Known and Unknown

by Donald Rumsfeld

  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 wart
ime 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 mili
tary 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.