by Obama Barack
The morning was hot and muggy when McChrystal and I finally sat down alone in the Oval Office. He seemed chastened but composed. To his credit, he made no excuses for his remarks. He didn’t suggest that he’d been misquoted or taken out of context. He simply apologized for his mistake and offered his letter of resignation. I explained why, despite my admiration of him and my gratitude for his service, I had decided to accept it.
After McChrystal left, I held a press conference in the Rose Garden to outline the reasons for my decision and to announce that General Dave Petraeus would be assuming command of coalition forces in Afghanistan. It was Tom Donilon who’d come up with the idea of moving Petraeus into the job. Not only was he the country’s most widely known and respected military leader, but as the head of Central Command he was already intimately familiar with our Afghan strategy. The news went over about as well as we could have hoped for under the circumstances. Still, I walked out of the press conference feeling livid about the whole situation. I told Jim Jones to gather everyone on the national security team right away. The meeting didn’t last long.
“I’m putting everybody on notice that I am fed up,” I said, my voice steadily rising. “I don’t want to hear any commentary about McChrystal in the press. I don’t want any more spin or rumors or backbiting. What I want is for people to do their damn jobs. And if there are people here who can’t act like they’re on a team, then they’ll be gone too. I mean it.”
The room fell silent. I turned around and left, with Ben trailing behind me; apparently we were scheduled to work on a speech.
“I liked Stan,” I said quietly as we walked.
“You didn’t really have a choice,” Ben said.
“Yeah,” I said, shaking my head. “I know. It doesn’t make it go down better.”
* * *
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ALTHOUGH THE FIRING of McChrystal made headlines (and reinforced the conviction among the GOP faithful that I was unfit to serve as commander in chief), it wasn’t the kind of story that necessarily moved swing voters in an election. As the midterms approached, the Republicans instead focused on a national security issue that struck closer to home. It turned out that a solid majority of Americans really didn’t like the idea of trying terrorist suspects in civilian criminal courts on U.S. soil. In fact, most weren’t particularly concerned about giving them full or fair trials at all.
We’d gotten an early inkling of this as we’d tried to move forward with my pledge to close the detention center at Guantánamo. In the abstract, most congressional Democrats bought my argument that holding foreign prisoners there indefinitely without trial was a bad idea. The practice violated our constitutional traditions and flouted the Geneva Conventions; it complicated our foreign policy and discouraged even some of our closest allies from cooperating with us on anti-terrorism efforts; and, perversely, it boosted al-Qaeda’s recruitment and generally made us less safe. A few Republicans—most notably John McCain—agreed.
But to actually close the facility, we had to figure out what to do with the 242 detainees being held at Guantánamo when I took office. Many were ill-trained, low-level fighters who’d been randomly scooped up on the battlefield and posed little or no threat to the United States. (The Bush administration itself had previously released more than five hundred such detainees to their home countries or to a third country.) But a small number of Gitmo prisoners were sophisticated al-Qaeda operatives, known as high-value detainees (HVDs)—like Khalid Sheikh Mohammed, one of the self-professed masterminds behind the 9/11 attacks. The men in this category were accused of being directly responsible for the murder of innocent people, and as far as I was concerned, releasing them would be both dangerous and immoral.
The solution had seemed clear: We could repatriate the remaining low-level detainees to their home countries, where they would be monitored by their governments and slowly reintegrated into their societies, and put the HVDs on trial in U.S. criminal courts. Except the more we’d looked into it, the more roadblocks we’d encountered. When it came to repatriation, for instance, many low-level detainees came from countries that didn’t have the capacity to safely handle their return. In fact, the largest contingent—ninety-nine men—was from Yemen, a dirt-poor country with a barely functioning government, deep tribal conflicts, and the single most active al-Qaeda chapter outside Pakistan’s Federally Administered Tribal Areas (FATA).
International law also prohibited us from repatriating detainees who we had grounds to believe might be abused, tortured, or killed by their own government. Such was the case with a group of Uighurs being held at Gitmo: members of a Muslim ethnic minority who had fled to Afghanistan because of brutal, long-standing repression in their native China. The Uighurs had no real beef with the United States. Beijing, however, considered them terrorists—and we had little doubt that they risked a rough reception if we sent them to China.
The prospect of bringing HVDs to trial in U.S. courts was perhaps even more complicated. For one thing, the Bush administration hadn’t placed a high priority on preserving chains of evidence or maintaining clear records regarding the circumstances in which detainees had been captured, so many prisoners’ files were a mess. Also, a number of HVDs, including Khalid Sheikh Mohammed, had been tortured during their interrogations, rendering not only their confessions but also any evidence linked to those interrogations inadmissible under the rules of ordinary criminal proceedings.
Bush administration officials hadn’t considered any of this to be a problem since, in their view, all Gitmo detainees qualified as “unlawful enemy combatants,” exempt from the protections of the Geneva Conventions and unentitled to civilian trials. Instead, to adjudicate cases, the administration had created an alternative system of “military commissions” in which U.S. military judges determined guilt or innocence and lower standards of evidence and weaker procedural safeguards prevailed. Few legal observers found the administration’s approach to adequately meet the minimum requirements of due process; and as a result of constant legal challenges, delays, and procedural snags, the commissions had managed to decide only three cases in two years. Meanwhile, a month before I was elected, lawyers representing seventeen Uighurs held at Gitmo had successfully petitioned a U.S. federal judge to review their detention, leading him to order their release from military custody and setting the stage for a lengthy legal battle over jurisdiction. Similar appeals on behalf of other prisoners were also pending.
“This isn’t just a turd sandwich,” Denis observed after one of our sessions on Gitmo. “It’s a turd smorgasbord.”
Despite these difficulties, we started chipping away at the problem. I ordered the suspension of any new cases being brought before military commissions—although in a nod to the Pentagon, I agreed to have an interagency team review whether the commissions could be reformed and used as a backup in the event that we couldn’t try certain detainees in civilian court. We set up a formal process to evaluate which detainees could be safely released, whether to their home countries or to other nations willing to take them. Working with lawyers at the Pentagon and the CIA, Attorney General Eric Holder and a team of Justice Department prosecutors began reviewing prisoner files to see what further evidence was required to bring to trial and convict each HVD at Gitmo. We began looking for a U.S. facility—whether on a military installation or within the existing federal prison system—that could immediately house transferred Gitmo detainees while we determined their ultimate dispositions.
That’s when Congress began to freak out. Republicans got wind of rumors that we were considering the possible resettlement of Uighurs in Virginia (most were ultimately sent to third countries, including Bermuda and the island nation of Palau) and took to the airwaves, warning voters that my administration planned to move terrorists into their neighborhoods—maybe even next door. This made congressional Democrats understandably nervous, and they ultimately agreed to a provision added to a defense spe
nding bill that prohibited the use of any taxpayer funds for the transfer of detainees to the United States for anything but a trial; it also required Bob Gates to submit a formal plan to Congress before a new facility could be chosen and Guantánamo shut down. Dick Durbin approached us in the spring of 2010 with the possibility of using a largely vacant state prison in Thomson, Illinois, to house up to ninety Gitmo detainees. Despite the jobs it was likely to bring for residents of a rural town hard-hit by the economic crisis, Congress refused to fund the $350 million needed to buy and renovate the facility, with even some liberal Democrats echoing Republican arguments that any detention center located on U.S. soil would become a prime target for future terrorist attacks.
None of this made sense to me. Terrorist plotters weren’t Navy SEALs; if al-Qaeda were to plan another attack in the United States, detonating a crude explosive in a New York subway or crowded Los Angeles mall would be far more devastating—and a lot easier—than trying to mount an assault on a hardened correctional facility in the middle of nowhere staffed by heavily armed U.S. military personnel. In fact, well over a hundred convicted terrorists were already serving time without incident in federal prisons scattered across the country. “We’re acting like these guys are a bunch of supervillains straight out of a James Bond movie,” I said to Denis in exasperation. “The average inmate at a supermax prison would eat these detainees for lunch.”
Nonetheless, I could understand that people had very real fears—fears born of the lingering trauma of 9/11 and continually stoked by the previous administration and much of the media (not to mention countless movies and TV shows) for almost a decade. Indeed, several Bush administration alumni—in particular, former vice president Dick Cheney—made it their mission to keep fanning those fears, viewing my decisions to revamp the handling of terrorist suspects as an attack on their legacy. In a series of speeches and television appearances, Cheney insisted that the use of tactics like waterboarding and indefinite detention had prevented “something much bigger and far worse” than the 9/11 attacks. He accused me of reverting to a pre-2001 “law enforcement mode” in dealing with terrorists rather than understanding the “concept of military threat,” and he claimed that in doing this, I was increasing the risk of another attack.
Cheney’s assertion that my administration wasn’t treating al-Qaeda as a military threat was hard to square with the additional battalions I’d deployed to Afghanistan or the scores of al-Qaeda operatives we were targeting with drone strikes. And Cheney probably wasn’t the best messenger for any argument, given how personally unpopular he was with the American public—thanks in large part to his catastrophic judgment on Iraq. Still, the idea that we shouldn’t treat terrorists like “ordinary criminals” did resonate with a lot of voters. And it had gotten even more traction in the aftermath of “Underwear Bomber” Umar Farouk Abdulmutallab’s attempt to bring down a jet the previous Christmas.
In handling that case, both the Justice Department and the FBI had followed procedure. At Eric Holder’s direction, and with the concurrence of the Pentagon and the CIA, federal officials had arrested the Nigerian-born Abdulmutallab as a criminal suspect as soon as the Northwest Airlines plane landed in Detroit and had transported him to receive medical care. Because the top priority was ascertaining that there were no further immediate threats to public safety—other bombers on other planes, for example—the first team of FBI agents questioning Abdulmutallab did so without reading him the Miranda warnings, using a well-established legal precedent that allowed law enforcement an exception when neutralizing an active threat. Speaking to agents for nearly an hour, the suspect provided valuable intelligence about his al-Qaeda connections, his training in Yemen, the source of his explosive device, and what he knew of other plots. He was later read his rights and given access to counsel.
According to our critics, we had practically set the man free. “Why in God’s name would you stop questioning a terrorist?!” former New York mayor Rudy Giuliani declared on TV. Joe Lieberman insisted that Abdulmutallab qualified as an enemy combatant and, as such, should have been turned over to military authorities for interrogation and detention. And in the heated Massachusetts Senate race that was going on at the time, Republican Scott Brown used our handling of the case to put Democrat Martha Coakley on the defensive.
The irony, as Eric Holder liked to point out, was that the Bush administration had handled almost every case involving terrorist suspects apprehended on U.S. soil (including Zacarias Moussaoui, one of the planners behind 9/11) in exactly the same way. They’d done so because the U.S. Constitution demanded it: In the two instances where the Bush administration had declared terrorist suspects arrested in the United States “enemy combatants” subject to indefinite detention, the federal courts had stepped in and forced their return to the criminal system. Moreover, following the law actually worked. Bush’s Justice Department had successfully convicted more than a hundred terrorist suspects, with sentences at least as tough as the few that had been handed down through military commissions. Moussaoui, for example, was serving multiple life sentences in federal prison. These lawful criminal prosecutions had in the past drawn lavish praise from conservatives, including Mr. Giuliani.
“It wouldn’t be so aggravating,” Eric told me one day, “if Giuliani and some of these other critics actually believed the stuff they’re saying. But he’s a former prosecutor. He knows better. It’s just shameless.”
As the point person in our effort to bring America’s counterterrorism practices into alignment with its constitutional principles, Eric would bear the brunt of this manufactured outrage. He didn’t seem to mind, knowing it came with the job—although he didn’t consider it entirely a coincidence that he was the favorite target in my administration for much of the Republican vitriol and Fox News conspiracy theorizing.
“When they’re yelling at me, brother,” Eric would say, patting my back with a wry smile, “I know they’re thinking of you.”
I could see why those who opposed my presidency might have considered Eric a handy stand-in. Tall and even-tempered, he’d grown up in Queens, New York, the son of middle-class parents of Barbadian descent. (“They gave you that island vibe,” I told him.) He’d attended my alma mater, Columbia University, a decade before I got there, where he’d played basketball and participated in campus sit-ins; while at law school, he’d become interested in civil rights, interning one summer at the NAACP Legal Defense Fund. And, like me, he’d chosen public service rather than a job in a corporate law firm, working as a prosecutor in the Justice Department’s Public Integrity Section and later as a federal judge on the D.C. Superior Court. Bill Clinton eventually nominated him to be the U.S. attorney for the District of Columbia and, later, the deputy attorney general of the United States—the first African American to serve in either position.
Eric and I both had an abiding faith in the law, a belief—tempered by personal experience and our knowledge of history—that through reasoned argument and fidelity to the ideals and institutions of our democracy, America could be made better. It was on the basis of those shared assumptions, more than our friendship or any particular agreement on issues, that I’d wanted him as my attorney general. It was also why I would end up being so scrupulous about shielding his office from White House interference in pending cases and investigations.
There was no law expressly prohibiting such interference. At the end of the day, the AG and his or her deputies were part of the executive branch and thus served at the pleasure of the president. But the AG was first and foremost the people’s lawyer, not the president’s consigliere. Keeping politics out of the Justice Department’s investigative and prosecutorial decisions was a crucial democratic imperative, made glaringly apparent when the Watergate hearings revealed that Richard Nixon’s AG, John Mitchell, had actively participated in the cover-up of White House misdeeds and initiated criminal investigations into the president’s enemies. The Bush administr
ation had been accused of violating that norm in 2006 when it fired nine U.S. attorneys whom it apparently considered insufficiently committed to its ideological agenda; and the one blemish on Eric Holder’s otherwise spotless record was the suggestion that he’d succumbed to political pressure when, as deputy AG, he’d supported Bill Clinton’s criminal pardon of a major donor in the waning days of the administration. Eric later said he regretted the decision, and it was precisely the kind of situation I was intent on avoiding. So, while he and I regularly discussed broad Justice Department policy, we were careful to steer clear of any topic that would even appear to compromise his independence as America’s top law enforcement officer.
Still, there was no getting around the fact that any attorney general’s decisions had political ramifications—as my White House team liked to remind me and as Eric sometimes forgot. He was surprised and offended, for example, when, a month into my presidency, Axe took him to task for failing to clear a Black History Month speech in which he referred to America as “a nation of cowards” when it came to its unwillingness to discuss race issues—a true enough observation but not necessarily the headline we were looking for at the end of my first few weeks in office. The heat we took at the White House for the Justice Department’s legally sound but politically toxic decision not to indict any of the bank executives for their role in the financial crisis also seemed to catch him off guard. And maybe it was this guilelessness, his confidence that logic and reason would ultimately prevail, that led Eric to miss how quickly the political ground was shifting when he announced late in 2009 that Khalid Sheikh Mohammed and four other 9/11 co-conspirators would finally go on trial in a lower Manhattan courtroom.
