In policy terms, the Court’s conclusions regarding Common Article 3 actually had little effect on how detainees in U.S. military custody were treated. President Bush had determined early on that, as a matter of policy, all such detainees would be treated humanely and, where appropriate, in a manner consistent with the principles of Geneva. There was never any question on this issue. Furthermore, the ruling did not repudiate the use of military commissions outright—it rather struck down the tribunals in their current form and pointed toward congressional authorization as the key to establishing their legitimacy. In the immediate aftermath of 9/11, I supported the President’s decision to take every action that was deemed necessary and legal to prevent another attack. I believed then, as I believe now, that those actions saved American lives, both by removing enemies on the battlefield who were targeting U.S. troops and by generating intelligence that helped us identify and prevent potential terrorist attacks.
Yet early in my tenure as secretary of state it became increasingly clear that those policies were creating their own security challenges. Diplomatic relations with our allies, particularly the Europeans, were increasingly strained by the mistaken perception that the United States’ detention and interrogation policies operated outside the bounds of international law. Given the transnational nature of the threats, we depended heavily on our allies’ cooperation in intelligence gathering and battlefield operations. Even our closest ally, the United Kingdom, had expressed deep misgivings over the continued detention without trial of four British nationals in Guantánamo.
From my first days at the State Department, I was determined to act on the President’s desire to bring our policies into the light, frame them for the public, and gain legislative authorization for them. He had expressed a desire to do so when I was national security advisor, and now, as secretary of state, I could pursue them from the strength of my Cabinet position.
My legal advisor, John Bellinger, and counselor, Philip Zelikow, worked tirelessly through the interagency process to develop options for overhauling the administration’s detention policies. In consultation with Bellinger and Matthew Waxman, my former executive assistant at the National Security Council who was now serving as one of the Pentagon’s primary officials on detainee affairs, Zelikow and then-acting Deputy Secretary of Defense Gordon England authored a nine-page memorandum in June 2005 recommending that the administration seek congressional approval for its policies and formally accept as a matter of policy the minimum standards for detainee treatment articulated in Common Article 3 of the Geneva Conventions—two of the very reforms that the Supreme Court would ultimately require us to make a year later.
Additionally, the memorandum recommended that the Central Intelligence Agency transfer a small number of high-value detainees out of secret detention facilities that it operated overseas. Those so-called black sites had been established in the chaotic aftermath of 9/11 and had held terrorist suspects such as Khalid Sheikh Mohammed, the mastermind behind the 9/11 attacks, and Abu Zubaydah, who had provided information that helped lead to KSM’s capture. There had been precedent for the CIA’s overseas detention program: for decades the United States and other countries had used renditions to transport terrorist suspects from the country in which they were captured to other countries in which they could be held or questioned. By 2005, though, it appeared that detainees with little or no additional intelligence value could be transferred out of the CIA detention facilities to their home countries or to Guantánamo to await trial.
Gordon and Zelikow’s recommendations ran into stiff resistance from the Defense Department and the Vice President’s office. The memo apparently angered Don, particularly because his acting deputy had worked on it without his direct authorization. He also objected to taking over responsibility for the CIA detainees should they be transferred to Guantánamo. The Vice President’s staff opposed the formal adoption of Common Article 3 standards. Although the President had publicly committed to closing Guantánamo earlier that year, we couldn’t find a way to do so safely.
Ironically, one of the most debilitating aspects of those programs was the secrecy surrounding them. It was difficult to explain what we were doing and the protections that were in place if we couldn’t even acknowledge the basic facts of the situation. This contributed to misinformation and allegations that were not only untrue but had deadly consequences. In May 2005 Newsweek had published an article accusing U.S. soldiers at Guantánamo of desecrating a copy of the Koran by flushing it down a toilet. The story had turned out to be false, and Newsweek had subsequently retracted it—but not before it sparked violent protests against the United States in Afghanistan, Pakistan, and across the Muslim world. The riots left at least fifteen people dead.
In November 2005 the Washington Post ran a front-page story revealing the existence of the CIA’s secret overseas detention facilities, prompting a firestorm of criticism. The story appeared just a month before I was scheduled to fly to Berlin for a NATO meeting. I received panicked phone calls from my counterparts across Europe who had been summoned by their parliaments to answer allegations of complicity with the CIA. That led to a flurry of formal inquiries directed at me as secretary of state. “I hate to send this to you,” Margaret Beckett, the British foreign secretary, had said, “but I have no choice.” I reassured her and everyone else that I understood their predicament. But I also knew that it would be the only issue on the table when I landed in Europe. I had to address it head-on.
I called CIA Director Mike Hayden and told him I needed to say something substantive before leaving for Europe. The first draft that the Agency sent was far too coy, and I called Mike again. He promised to do what he could to be helpful. After we painstakingly negotiated the text, Sean McCormack called the press together at Andrews Air Force Base before my flight. That was highly unusual—I normally briefed the press on the plane—but we wanted the stories to circulate in Europe before I arrived.
Standing at the hastily arranged press conference, I delivered a statement to the press: “For decades, the United States and other countries have used ‘renditions’ to transport terrorist suspects from the country where they are captured to their home country or to other countries where they can be questioned, held or brought to justice.” I made clear that, “In conducting such renditions, it is the policy of the United States, and I presume of any other democracies who use this procedure, to comply with its laws and comply with its treaty obligations.”
I had hoped that my statement would be enough to satisfy the press’s inquiries. On the plane, however, reporters continued to question me about the CIA’s secret sites and tried to get me to confirm whether they existed. I found myself in a bind: I wanted to discuss the administration’s policies, but any answer would ultimately force me to reveal classified information that had not been authorized for release.
“I can’t continue to stonewall on this,” I said to my staff. “I have to be able to acknowledge the CIA’s practices so I can explain them.” I called Steve Hadley in Washington, and he got the President and the NSC Principals to agree on an approach that would allow me to say that as a matter of U.S. policy our international obligations “extend to U.S. personnel wherever they are, whether they are in the United States or outside of the United States.” The statement hinted that the CIA was indeed operating facilities overseas.
In Europe the statement was big news. I defended our practices vigorously because I believed in them. And I made headway because I reminded everyone that such intelligence operations were not unique to the United States—and that the information gathered was used to defend them, not just us. “If you don’t learn what terrorists are planning, thousands of innocent people die,” I said. “This isn’t like law enforcement, where you punish the crime after the fact.”
The Belgian foreign minister Karel De Gucht held a dinner that night before a NATO ministerial meeting. “Don’t worry,” he said, “I will make sure this issue doesn’t dominate by telling people that
we will address it at the end.”
“No,” I said, “we’ll address it at the beginning.” When Karel gave me the floor, I said, “An eight-hundred-pound gorilla is sitting in the middle of Karel’s lovely table. Let’s talk about the detainee issues. I’m prepared to stay here until everyone has had his say.” It was cathartic and open. After the session, we were on better footing with our allies. They might not have agreed with everything that we were doing, but they no longer felt that it was out of arrogance or disregard for international norms. The next day several media outlets noted that I had made some progress on the issue. And when I returned to Washington, a well-known left-leaning journalist said to me, “You play two deuces better than anyone I know.”
The Hamdan ruling six months later allowed us to go even further in pursuing the goal of establishing an improved legal framework for the war on terror. A principal problem with the military commissions, the Supreme Court argued, was that Congress had not authorized their establishment. Although I was disappointed that the Supreme Court had struck down the military commissions in their current form, I was confident that by securing Congress’s authorization we could create an even more robust tribunal system that would both protect our intelligence operations and guarantee detainees certain due process rights. Steve Hadley was working on behalf of the President to get suitable legislation. I also felt that the Court’s ruling regarding the application of Common Article 3 to our detainees would at least reassure our European allies that we were indeed operating in ways that were consistent with international law.
So I was taken aback when, soon after the ruling, some members of the administration argued the President should support legislation that would essentially overrule the Court’s decision. Rather than seek Congress’s authorization to establish a military commission system, the President, they argued, should simply demand that Congress recognize his authority to do so on his own. That approach would effectively signal to the world that the administration did not even respect the opinions of its own Supreme Court on these matters, let alone those of its allies. “Mr. President, you cannot reverse the Supreme Court,” I pleaded at an Oval Office meeting to review the Hamdan decision. Ultimately, the administration worked with Congress to secure passage of the 2006 Military Commissions Act, which legislatively authorized the tribunals.
No one was trying to walk away from our decisions in the chaotic aftermath of September 11, most especially me. They had been made at a time when we had an opaque understanding of al Qaeda’s operations and its internal structure. Less than a month after 9/11 we were confronting anthrax attacks and later a smallpox scare, and many worried we were facing the first in a wave of threats against the American people.
By 2006 many of these facts had changed. We had gained a much better grasp of al Qaeda’s structure and future plots, in no small part because of the mechanisms we had put in place in the early days after 9/11. We had taken the fight to the enemy overseas, disrupting al Qaeda’s capacity to carry out attacks by denying its safe haven in Afghanistan.
Early in his second term the President decided that the time was right to revisit these decisions in light of the progress we had made in the war on terrorism. He and his top advisors well understood that national security decision-making inevitably requires doing what is legal and necessary to protect the country while remaining true to the values at the core of our nation. The President was determined to strike that balance without compromising the effectiveness of the program and what the American people would deem acceptable for ensuring their security.
In that regard, I felt strongly that the time had come to acknowledge that we were holding Khalid Sheik Mohammed and other notorious terrorists. We couldn’t allow them to remain “disappeared” and outside the reach of any justice system. I reminded the President of his guidance that we had to lift the veil on our operations and engage the people’s representatives in Congress in the formulation of a legal framework for the war on terror. That is what democracies do.
Not everyone agreed, however, and this issue would turn out to be one of the most contentious between the Vice President and me. Our differences came to a head during a National Security Council meeting in August 2006 held in the Roosevelt Room. (The Situation Room was being renovated.) I argued, as did others, that the President should publicly acknowledge the CIA’s detention and interrogation programs and transfer all remaining detainees in the CIA’s overseas facilities to Guantánamo Bay, where they could face trial. The Vice President objected, arguing that the detainees should remain in CIA custody given that they might have continued intelligence value. He worried that revealing the existence of the prisons would betray the trust of countries that had agreed to host them within their borders. I told the President that the secret sites were having a corrosive effect on the nation’s ability to secure intelligence cooperation and that he should resolve the issue rather than leaving it for his successor. “Mr. President,” I said, “don’t let this be your legacy.”
For several minutes the Vice President and I went back and forth; no one else spoke. It was the most intense confrontation of my time in Washington, but it was civil—not personal. I knew that Steve Hadley and Josh Bolten, then White House chief of staff, shared my views. I didn’t know what the President was hearing from the attorney general. For once I couldn’t read the President, and when he said he needed to think about it, I prayed that he understood the consequences fully.
He did. At his direction, a speech was prepared that he delivered in the East Room of the White House on September 6, 2006. President Bush announced that fourteen high-profile terrorists, including 9/11 mastermind Khalid Sheikh Mohammed, would be transferred to the detention facility at Guantánamo Bay, where they could be tried by military commissions authorized by Congress. The President told the American people that a small number of suspected terrorists had been held and questioned outside the United States in a program operated by the Central Intelligence Agency. He also acknowledged that in a limited number of circumstances the CIA had used alternative interrogation procedures to question terrorist suspects and that such procedures had been reviewed extensively by the Justice Department to ensure that they complied with our laws, our Constitution, and our treaty obligations.
These issues would arise again the next year when the CIA sought the President’s policy approval to renew its interrogation program, which had been suspended following the passage of the 2005 Detainee Treatment Act (DTA) and the Supreme Court’s Hamdan ruling. These events had raised some uncertainty about what was permissible under these legal standards, so the CIA requested that the Justice Department conduct a new legal review of its program to ensure it was consistent with the DTA and Common Article 3 of the Geneva Conventions. It also sought an executive order from the President that would interpret the Justice Department’s findings and in effect give the CIA policy authorization to restart the program.
When the draft of this executive order was circulated for my approval, I concluded that I could not endorse its findings. My legal advisor John Bellinger had determined that the CIA’s proposed program as currently constructed was inconsistent with the Supreme Court’s application of Common Article 3. I agreed with his judgment and refused to concur with the order. As a result, the program remained suspended until the CIA determined it could eliminate some of the more aggressive techniques without sacrificing the effectiveness of the program.
We would continue to revisit these issues throughout the rest of our time in office. Some of our goals remained unfulfilled: the President had been unable to close Guantánamo on his watch, a task that has proven equally difficult for his successor. But the modifications President Bush put into place has allowed the Obama administration to employ—and in some cases accelerate the use of—national security programs that had their foundations in the immediate aftermath of 9/11.
I was pleased that the administration was able to place our detention policies and other counterterrorism tools on a more su
stainable footing. As I stood in the East Room in September 2006 listening as the President lifted the veil on these programs, I gazed at the families of 9/11 victims who’d assembled to hear the address. Some applauded; some cried; some looked skyward as if to pray. I had a feeling then that we’d turned a corner as a nation; 9/11 would be avenged, and its suspected planners would face justice.
GEORGE W. BUSH had been transformed on that September day in 2001 into a wartime president and all of us into members of a war council. As secretary of state, I was now the chief diplomat and engaged in so many issues and activities that seemed quite distant from that September 11. But I too had been marked by the attacks on the World Trade Center and the Pentagon in ways that wouldn’t easily be erased. I realized that yet again when, on the fifth anniversary, I had a sudden and unexpected reaction that almost caused me to call it quits.
The President had gone to New York to observe the passing of five years since the attacks. The Cabinet, led by the Vice President, attended a church service at St. John’s Episcopal Church as had been done each year since 2001. Afterward, we gathered on the White House lawn for a moment of silence. As we were standing there, I looked up as a plane made an approach to Reagan National Airport along the Potomac. For a moment it seemed to be headed straight for us. I was terrified but after what seemed like several minutes (but was only a moment), I realized that it was on a normal flight path. I have been doing this too long, I thought. Tomorrow I am going to tell the President that I want to leave at the end of the year. I can’t do this anymore.
Since the President would lead the commemoration in New York and the Vice President the one in Washington, I’d decided to do something with an international flavor. Canada, particularly its eastern coast, had responded to 9/11 in the most remarkable way, taking the aircraft that had to be grounded immediately and harboring the suddenly displaced passengers. Nova Scotians had taken hundreds of Americans into their homes; the hosts were total strangers who were just lending a helping hand when needed. My friend and colleague, Foreign Minister Peter MacKay, was from Nova Scotia. I decided to go to his home province to thank Canada for what it had done.
No Higher Honor: A Memoir of My Years in Washington Page 60
