure that all perspectives are represented so that the President gets a comprehensive look at the potential impact of his decisions. Colin apparently first heard about the order through CNN. The attorney general, the nation’s chief law enforcement officer, was reportedly concerned that the Justice Department would be given no formal role in the process of setting up the tribunals and had the chance to raise his objections to the draft only days before the President signed it. Perhaps a more thorough review would have brought to the surface some of the procedural challenges that led the Supreme Court to halt the commissions in 2006. We will never know for sure, but that is why vetting of controversial ideas is important.
When I learned what had happened, I went to see the President. “If this happens again,” I said, “either Al Gonzales or I will have to resign.” The President apologized, but it was not his fault. Al Gonzales and I were friends, and I respected him. But in that case I told the President that the White House counsel and the Vice President’s office had not served him well.
Then there was the question of where to hold the overwhelming number of people who were being captured on the battlefield. There was no secure location in which to detain them, and no one wanted to risk their escape in the still-volatile environment of Afghanistan—or in the U.S. homeland. The Vice President was, as I remember it, the one who suggested that we find an “offshore” facility. That would become the detention center in Guantánamo Bay, Cuba, which had the advantage of being administered by the United States but not on U.S. territory. The overwhelming consideration was to make sure that those dangerous people were not in the U.S. homeland only months after 9/11. There was no disagreement at the Principals level with the decision to establish Guantánamo, although there was some sparring about who would pay. The Defense Department eventually got the bill.
The military commissions debate raised a larger question of how the detainees were to be treated and what protections they were entitled to under international law. At the center of the debate was the applicability of the 1949 Geneva Conventions, a series of four treaties that address the treatment of armed forces and civilians in combat. The Third Geneva Convention sets basic standards for the treatment of prisoners of war, and Common Article 3, a provision common to all four treaties, states that individuals not otherwise covered by the conventions should at minimum be treated humanely and protected against “outrages upon personal dignity.”
In a process coordinated by the White House Counsel’s Office, the Justice Department was asked to evaluate whether the Geneva provisions would apply to our conflict with al Qaeda and the Taliban. In January 2002 the Justice Department’s Office of Legal Counsel presented its conclusions. It argued that al Qaeda detainees were not entitled to prisoner-of-war status under Geneva because, as a nonstate, violent political movement, al Qaeda could not be party to a treaty between nations. There seemed to be general consensus among the NSC Principals on that point: al Qaeda operatives were not lawful combatants in the traditional sense of the term. They did not represent a state that was party to the convention; they did not wear uniforms; and they attacked civilians with impunity.
Disagreements became more marked on whether any Geneva provisions would apply to other detainees, particularly the Taliban. The Justice Department had concluded that Taliban prisoners were not entitled to prisoner-of-war status; that the President had the authority to suspend Geneva in its conflict with Afghanistan; and that Common Article 3 of the conventions would not apply to the detainees. The President had accepted the Justice Department’s conclusions and was preparing to issue an order to that effect when Colin Powell, who had been traveling in Asia, raised some concerns. He was particularly worried about the policy consequences of determining that the Geneva Conventions would not apply to a conflict with a signatory such as Afghanistan. I made sure that the President knew that there was an objection, and Colin presented his case at a National Security Council meeting with the President in the chair.
The resulting presidential memorandum on the treatment of detainees attempted to bridge the differences between his principals. The President decided that the Geneva Conventions provisions would apply to the conflict in Afghanistan but accepted the Justice Department’s legal conclusions that neither al Qaeda nor Taliban detainees could qualify for prisoner-of-war status or the protections under Common Article 3. He nevertheless stated that “As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.” The Supreme Court subsequently reversed the administration’s legal judgment on Common Article 3 in 2006.
BY THE END of the year, I felt that we were getting our bearings. The war in Afghanistan was going well, and we were working with the international community to create a functioning Afghan government. Under the auspices of the United Nations, members of Afghanistan’s ethnic and political groups met in Bonn, Germany, to develop a plan for national reconciliation and the establishment of a fully representative national government. Over the course of the eight-day negotiations, delegates to the conference agreed to form an interim administration that would oversee the governance of Afghanistan until a loya jirga, a representative assembly of Afghan tribal leaders and ordinary citizens, could be convened to form a transitional government and draft an Afghan constitution.
To lead the interim administration, the delegates at Bonn selected Hamid Karzai, a Pashtun leader from Kandahar. He had led an internal resistance force against the Taliban in its southern stronghold during Operation Enduring Freedom, so we believed that the Afghans had selected a credible partner with whom the United States could work. My initial impression was largely affirmed by our first meeting in January 2002, when he attended the State of the Union address. Six months later, Karzai would be elected president of the country by a loya jirga that established Afghanistan’s transitional government.
The Agreement on Provisional Arrangements in Afghanistan Pending the Re-Establishment of Permanent Government Institutions, also known as the Bonn Agreement, created an International Security Assistance Force (ISAF) to secure the environment in and around Kabul and to assist Afghans in establishing and training the country’s national armed forces. The UN Security Council endorsed the Bonn Agreement and authorized the formation of ISAF on December 20, 2001. Two days later power was officially transferred to Afghanistan’s interim administration, setting the country onto a path—not without its difficulties—toward representative governance.
With the political transition unfolding, we also devoted a great deal
of attention to stabilization and reconstruction efforts in Afghanistan, working to enlist the support of the international community and making sure we got it right on the ground. At a donor conference in Tokyo in January 2002, more than sixty countries came together to pledge $1.8 billion to that year’s reconstruction effort. Of the total, the United States contributed almost $300 million. Those funds went to a variety of vital short- and long-term needs in Afghanistan, including emergency humanitarian relief, road construction, women’s programs, health, and education. Reconstruction efforts were important to achieving our ultimate goal, which was to empower Afghans and assist them in acquiring the capability to help themselves. But the truth is, it was more often construction than reconstruction in Afghanistan. And we were building on the weak foundations of an economy dominated by corruption and the narcotics trade.
After 9/11 it was very clear that weak and failing states were a grave security threat to the United States. They could not control their borders and risked becoming safe havens for terrorists. But rebuilding them was a monumental task, one for which the U.S. had inadequate institutions to integrate the military and civilian capabilities as such missions required. Finally, by late 2002, we developed a new model to help bring together the different pieces of the puzzle. Provincial Reconstruction Teams (PRTs) were designed to couple the military’s protective forces with civil affairs officers and civilian personnel who were experts in development and reconstruction. Together with our coalition partners, we set up a number of PRTs in the following months and deployed them to the far reaches of the country. Although the PRTs varied in their composition and activities, they all shared the same goal: to extend the authority of the central Afghan government and help provide security and development to the Afghan people. It was a step in the right direction, but we had a long road ahead.
THUS THE national security structures were slowly evolving to reflect the new demands of the daily war on terror. As an academic, my work centered on institutions, particularly military institutions: their birth and how they adapted (or failed to adapt) to changing circumstances. I’d written in line with a school of thought in political science called “the new institutionalism,” which held that institutions are created with jurisdiction over a set of issues and acquire expertise and competence to exercise that jurisdiction. But they also have traditions and norms—long-standing expectations of the way something ought to be done—that constrain their ability to adapt rapidly to change. When a new challenge arises, the immediate response is to try to handle it within existing structures; but sometimes what is needed is an entirely different set of arrangements.
My own work had focused on how militaries reacted to the mechanization of warfare after World War I and to the emergence of strategic (deep-strike) airpower and nuclear weapons during and after World War II. In some cases, new institutions, such as the air force and the Strategic Air Command (for nuclear weapons)—or, in the Soviet Union, the Strategic Rocket Forces Command—were born, but not without a fight from existing institutions and continuing overlap in functions. In some cases, for instance after World War I, institutional interests had forced bad decisions such as the integration of tanks into the cavalry in most countries. Germany (the defeated country) was the first to completely leverage the power of mechanization by creating separate, fully mechanized brigades.
I found myself, even in the midst of the daily turmoil after 9/11, reflecting on this problem as I watched the existing structures strain to cope with new challenges. The most serious institutional gap stemmed from the perceived absence of a homeland threat for almost two hundred years, suggesting that national security meant external security. The United States had military commands with responsibility for every part of the world but not for the United States. (Northern Command was created in October 2002 to fill that void.) Our Interior Department dealt with environmental preserves, parks, and Indian affairs. In most countries, though, it dealt with internal security, with a writ broader than the FBI’s law enforcement role. I’d actually considered creating a deputy for homeland affairs at the NSC when we first came into office. John Hamre, the president of the respected Center for Strategic and International Studies (CSIS), had briefed me on a commission report that made the suggestion. We decided instead to place homeland issues in the Directorate for Proliferation Strategy, Counterproliferation and Homeland Defense and kept the counterterrorism function separate under Dick Clarke. In retrospect, that was a mistake, though I doubt that it would have made a difference in the eight months before 9/11.
It was in that context that I welcomed the creation of dedicated homeland security institutions. The Vice President, Andy Card, and I conferred with the President the day before his address to the nation on September 20, 2001. He had decided to create a position for homeland affairs analogous to that of the national security advisor and asked Tom Ridge, the governor of Pennsylvania, to take the job.
The President sought to reassure me that it would mean no diminution in my role as the principal advisor on security affairs. He needn’t have worried; I had only to think back to that chaotic meeting on September 12, when agencies from transportation to energy to border protection to the U.S. Coast Guard had suddenly been necessary to secure the country. And what of the governors and leaders of municipalities who wanted to know what 9/11 meant for them and how responsibility would be apportioned between Washington and the states? The need for a new set of structures was crystal clear. I pointed out that we had to avoid the emergence of new seams between homeland and foreign policy. I was fortunate that the President chose Tom Ridge, who was a wonderful and dedicated partner. For the most part the Homeland Security Council and the National Security Council met in joint session on matters of terrorism.
The Office of Homeland Security was thus established on October 8, and the next day we appointed a new counterterrorism advisor, who would report jointly to Tom and to me. General Wayne Downing assumed that role, and Dick Clarke was moved to a position as special advisor to the President for cyberspace security. We established a Critical Infrastructure Protection Board as well, and Dick guided this important new effort to bridge the gaps between government and the private sector on this issue. It was a very good change.
NOT ALL of the institutional adjustments required new structures. When I became national security advisor, I was cognizant of the important role of international finance in foreign policy, one that was becoming increasingly important in the globalized economy. On February 13, 2001, President Bush issued his first National Security Presidential Directive (NSPD) and secured a regular seat for the treasury secretary at the meetings of the National Security Council. I was certainly glad that economic issues were represented at the NSC when the global financial crisis hit in September 2008, but I was even more grateful that we’d made the institutional adjustment before 9/11, because financial sanctions would become one of our most important tools.
In fact, the first strike in the war on terror was not military-led. On September 23, 2001, President Bush signed Executive Order 13224 to freeze terrorist assets and disrupt the flow of funds to terrorist organizations. Empowered by the executive order, John Taylor, the under secretary of the treasury for international affairs and a distinguished Stanford economist and friend, coordinated a unified counterterrorism policy among the G7, setting a standard for other countries to follow. The results were remarkable, and the level of international cooperation was unprecedented: 120 countries passed new laws on terrorist financing, and approximately 1,400 terrorist accounts with assets close to $137 million were frozen. The combined effort of the Treasury and our intelligence agencies to freeze and trace terrorist financing proved a powerful weapon in the war on terror.
Though it was important to cut off the terrorists’ money, the process of following the finance trail through shady hawala (remittance systems) and “charity” front networks often yielded information that was invaluable for capturing the perpetrators. The PATRIOT Act added additional instrume
nts to our economic arsenal. Among its provisions was Section 311, which enhanced the Treasury Department’s ability to prevent, detect, and prosecute international money laundering and the financing of terrorism. Entities designated as being “of primary money laundering concern” under this provision faced economic sanctions and isolation from the U.S. financial system.
Those financial tools were useful but by no means sufficient. The fact that every day began with a review of a terrorist threat report that was pages long reinforced for us the precariousness of our situation. We all had the overwhelming sense that we were still one step behind the terrorists and in danger of another successful attack. There had indeed been close calls. On December 22 an airplane passenger, Richard Reid, had hidden explosives in his shoes that had fortunately failed to detonate aboard a commercial flight from Paris to Miami.
The PATRIOT Act had expanded the tools that the FBI and other agencies could use to fight terrorism. It helped eliminate the wall between law enforcement and intelligence officials by easing restrictions on information sharing that had prevented effective counterterrorism cooperation prior to 9/11. But the President sought to do more, and he asked his top security officials to give him more aggressive options.
The appeal sometimes resulted in good ideas with significant downsides. Attorney General John Ashcroft brought forward the possibility of greater involvement of local law enforcement officers in reporting suspicious activities and people. In general, this was fine, but when taken to the extreme it could result in overzealousness by local officials, who lacked proper training in the identification of actual terrorists—including what one might look like. As John described some of the ideas one day in the Situation Room, I felt the need to slow the momentum toward acceptance. “Mr. President,” I said, “you and I come from parts of the country where you might want to be careful in empowering local sheriffs in this way.” Enough said. The President noted that he didn’t need every sheriff trying to win the Medal of Freedom in the hunt for terrorists. I felt badly because I thought that I might have embarrassed John. I called him that afternoon, and he jokingly said that he should have thought about how it sounded. “There are some places where I come from where you’d want to be careful too,” he noted.
No Higher Honor: A Memoir of My Years in Washington Page 14
