In My Time (57 page)

Six months later, the
New York Times
published a story that damaged our efforts to track the flow of funding to terrorists. The June 23, 2006, story was headlined “Bank Data Is Sifted by U.S. in Secret to Block Terror.” It exposed details about a classified program to track banking
transactions, which, of course, was welcome enlightenment to those we were trying to catch. The
Times’
public editor, Byron Calame, at first defended the newspaper’s decision to publish on the grounds that the classified program wasn’t really much of a secret. After
Times
readers pointed out that the
Times
story had emphasized the program’s secrecy, Calame reversed himself, writing, “I don’t think the article
should have been published
.”

In the wake of the
New York Times
terrorist surveillance story, Andy Card hosted a meeting in his office that I attended along with some of the president’s communications team. Communications Director Dan Bartlett was urging that we be more forthcoming in revealing to the press and the public just what these programs entailed. He said that the president was “just carrying too much baggage” from all the “secret” activities we had under way. I understood it was his job to worry about the president’s image, but there were important reasons for our secrecy. “Dan,” I said, “we aren’t doing these things for our entertainment. We’re doing them because we’re at war. These programs—and keeping them secret—are critical for the defense of the nation.” The president and I and everyone else serving in the administration had one mission: to defend the nation, even if it resulted in negative press stories.

The Terrorist Surveillance Program is, in my opinion, one of the most important success stories in the history of American intelligence. The speed with which the NSA got it up and running, the problems they solved and the way they solved them, the careful attention paid to ensure lawfulness and proper oversight, and the intelligence collected make the program a model of the tremendous work our nation’s intelligence community can do. As I think back on all we accomplished in those first post-9/11 months, this program is one of the things of which I am proudest. I know it saved lives and prevented attacks. If I had it to do all over again, I would, in a heartbeat.

NEAR THE TOWN OF Mazar-e-Sharif in Afghanistan there is a nineteenth-century prison fortress called Qala-i-Jangi. In November 2001, when Northern Alliance forces under the command of General Abdul Rashid Dostum captured three hundred Taliban and al Qaeda
soldiers, they took their prisoners to the fort. On Sunday morning, November 25, 2001, two CIA officers went to the complex to question the prisoners, meeting with a group of them in an open area outside the cells. Almost immediately one of the officers, Johnny Micheal Spann, found himself surrounded. The prisoners overcame him in a vicious attack, “scrabbling at his flesh with their hands,” according to eyewitness accounts, and killing him with weapons they had smuggled in. Spann became the first American combat death in Afghanistan. His companion, a CIA agent known only as Dave, managed to escape the next day. It took two days and heavy American airpower to put down the
riot at Qala-i-Jangi
.

Many of those being captured in Afghanistan were clearly cold-blooded killers who had committed horrific acts of savagery and welcomed a fight to the death. We needed to find a secure place to hold them away from the field of battle. Defense Department officials settled on the idea of a detention facility at the U.S. naval base at Guantanamo Bay, Cuba, where they had space and support. It was a choice dictated in part by Justice Department advice that keeping detainees off U.S. soil would prevent them from having access to U.S. courts. Holding detainees at Guantanamo also avoided the security concerns that would arise from bringing them into the United States.

In the years since the first enemy combatants were moved to Guantanamo, the facility there and the U.S. servicemen who guard the detainees have been the target of a tremendous amount of unjustified criticism from people with little knowledge about the actual conditions at the camp. It is a model facility—safe, secure, and humane—where detainees have access to television, books, newspapers, movies, their choice of a number of sports and exercise activities, the Koran, healthy food that is in keeping with their religious beliefs,
and medical care
. It likely provides a standard of care higher than many prisons in European countries where the criticism of Guantanamo has been loudest.

President Bush determined early on in the War on Terror that even though neither al Qaeda nor Taliban detainees qualified for POW status under the Geneva Conventions, the United States armed forces would
as a matter of policy treat detainees humanely and “in a manner consistent with the principles of Geneva.” And that remained our policy throughout our time in office.

Critics often point to the determination that the Geneva Conventions did not apply to detainees as evidence of our lack of respect for the Conventions. It seems to me to demonstrate the opposite. Geneva is intended to provide protections to those who abide by the laws of war, and among the most important of those is keeping civilians safe. Terrorists intentionally attack civilians, thus putting themselves outside the realm of those whom Geneva is meant to protect. Further, an important incentive to abide by the laws of war is removed if protections are extended to the most egregious violators. When President Reagan rejected a proposal to extend Geneva’s protections to terrorists, he rightly observed that doing so would “undermine humanitarian law and
endanger civilians in war
.”

During our time in office, the State Department responded to criticism, particularly from Europe, by looking for ways to shut down the facility. In meeting after meeting we debated Guantanamo. My view was always that it was a safe, secure, humane facility, and we had no better alternative for holding dangerous terrorists. We did in fact move many detainees through Guantanamo and returned some to their home countries. We later learned that a number of the released detainees ended up back on the field of battle, fighting against us and our allies in the War on Terror. By the time we left office, the detainees still remaining in the camp were among the worst of the worst—those too dangerous to be allowed to leave and those whose home countries would not take them back.

It was against this backdrop that President Barack Obama announced on his second day in office that he would close the facility within a year. His administration stepped up efforts to release detainees despite the lesson we had learned about released terrorists returning to terrorism, and the president repeated a number of criticisms that do not bear up under examination. He claimed, for example, that Guantanamo “was probably the number one recruitment tool that is used by”
al Qaeda. If that were true, one would expect to see al Qaeda mention Guantanamo frequently, but a review of thirty-four messages and interviews by top al Qaeda leaders issued in 2009 and 2010 shows the word
Guantanamo
appearing in only three
. The president has also suggested that Guantanamo should be closed because it is hurting America’s image around the world. But it’s not Guantanamo that does the harm, it is the critics of the facility who peddle falsehoods about it. Even if, for the sake of debate, one were to accept the image argument, I don’t have much sympathy for the view that we should find an alternative to Guantanamo—a solution that could potentially make Americans less safe—simply because we are worried about how we are perceived abroad.

IT HAS BEEN THE case in every major war in which the United States has been engaged that we hold enemy combatants for the duration of the conflict. This war is no different, except that the duration may be longer than any war in which we have previously been involved. As the fighting got under way in Afghanistan, we knew that there would be certain cases where we needed to try detainees. Administration lawyers relied on clear precedent to develop a system of military commissions.

In 1942, a group of eight Nazi saboteurs landed by submarine on beaches in Florida and New York. They were captured, put on trial by a military commission at the direction of President Franklin D. Roosevelt, and convicted. Six of the eight were executed. The Supreme Court unanimously upheld the constitutionality of the order Roosevelt issued establishing the military commissions.

On November 13, 2001, President Bush signed an executive order, based on FDR’s order, establishing military commissions to try certain captured detainees. The detainees were foreign enemy combatants engaged in war against the United States. Military commissions were the appropriate place to try them. Our normal Article III court system was not suited for the trial of enemy combatants for a number of reasons. These courts couldn’t provide the safeguards in terms of security or
protection of classified information that a military commission could. In addition, enemy combatants are not entitled to the rights granted through our civilian court system to criminal defendants. We knew that military commissions were the right place for these trials. We also knew that the model that FDR established had been upheld unanimously by the Supreme Court, and that was the model we chose to follow.

Although the order establishing the commissions had been drafted in coordination with the Office of Legal Counsel at the Department of Justice, three days before the president signed it, Attorney General Ashcroft had come to the White House to express concern that it envisioned no role for the attorney general. But as the long history of military commissions in America reflects, military commissions are an exercise of military authority over enemy combatants and not part of the law enforcement system. Indeed, the Office of Legal Counsel had emphasized that the military commissions should be authorized by the president as commander in chief in a directive to the secretary of defense for military implementation, with minimal involvement of the Department of Justice, which has no military responsibilities.

As it turned out, we also ran into bureaucratic obstacles at the Department of Defense, and the military commissions were very slow to get started. Following a number of court cases and additional legislative action, a military commission system was established that is up and running today. I believe it provides the best forum in which to try enemy combatants of the United States, and I have been gratified to see the Obama administration come around to the same way of thinking.

IN MARCH 2002, PAKISTANI forces raided an al Qaeda safe house in Faisalabad, Pakistan, and captured a terrorist named
Abu Zubaydah
. A lieutenant of Osama bin Laden, Zubaydah was the highest-ranking al Qaeda member we had captured to date. He had been badly wounded in the firefight that led to his capture, and the CIA officers who had been aiding the Pakistani operation arranged a special flight to bring a doctor from the United States to provide emergency care for him.

Although defiant, Zubaydah provided useful information very early
on, disclosing, for example, that the mastermind behind 9/11 had been Khalid Sheikh Mohammed, or KSM. He also provided KSM’s code name, Muktar. But then he stopped answering questions, and the CIA, convinced he had information that could potentially save thousands of lives, approached the Justice Department and the White House about what they might do to go further in interrogating him and other high-value detainees. The CIA developed a list of enhanced interrogation techniques that were based on the Survival, Evasion, Resistance, and Escape Program used to prepare our military men and women in case they should be captured, detained, or interrogated. Before using the techniques on any terrorists, the CIA wanted the Justice Department to review them and determine that they complied with the law, including international treaty obligations such as the United Nations Convention Against Torture. Out of that review process, which took several months, came legal opinions advising that the techniques were lawful. The program was approved by the president and the National Security Council.

The techniques worked. Abu Zubaydah gave up information about Ramzi bin al Shibh, who had assisted the 9/11 hijackers, and on the one-year anniversary of the 9/11 attacks, bin al Shibh was captured after a shootout in Pakistan. At the time of his apprehension, he was plotting to use commercial airliners in suicide attacks on Heathrow Airport and other structures in London.

Information from Abu Zubaydah and bin al Shibh led in turn to the capture of KSM, who after being questioned with enhanced techniques became a fount of information. A CIA report, declassified at my request, notes that KSM was the “preeminent source on al-Qa’ida.” According to the 2004 report, KSM had become key in the U.S. government’s understanding of al Qaeda plots and personalities:

Debriefings since his detention have yielded . . . reports that have shed light on the plots, capabilities, the identity and location of al-Qa’ida operatives and affiliated terrorist organizations and networks. He has provided information on al-Qa’ida’s strategic doctrine,
probable targets, the impact of striking each target set, and likely methods of attacks inside the United States.

In one instance KSM provided information that led us to a terrorist cell in Karachi, Pakistan. The members of the cell were being groomed by a terrorist named Hambali, al Qaeda’s point person for Southeast Asia, for operations against the United States, probably to fly a hijacked plane into the tallest
building on the West Coast
.

Despite the invaluable intelligence we were obtaining through the program of enhanced interrogation, in 2005 there was a move on Capitol Hill, led by Senators John McCain and Lindsey Graham, to end it and require that all U.S. government interrogations be conducted under the rules of the U.S. Army Field Manual. As one of the CIA interrogators explained to me, the Field Manual is adequate for interrogating run-of-the-mill enemy soldiers. “If one guy doesn’t want to talk to you, you can say, fine, and move on to the next, until you get to one who will talk.” But a detainee such as Khalid Sheikh Mohammed is different. He wasn’t talking, but there was no one comparable to move on to. For the safety of the nation we needed him to talk, and that happened after we put him through the enhanced interrogation program.