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The New York Times
24 October 2004
After Terror, a Secret Rewriting of Military Law
By TIM GOLDEN
WASHINGTON - In early November 2001, with Americans still staggered by the
Sept. 11 attacks, a small group of White House officials worked in great
secrecy to devise a new system of justice for the new war they had
declared on terrorism.
Determined to deal aggressively with the terrorists they expected to
capture, the officials bypassed the federal courts and their
constitutional guarantees, giving the military the authority to detain
foreign suspects indefinitely and prosecute them in tribunals not used
since World War II.
The plan was considered so sensitive that senior White House officials
kept its final details hidden from the president's national security
adviser, Condoleezza Rice, and the secretary of state, Colin L. Powell,
officials said. It was so urgent, some of those involved said, that they
hardly thought of consulting Congress.
White House officials said their use of extraordinary powers would allow
the Pentagon to collect crucial intelligence and mete out swift,
unmerciful justice. "We think it guarantees that we'll have the kind of
treatment of these individuals that we believe they deserve," said Vice
President Dick Cheney, who was a driving force behind the policy.
But three years later, not a single terrorist has been prosecuted. Of the
roughly 560 men being held at the United States naval base at Guantánamo
Bay, Cuba, only 4 have been formally charged. Preliminary hearings for
those suspects brought such a barrage of procedural challenges and public
criticism that verdicts could still be months away. And since a Supreme
Court decision in June that gave the detainees the right to challenge
their imprisonment in federal court, the Pentagon has stepped up efforts
to send home hundreds of men whom it once branded as dangerous terrorists.
"We've cleared whole forests of paper developing procedures for these
tribunals, and no one has been tried yet," said Richard L. Shiffrin, who
worked on the issue as the Pentagon's deputy general counsel for
intelligence matters. "They just ended up in this Kafkaesque sort of
purgatory."
The story of how Guantánamo and the new military justice system became an
intractable legacy of Sept. 11 has been largely hidden from public view.
But extensive interviews with current and former officials and a review of
confidential documents reveal that the legal strategy took shape as the
ambition of a small core of conservative administration officials whose
political influence and bureaucratic skill gave them remarkable power in
the aftermath of the attacks.
The strategy became a source of sharp conflict within the Bush
administration, eventually pitting the highest-profile cabinet secretaries
- including Ms. Rice and Defense Secretary Donald H. Rumsfeld - against
one another over issues of due process, intelligence-gathering and
international law.
In fact, many officials contend, some of the most serious problems with
the military justice system are rooted in the secretive and contentious
process from which it emerged.
Military lawyers were largely excluded from that process in the days after
Sept. 11. They have since waged a long struggle to ensure that terrorist
prosecutions meet what they say are basic standards of fairness. Uniformed
lawyers now assigned to defend Guantánamo detainees have become among the
most forceful critics of the Pentagon's own system.
Foreign policy officials voiced concerns about the legal and diplomatic
ramifications, but had little influence. Increasingly, the
administration's plan has come under criticism even from close allies,
complicating efforts to transfer scores of Guantánamo prisoners back to
their home governments.
To the policy's architects, the attacks on the World Trade Center and the
Pentagon represented a stinging challenge to American power and an
imperative to consider measures that might have been unimaginable in less
threatening times. Yet some officials said the strategy was also shaped by
longstanding political agendas that had relatively little to do with
fighting terrorism.
The administration's claim of authority to set up military commissions, as
the tribunals are formally known, was guided by a desire to strengthen
executive power, officials said. Its legal approach, including the
decision not to apply the Geneva Conventions, reflected the determination
of some influential officials to halt what they viewed as the United
States' reflexive submission to international law.
In devising the new system, many officials said they had Osama bin Laden
and other leaders of Al Qaeda in mind. But in picking through the hundreds
of detainees at Guantánamo Bay, military investigators have struggled to
find more than a dozen they can tie directly to significant terrorist
acts, officials said. While important Qaeda figures have been captured and
held by the C.I.A., administration officials said they were reluctant to
bring those prisoners before tribunals they still consider unreliable.
Some administration officials involved in the policy declined to be
interviewed, or would do so only on the condition they not be identified.
Others defended it strongly, saying the administration had a
responsibility to consider extraordinary measures to protect the country
from a terrifying enemy.
"Everybody who was involved in this process had, in my mind, a white hat
on," Timothy E. Flanigan, the former deputy White House counsel, said in
an interview. "They were not out to be cowboys or create a radical new
legal regime. What they wanted to do was to use existing legal models to
assist in the process of saving lives, to get information. And the war on
terror is all about information."
As the policy has faltered, other current and former officials have
criticized it on pragmatic grounds, arguing that many of the problems
could have been avoided. But some of the criticism also has a moral tone.
"What several of us were concerned about was due process," said John A.
Gordon, a retired Air Force general and former deputy C.I.A. director who
served as both the senior counterterrorism official and homeland security
adviser on President Bush's National Security Council staff. "There was
great concern that we were setting up a process that was contrary to our
own ideals."
An Aggressive Approach
The administration's legal approach to terrorism began to emerge in the
first turbulent days after Sept. 11, as the officials in charge of key
agencies exhorted their aides to confront Al Qaeda's threat with bold
imagination.
"Legally, the watchword became 'forward-leaning,' '' said a former
associate White House counsel, Bradford Berenson, "by which everybody
meant: 'We want to be aggressive. We want to take risks.' ''
That challenge resounded among young lawyers who were settling into
important posts at the White House, the Justice Department and other
agencies. Many of them were members of the Federalist Society, a
conservative legal fraternity. Some had clerked for Supreme Court
justices, Clarence Thomas and Antonin Scalia in particular. A striking
number had clerked for a prominent Reagan appointee, Lawrence H. Silberman
of the United States Court of Appeals for the District of Columbia
Circuit.
One young lawyer recalled looking around the room during a meeting with
Attorney General John Ashcroft. "Of 10 people, 7 of us were former
Silberman clerks," he said.
Mr. Berenson, then 36, had been consumed with the nomination of federal
judges until he was suddenly reassigned to terrorism issues and thrown
into intense, 15-hour workdays, filled with competing urgencies and
intermittent new alerts.
"All of a sudden, the curtain was lifted on this incredibly frightening
world," he said. "You were spending every day looking at the dossiers of
the world's leading terrorists. There was a palpable sense of threat."
As generals prepared for war in Afghanistan, lawyers scrambled to
understand how the new campaign against terrorism could be waged within
the confines of old laws.
Mr. Flanigan was at the center of the administration's legal
counteroffensive. A personable, soft-spoken father of 14 children, his
easy manner sometimes belied the force of his beliefs. He had arrived at
the White House after distinguishing himself as an agile legal thinker and
a Republican stalwart: During the Clinton scandals, he defended the
independent counsel, Kenneth W. Starr, saying he had conducted his
investigation "in a moderate and appropriate fashion." In 2000, he played
an important role on the Bush campaign's legal team in the Florida
recount.
In the days after the Sept. 11 attacks, Mr. Flanigan sought advice from
the Justice Department's Office of Legal Counsel on "the legality of the
use of military force to prevent or deter terrorist activity inside the
United States,'' according to a previously undisclosed department
memorandum that was reviewed by The New York Times.
The 20-page response came from John C. Yoo, a 34-year-old Bush appointee
with a glittering résumé and a reputation as perhaps the most
intellectually aggressive among a small group of legal scholars who had
challenged what they saw as the United States' excessive deference to
international law. On Sept. 21, 2001, Mr. Yoo wrote that the question was
how the Constitution's Fourth Amendment rights against unreasonable search
and seizure might apply if the military used "deadly force in a manner
that endangered the lives of United States citizens."
Mr. Yoo listed an inventory of possible operations: shooting down a
civilian airliner hijacked by terrorists; setting up military checkpoints
inside an American city; employing surveillance methods more sophisticated
than those available to law enforcement; or using military forces "to raid
or attack dwellings where terrorists were thought to be, despite risks
that third parties could be killed or injured by exchanges of fire."
Mr. Yoo noted that those actions could raise constitutional issues, but
said that in the face of devastating terrorist attacks, "the government
may be justified in taking measures which in less troubled conditions
could be seen as infringements of individual liberties." If the president
decided the threat justified deploying the military inside the country, he
wrote, then "we think that the Fourth Amendment should be no more relevant
than it would be in cases of invasion or insurrection."
The prospect of such military action at home was mostly hypothetical at
that point, but with the government taking the fight against terrorism to
Afghanistan and elsewhere around the world, lawyers in the administration
took the same "forward-leaning" approach to making plans for the
terrorists they thought would be captured.
The idea of using military commissions to try suspected terrorists first
came to Mr. Flanigan, he said, in a phone call a couple of days after the
attacks from William P. Barr, the former attorney general under whom Mr.
Flanigan had served as head of the Justice Department's Office of Legal
Counsel during the first Bush administration.
Mr. Barr had first suggested the use of military tribunals a decade
before, to try suspects in the bombing of Pan Am Flight 103 over
Lockerbie, Scotland. Although the idea made little headway at the time,
Mr. Barr said he reminded Mr. Flanigan that the Legal Counsel's Office had
done considerable research on the question. Mr. Flanigan had an aide call
for the files.
"I thought it was a great idea," he recalled.
Military commissions, he thought, would give the government wide latitude
to hold, interrogate and prosecute the sort of suspects who might be
silenced by lawyers in criminal courts. They would also put the control
over prosecutions squarely in the hands of the president.
The same ideas were taking hold in the office of Vice President Cheney,
championed by his 44-year-old counsel, David S. Addington. At the time,
Mr. Addington, a longtime Cheney aide with an indistinct portfolio and no
real staff, was not well-known even in the government. But he would become
legendary as a voraciously hard-working official with strongly
conservative views, an unusually sharp pen and wide influence over
military, intelligence and other matters. In a matter of months, he would
make a mark as one of the most important architects of the
administration's legal strategy against foreign terrorism.
Beyond the prosecutorial benefits of military commissions, the two lawyers
saw a less tangible, but perhaps equally important advantage. "From a
political standpoint," Mr. Flanigan said, "it communicated the message
that we were at war, that this was not going to be business as usual."
Changing the Rules
In fact, very little about how the tribunal policy came about resembled
business as usual. For half a century, since the end of World War II, most
major national-security initiatives had been forged through interagency
debate. But some senior Bush administration officials felt that process
placed undue power in the hands of cautious, slow-moving foreign policy
bureaucrats. The sense of urgency after Sept. 11 brought that attitude to
the surface.
Little more than a week after the attacks, officials said, the White House
counsel, Alberto F. Gonzales, set up an interagency group to draw up
options for prosecuting terrorists. They came together with high
expectations.
"We were going to go after the people responsible for the attacks, and the
operating assumption was that we would capture a significant number of Al
Qaeda operatives," said Pierre-Richard Prosper, the State Department
official assigned to lead the group. "We were thinking hundreds."
Mr. Prosper, then 37, had just been sworn in as the department's
ambassador-at-large for war crimes issues. As a prosecutor, he had taken
on street gangs and drug Mafias and had won the first genocide conviction
before the International Criminal Tribunal for Rwanda. Even so, some
administration lawyers eyed him suspiciously - as more diplomat than
crime-fighter.
Mr. Gonzales had made it clear that he wanted Mr. Prosper's group to put
forward military commissions as a viable option, officials said. The group
laid out three others - criminal trials, military courts-martial and
tribunals with both civilian and military members, like those used for
Nazi war criminals at Nuremberg.
Representatives of the Justice Department's criminal division, which had
prosecuted a string of Qaeda defendants in federal district court over the
previous decade, argued that the federal courts could do the job again.
The option of toughening criminal laws or adapting the courts, as several
European countries had done, was discussed, but only briefly, two
officials said.
"The towers were still smoking, literally," Mr. Prosper said. "I remember
asking: Can the federal courts in New York handle this? It wasn't a legal
question so much as it was logistical. You had 300 Al Qaeda members,
potentially. And did we want to put the judges and juries in harm's way?"
Lawyers at the White House saw criminal courts as a minefield, several
officials said.
Much of the evidence against terror suspects would be classified
intelligence that would be difficult to air in court or too sketchy to
meet federal standards, the lawyers warned. Another issue was security:
Was it safe to try Osama bin Laden in Manhattan, where he was facing
federal charges for the 1998 bombings of American Embassies in East
Africa?
Then there was a tactical question. To act pre-emptively against Al Qaeda,
the authorities would need information that defense lawyers and
due-process rules might discourage suspects from giving up.
Mr. Flanigan framed the choice starkly: "Are we going to go with a system
that is really guaranteed to prevent us from getting information in every
case or are we going to go another route?"
Military commissions had no statutory rules of their own. In past American
wars, when such tribunals had been used to carry out battlefield justice
against spies, saboteurs and others accused of violating the laws of war,
they had generally hewed to prevailing standards of military justice. But
the advocates for commissions in the Bush administration saw no reason
they could not adapt the rules, officials said. Standards of proof could
be lowered. Secrecy provisions could be expanded. The death penalty could
be more liberally applied.
But some members of the interagency group saw it as more complicated.
Terrorism had not been clearly established as a war crime under
international law. Writing new law for a military tribunal might end up
being more difficult than prosecuting terrorism cases in existing courts.
By late October 2001, the White House lawyers had grown impatient with
what they saw as the dithering of Mr. Prosper's group and what one former
official called the "cold feet" of some of its members. Mr. Flanigan said
he thought the government needed to move urgently in case a major
terrorist linked to the attacks was apprehended.
He gathered up the research that the Prosper group had completed on
military commissions and took charge of the matter himself. Suddenly, the
other options were off the table and the Prosper group was out of
business.
"Prosper is a thoughtful, gentle, process-oriented guy," the former
official said. "At that time, gentle was not an adjective that anybody
wanted."
Continued...
