On November 13, 2001, the day Kabul was taken by the Northern Alliance, President Bush issued a military order formally appointing the secretary of defense as the “detention authority” for captured prisoners and for establishing the outlines of a justice system to try them.4 The order was the product of a series of discussions between White House and Justice Department lawyers.
The President’s order required that the Defense Department establish facilities to house suspected terrorists and conduct “military commissions to sit at any time and any place, consistent with such guidance regarding time and place as the Secretary of Defense may provide.”5 The order was based directly on decisions that had been made by presidents of both political parties during wartime, most recently by Franklin Roosevelt during World War II. Indeed, much of the language was taken verbatim from Roosevelt’s order establishing military commissions in 1942, which had been upheld unanimously by the Supreme Court of the United States.6
The relevant sentences of the President’s order were brief, but the tasks they set out were colossal. They would require the work of thousands of people for hundreds of thousands of hours. Bush was delegating wartime responsibilities to the Department of Defense that had not been used by our government in more than half a century.
I agreed with the President’s decision to shift from a peacetime approach, which treated terrorist acts as law enforcement problems, to a wartime footing, which deemed terrorism as an act of war. This fundamental change in philosophy was challenged by some who preferred trying terrorists in civilian courts of law After the fact and treating them as common criminals. The reality was that America had tried that approach for decades, and it had proven inadequate for stopping terrorist attacks before they occurred. Treating the conflict as a war—coupled with Congress’ september 18, 2001 authorization of the use of all “necessary and appropriate force” in the fight against terrorists—was the proper way to move beyond a reactive policy of retaliation and achieve the President’s goal of establishing proactive measures to prevent terrorist attacks against America.
Still I questioned whether our military was the appropriate institution to hold captured enemy combatants. From World War II through Korea and Vietnam to the first Gulf War, it was true that the military had shouldered the responsibility for the detention of captured enemy forces. But as I saw it, this unconventional conflict—against an amorphous enemy and with no finite duration—did not fit neatly within the laws of war pertaining to conventional conflicts. When it came to detention, our military had been schooled in holding enemies of regular armed forces—that is, lawful combatants entitled to prisoner of war (POW) status. Our armed forces did not have experience or established procedures for dealing with captured terrorists who, under the laws of war, were not entitled to the privileges of POWs.
What the President directed us to undertake required the advice of attorneys familiar with U.S. statutes and our international agreements. One of the notable changes I had observed from my service in the Pentagon in the 1970s was the prevalence of lawyers—in almost every office and in nearly every meeting. By the time I returned as secretary in 2001, there were a breathtaking ten thousand lawyers, military and civilian, involved at nearly every level of the chain of command across the globe. That the Department of Defense could function at all with ten thousand lawyers parsing its every move is astounding.
The number of laws and regulations relevant to the Defense Department had exploded correspondingly. Most elements of warfare in the twenty-first century were governed by complex legal requirements, from tactical rules of engagement to strategic issues involving negotiations over the Anti-Ballistic Missile treaty. It was a considerably bigger challenge than two and a half decades earlier, but we needed to ensure that the Department was always in compliance with the law.
Many fine attorneys worked on detainee affairs, including Harvard law graduate and former Army Captain William “Jim” Haynes II, who as general counsel was the Pentagon’s chief legal adviser. Haynes spared no effort to protect the interests of the armed forces while ensuring the Department’s activities were respectful of our nation’s laws. He and his large staffseized the nettle of detention issues from the outset. Haynes was aided by Dan Dell’Orto, a talented career civil servant and retired Army lawyer who had served in the Pentagon during the Clinton administration. The breadth and complexity of the issues Haynes, Dell’Orto, and the general counsel’s staffdealt with on any given day—personnel, procurement, courts-martial, promotions, intelligence, contracting, international law, and treaties—rivaled the workload of any government legal office.
The President’s November 13 order required that the Defense Department establish new rules for wartime detention. The guidance handed down by the President was that all detainees in U.S. custody were to be treated humanely, regardless of their legal status.7 In a separate Department of Defense order to the combatant commanders on January 19, 2002, I echoed the President’s order and directed all personnel to “treat [al-Qaida and Taliban detainees] humanely” and “in a manner consistent with the principles of the Geneva Conventions.”8
Though isolated cases of abuse and mistreatment of detainees have occurred in every war, American military forces have a long record of restraint and professionalism when it comes to holding captured enemies. After his army’s success on the frozen fields outside Princeton, New Jersey, George Washington issued unequivocal orders on the treatment of captured British soldiers: “Treat them with humanity, and Let them have no reason to Complain of our Copying the brutal example of the British army in their Treatment of our unfortunate brethren.”9 Chairman of the Joint Chiefs Dick Myers and I wanted to make sure that the military upheld this high tradition. Even while fighting an enemy whose use of brutality was the norm, we insisted on aligning our military’s conduct with the humane principles on which our Republic was founded.
In November 2001, a violent rebellion of Taliban and al-Qaida detainees in northern Afghanistan brought into focus the dangers and difficulties of managing fanatical killers in custody. General Rashid Dostum, an ethnic Uzbek Northern Alliance commander, as well as a powerful and tough warlord, held several hundred Taliban and al-Qaida foot soldiers in Qala-i-Jangi, a nineteenth-century mud-and-brick fortress near Mazar-e-Sharif.* Among the Qala-i-Jangi prisoners that November was an English-speaking man who looked out of place. His name was John Walker Lindh, and he would become known as “the American Taliban.”
During the questioning of Lindh and his fellow prisoners, two CIA agents asked him about his background and the circumstances of his capture on the battlefield among the al-Qaida and Taliban fighters. In the middle of the interrogation, a detainee leaped toward the two American intelligence operatives, touching off a prisonwide rebellion. The ensuing battle pitted Dostum’s few Northern Alliance guards, a handful of British Special Air Service (SAS) troops, U.S. Special Forces, and the two CIA agents against several hundred Taliban and al-Qaida, many committed to fighting to the death. The battle raged for three days. The prisoners managed to capture a Northern Alliance cache of weapons—including AK-47s, rocket launchers, mortars, and grenades.10 U.S. AC-130s and Black Hawk helicopters came to support the pinned-down coalition forces while Taliban and al-Qaida fighters held out in the basement of Qala-i-Jangi.11 Only when they were flushed out of the fortress with water did the fighting end. Before the battle there had been three hundred al-Qaida and Taliban prisoners, but only eighty-six emerged to surrender.12
The battle led to the deaths of some forty Northern Alliance soldiers, while another two hundred were injured.13 U.S. and British Special Forces also had taken casualties. Johnny Micheal Spann, one of the two CIA officers at Qala-i-Jangi prison that weekend, was killed in action in the first minutes of the battle, becoming the first American to die in combat operations in Afghanistan.14 His body was booby-trapped with a hidden grenade by the al-Qaida and Taliban prisoners so those recovering his remains would be wounded or killed. The episode was another remin
der that many of those detained were there for a reason—they were violent, vicious, and would not hesitate to kill again.
After the toppling of the Taliban, there was no central government in Afghanistan and no functioning criminal justice or prison systems. As coalition forces eliminated pockets of resistance in the early weeks of January 2002, the Northern Alliance was holding hundreds of suspected al-Qaida and Taliban prisoners—including the survivors of the battle at Qala-i-Jangi prison. Most detainees were vetted informally and sent home; others were permitted to join the Northern Alliance. As U.S. forces established a few large bases in Afghanistan, a growing number of detainees began to accumulate in military custody.
Some detainees were supporters of the Taliban who had joined the fight against the Northern Alliance and coalition as foot soldiers. Others were senior Taliban leaders. Still others were foreigners, many affiliated with al-Qaida. They had come to Afghanistan from various corners of the world—the Middle East, Europe, Southeast Asia, and Africa—to conduct jihad against the West and to kill Americans. The origins and records of some of the Northern Alliance prisoners were unclear. These men had been picked up in bad company, and some were terrorists or the terrorists’ allies. But others may have been innocent people who happened to be in the wrong place at the wrong time. While we couldn’t afford to release dangerous men with important intelligence information in their heads, we certainly didn’t want to hold mere bystanders.
In analyzing the legal status of the detainees, government lawyers examined the Geneva Conventions. Updated and refashioned in 1949, the modern Geneva Conventions reflected the fact that Axis powers had committed horrific crimes against noncombatants during World War II. The premise of the 1949 Geneva Conventions is that a civilized and responsible nation, even while fighting and killing enemy soldiers, should abide by humane rules and mitigate the brutality of war. The Conventions regulate the way parties to Geneva are to treat enemy prisoners, setting up a system of incentives to encourage combatants to obey the laws of war and discourage the loss of innocent life.
The architects of the modern Geneva Conventions also envisioned and assumed a degree of reciprocity and mutuality of interest among the warring parties. The Conventions’ drafters knew about irregular warfare, such as that of the French anti-Nazi resistance, but they did not have in mind or prescribe rules for asymmetric warfare that deliberately targets civilians—like al-Qaida’s large-scale use of suicide “martyrs.” Al-Qaida’s videos of beheadings publicly celebrate cruelty, proving beyond a doubt that al-Qaida does not treat detainees humanely, especially Americans.
George W. Bush was not the first president to face the issue of whether terrorists should be granted the protections of the Geneva Conventions. During the Cold War, the Soviet Union and its proxies pushed for adding rules to the Geneva Conventions that would grant such privileges to, and therefore legitimize, Soviet-backed guerrillas. President Ronald Reagan stood firmly against those revisions.15 He said the amendments giving irregular combatants the full protection of the Geneva Conventions would “undermine humanitarian law and endanger civilians in war.”16 The Reagan administration also was convinced that rewarding irregular combatants with the full rights and privileges of lawful combatants would not only make a mockery of the Geneva Conventions, but would undermine one of their key purposes, which was to protect civilians.
At that time, the Washington Post lauded President Reagan’s position in an editorial entitled, “Hijacking the Geneva Conventions.”17 The Post approvingly quoted Reagan: “[W]e must not, and need not, give recognition and protection to terrorist groups as a price for progress in humanitarian law.” The New York Times editorial board agreed, calling the proposal “a shield for terrorists.” It added:
President Reagan has faced more important but probably no tougher decisions than whether to seek ratification of revisions to the 1949 Geneva Conventions. If he said yes, that would improve protection for prisoners of war and civilians in wartime, but at the price of new legal protection for guerrillas and possible terrorists. He decided to say no, a judgment that deserves support.18
By 2002, both the New York Times and the Washington Post editorial boards had swung a full 180 degrees in the opposite direction.19
Consistent with the Reagan administration precedent, there was broad consensus in the Bush administration and, at least initially, among legal experts across the political spectrum, that the Geneva Conventions did not apply to al-Qaida terrorists in U.S. custody.* The logic was simple: Al-Qaida was not a nation-state and was not a party to the Geneva Conventions.† Its fighters also did not meet the four fundamental requirements for lawful combatant and prisoner of war status in the Third Geneva Convention: operating with a responsible command structure; wearing identifiable uniforms; carrying their arms openly; and obeying the laws of war. Al-Qaida terrorists, by contrast, bombed marketplaces posing as merchants and shop-goers—with explosives under their clothes, in their car trunks, or hidden on children. The nineteen 9/11 hijackers posed as businessmen in suits and commandeered civilian airliners to attack civilians, killing three thousand Americans and citizens from ninety other nations. Such deliberate, surprise attacks on civilian targets demonstrated nothing but contempt for the Geneva Conventions.
I agreed that if the United States automatically accorded the privileges of POW status to every individual captured on the battlefield (or more privileges, such as the right to appeal their detention in U.S. courts), regardless of their compliance with the Geneva Conventions, there would no longer be any incentive whatsoever for enemies to abide by the Geneva rules. Terrorists could have the best of both worlds: all of the advantages of being irregular, unlawful combatants but without any of the consequences. If accorded POW status, terrorists would not be required to give up any intelligence they possessed. Under the Third Geneva Convention, POWs are only obligated to provide name, rank, serial number, and date of birth—the most basic information—when questioned.* That means that even a number of the interrogation methods used every day in police stations across the United States are forbidden. The Geneva Conventions also require that POWs be given access to athletic uniforms, musical instruments, alcohol, tobacco, and the military justice system used by the detaining force.†
Because neither Taliban forces nor al-Qaida terrorists met the unambiguous requirements for POW status, they were not entitled to its special protections. This determination was not “abandoning” or “bypassing” the Geneva Conventions as many have erroneously alleged.23 It was, in fact, adhering to the letter and spirit of the Conventions. President Bush directed that as a matter of policy the treatment of al-Qaida and Taliban detainees would meet a high standard. He saw this not so much as a legal obligation, but as simply the right thing to do.
The plain words of the Geneva Conventions support the position he ordered, as did the written words of his most prominent administration officials. Indeed, in February 2002, William Taft IV, the senior legal adviser to Secretary of State Powell, advised White House Counsel Alberto Gonzales: “The lawyers all agree that al Qaeda or Taliban soldiers are presumptively not POWs.”24 Powell apparently felt strongly enough in this case to put his thoughts in writing. His preferred option, he wrote, entailed announcing “publicly” that “members of al Qaeda as a group and the Taliban individually or as a group are not entitled to Prisoner of War status under the Convention.”25
Though it was clear that the privileges of the Geneva Conventions did not apply to terrorists, there was serious debate about whether the Geneva Conventions applied in any way to America’s conflict with the Taliban regime. The Taliban were the de facto government of Afghanistan, a country that was a party to the Geneva Conventions. However, officials and lawyers in the Justice Department concluded that even though Afghanistan had ratified the Geneva Conventions some years before, the Taliban had not been recognized as that country’s government, either by the United States or by most other countries, nor did they actually control a viable nation-stat
e. Because Afghanistan was deemed a “failed state,” Attorney General John Ashcroft and Justice Department officials maintained that the President was not required by law to apply the Geneva Conventions to America’s war against the Taliban.26
Those of us in the Defense Department did not address Justice’s legal position, but we had a different view as a matter of policy, perhaps none more strenuously than the Chairman of the Joint Chiefs of Staff. One day in late January 2002, General Myers strode purposefully into my office with a concerned look on his face. Several days before, White House legal memos leaked to the press had given the impression that President Bush might be considering not applying the Geneva Conventions at all in Afghanistan, based on the Department of Justice’s legal opinion.27 Myers felt strongly that it would be a mistake not to apply the Conventions to the Taliban. We couldn’t risk the perception that we were discarding long-established rules of international law and our treaty obligations.
I concluded that Myers was correct. Knowing that administration lawyers were weighing in, I wanted to make sure President Bush heard the Chairman’s and the Defense Department’s views.28 I asked Rice to set up an NSC meeting on the subject so that we could make the Department’s case.
At the NSC meeting on February 4, 2002, Myers and Doug Feith presented our position, which was based on the language and purposes of the Geneva Conventions. We contended that the U.S. government should not use a legal argument to avoid applying the Geneva Conventions to the conflict in Afghanistan. The memo we brought to the meeting set out our position:
Known and Unknown Page 65
