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.
CHAPTER 41
The Road Not Traveled
“The only exact science known to man is hindsight,” John Reid, the British secretary of state for defense, commented in September 2005. He had a good point, though I might suggest that not even hindsight is an exact science, as demonstrated by any number of memoirs and books that explain the same events so differently. I found this myself when I started to subject my own memories to rigorous fact-checking in the process of writing this book.
Looking back, I see there are things the administration could have done differently and better with respect to wartime detention. As the administration grappled with these difficult questions, there were remarkably few interagency meetings devoted to detainee policy. In previous administrations the deputies committee, the highest subcabinet interage
ncy forum on national security matters, regularly helped iron out differences of views among agencies. The principals committee, the members of the National Security Council, excepting the President, could then meet and prepare matters—including any unresolved interagency issues—for his consideration. I suggested without success that National Security Adviser Rice chair deputies meetings on important subjects, to give the group some heft and direction. Deputy Secretary Wolfowitz eventually encouraged a group of senior officials from across the government to hold ad hoc deputies-level meetings to address detainee-related questions outside the formal NSC system.
When principals committee meetings were held on detainee policy, little, if anything, was resolved. Instead, the meetings became opportunities to discuss the negative media coverage, such as that about Guantánamo, rather than to propose constructive alternatives and move issues up to the President for decision.1
The Defense Department was largely left to deal with the barrage of negative press on its own. With the exceptions of President Bush and Vice President Cheney, others showed scant interest in helping defend the administration detention policy. We needed assistance but received little from the White House communications team. The gap between the reality of our policies and the mythology about them yawned wider and wider in the absence of a concerted effort to confront major untruths as they were continuously repeated.
It was not until January 2005—one year After CENTCOM brought the abuses at Abu Ghraib to light, and more than three years After the President had signed his November 2001 military order assigning the detainee mission to the Defense Department—that the National Security Council staffbegan to treat the subject of detainees as an administration issue. By that time the President had been reelected and had realigned his National Security Council.
During the President’s first term, one problem that resulted from the lack of interagency policy review on this issue was that key policy makers saw detainee questions as essentially legal issues rather than policy matters. Perhaps somewhat paradoxically, given my reluctance to cede control to lawyers over policies such as rules of engagement, I too was guilty of thinking that the legal questions were preeminent. From the first days of combat operations in Afghanistan, I tended to treat detainee matters as something to be sorted out among knowledgeable executive branch lawyers, with little involvement from the policy makers, including me.
The military commissions and other detainee-management matters would have benefited from greater consideration of policy, politics, and diplomacy. That was less likely to happen if the issues were handled as legal matters in interagency meetings of lawyers, who were often not accompanied by policy officials. Legal advice is critical in defining boundaries, to be sure, but it should not be determinative, in that within the legal boundaries there is often a range of possible policy options.
The overly legal focus on wartime detention issues had consequences outside of the executive branch. I now believe that if we had directly engaged Congress from the outset and solicited its public involvement in crafting wartime detention legislation, we might have had a richer debate, and then implemented policies that would have commanded greater support at home and abroad. Of course, Congress, at its initiative, also could have become involved in these discussions from the outset, but the relevant players declined to do so.
Though early legislation on wartime detention would probably not have headed off all the problems, it might have helped. I say this even though I doubt the practices devised in partnership with Congress would have been notably different from those that the administration actually adopted and implemented. But by involving Congress, the administration might have taken into account a broader array of considerations, and at least been inoculated against the charge that it was acting in an unchecked and unlawful fashion. At the minimum, it would have built some defenses against many of the rhetorical attacks directed at essential efforts in the struggle against Islamist extremists. It would have also made clearer that the detainees are not just the Pentagon’s problem or the President’s problem, but the country’s problem—indeed, a problem for the civilized world.
The way the administration reached decisions on detainee policy was generally consistent with a predisposition to protect the historic powers of the presidency. There was good reason to be concerned about preserving the commander in chief’s constitutional national security and war powers. After 9/11, calls for greater security through prompt action came from every quarter of the country. By constitutional design, Congress is intended to be slow—to promote deliberation and the weeding out of ideas that may be popular for a moment, but imprudent. Congress was not intended or organized to meet the demands of operational decision making in a crisis. America’s founding fathers knew what they were doing when they put the powers to conduct war in the hands of a single commander in chief, not those of a committee composed of the 535 members of the national legislature.
With these thoughts in mind, the administration—especially the lawyers—did not favor asking for legislation in areas in which the president already had robust constitutional authorities because it would set precedents that permanently limited the authority of future presidents. I shared that concern, but it may not have taken fully into account the broader picture—the complete set of strategic considerations of a president fighting a protracted, unprecedented, and unfamiliar war for which he would need sustained domestic and international support.
Vice President Cheney appreciated the importance of preserving the President’s powers as commander in chief, especially when they were under assault for short-term political reasons. Cheney and his chief legal counsel and later chief of staff, David Addington, supported by senior lawyers from around the government, helped guard presidential authority as a matter of principle. Looking back, it is possible that the weight given to it may have contributed to an outcome the administration hoped to avoid: encroachment on the president’s powers as commander in chief by the Congress and, particularly, by the judiciary.2 Both the Congress and the judiciary now arrogate to themselves more rights to supervise the president’s national security decisions than ever before in our country’s history.
The tension among the three branches of our federal government goes back to the founding days of the Republic, when Alexander Hamilton and James Madison argued out the merits of a “vigorous Executive” in the Federalist Papers.3 The debate has come up time and again—for example, during the Civil War and World War II as Presidents Lincoln and Roosevelt put the nation on war footings by exercising their powers as commander in chief expansively.
Cheney and I had witnessed the era of Vietnam and Watergate, during the fevered debate over the so-called imperial presidency. Late in the Vietnam War, Congress passed the 1973 War Powers Resolution, which declared that American presidents could no longer send U.S. forces into combat without express authorization by Congress, except in exigent circumstances. Cheney and I dealt with this congressional backlash in the Ford White House. In the early days of the Ford administration, Bryce Harlow, the savvy White House liaison to Congress, former Eisenhower aide, and a friend, told me—and I am paraphrasing from memory:
The steady pressure by Congress and the courts is to reduce executive authority. It is inexorable, inevitable, and historical. Resolve that when you leave the White House, leave it with the same authorities it had when you came. Do not contribute to the erosion of presidential power on your watch.
Harlow’s words left an impression on me, and, I suspect, on Cheney.
The executive branch lawyers’ view of presidential prerogatives in national security, with a proper concern about congressional and judicial infringement, may well be consistent with the Founding Fathers’ intentions. Nonetheless, the role of the federal judiciary has changed significantly over the past fifty years. Since World War II, federal courts have become involved in policy issues ranging from abortion and major league baseball to gun rights and campaign financing. In World War II, the United Sta
tes detained four hundred thousand German and Italian prisoners of war in camps across the country without any judicial review. Out of the handful of habeas corpus petitions from those POWs, no court in the United States granted a single one. But as Jim Haynes pointed out in 2008, “Today, we have less than 300 unlawful combatants detained at Guantánamo Bay, Cuba, and 246 ongoing habeas cases to go with them.”4
If it weren’t obvious in 2001 that long-established legal precedents, even from the Supreme Court, were no longer reliable guideposts in times of legal activism, it should be sufficiently clear now. One of the finest legal minds in the nation, Solicitor General Ted Olson, advised White House lawyers in the early years of the George W. Bush administration that their view of executive power might not fare well with the twenty-first-century Supreme Court. Had the administration heeded that caution and worked with Congress early on to craft acceptable legislation governing twenty-first-century detainee policies, the courts might—and I stress might—have been somewhat less inclined to assume the role that they now have seized—and presidential powers in wartime might as a result be stronger than they are today.
While the legal justifications behind the decisions and policies we made on detainee affairs were sound and firmly rooted in precedent, there is little doubt that they grew increasingly out of sync with the mood of the country. The intense emotions of 9/11—insecurity and fear, offset by outrage and a resolve to confront the terrorists—eased. Increasingly distant memories of that day were overtaken by new, skewed images of detention—photographs from Abu Ghraib and an avalanche of largely unrebutted misinformation about Guantánamo Bay. Detainees came to be viewed by some in Congress, the news media, and the public less as dangerous terrorists caught on the battlefield and possible sources of lifesaving information about our enemies, but more as victims of abuse deprived of their legal rights.
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