Global Policy Forum

How US Rewrote Its Laws on Terrorism

New York Times
October 25, 2004

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 Secretary of State Colin 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," Vice President Dick Cheney, who was a driving force behind the policy, told a meeting of the U.S. Chamber of Commerce on Nov. 15, 2001. But three years later, not a single terrorist has been prosecuted.

Of the roughly 560 men being held at the U.S. naval base at Guantánamo Bay, Cuba, only four 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. 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 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 important officials and a review of confidential and classified documents reveal that the legal strategy for dealing with terrorism 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 Sept. 11. Almost immediately, the strategy became a source of sharp conflict, pitting the highest-profile cabinet secretaries - including Rice and Defense Secretary Donald Rumsfeld - and other officials 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 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 Guantánamo prisoners to their home governments. To the policy's architects, the attacks on the World Trade Center and the Pentagon represented a stinging challenge to U.S. 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, current and former officials said. Its legal strategy, 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 designing the new military justice system, many of the 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 prosecutors have struggled to find more than a dozen they can tie directly to significant terrorist acts. Although important Qaeda figures have been captured and held by the CIA, 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 named. 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 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."

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."' 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. Flanigan, then deputy White House counsel, was at the center of the administration's legal counteroffensive. He had arrived at the White House after distinguishing himself as an agile legal thinker and a Republican stalwart. 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, 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 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 conservative legal scholars who had challenged what they saw as the United States' excessive deference to international law. On Sept. 21, 2001, 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." Yoo noted 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 that 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."

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, current and former officials said, the White House counsel, Alberto Gonzales, set up an interagency group to draw up options for prosecuting terrorists. But by late October 2001, the White House lawyers had grown impatient with what they saw as the dithering of the group and what one former official called the "cold feet" of some of its members. 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 group had completed on military commissions and took charge of the matter himself. Suddenly, the other options were off the table. With the White House in charge, current and former officials said, the planning for military tribunals moved forward more quickly, and more secretly. Whole agencies were left out of the discussion. So were most of the government's experts in military and international law. The legal basis for the administration's approach was laid out on Nov. 6, 2001, in a confidential 35-page memorandum sent to Gonzales from Patrick Philbin, a deputy in the Justice Department's legal counsel's office. (Attorney General John Ashcroft has refused recent congressional requests for the document, but a copy was reviewed by The Times.) The memo's plain legalese belied its bold assertions. It said the president, as commander in chief, had "inherent authority" to establish military commissions without congressional authorization. It concluded that the Sept. 11 attacks were "plainly sufficient" to warrant applying the laws of war. Opening a debate that would later divide the administration, the memo also suggested that the White House could apply international law selectively. It stated specifically that trying terrorists under the laws of war "does not mean that terrorists will receive the protections of the Geneva Conventions or the rights that laws of war accord to lawful combatants."

The central legal precedent cited in the memo was a 1942 case in which the Supreme Court upheld President Franklin D. Roosevelt's use of a military commission to try eight Nazi saboteurs who had sneaked into the United States aboard submarines. Since that ruling, revolutions had taken place in both international and military law, with the adoption of the Geneva Conventions in 1949 and the Uniform Code of Military Justice in 1951. Even so, the Justice memo said the 1942 ruling had "set a clear constitutional analysis" under which due process rights do not apply to military commissions. Roosevelt, too, created his military commission without new and explicit congressional approval and authorized the military to fashion its own procedural rules. He also established himself, rather than any military judge, as the "final reviewing authority" for the case. David Addington, counsel in Cheney's office, seized on the Roosevelt precedent as a model, two people involved in the process said, despite vast differences. Roosevelt acted against enemy agents in a traditional war among nations. Bush would be asserting the same power to take on a shadowy network of adversaries with no geographic boundaries, in a conflict with no foreseeable end. Bush played only a modest role in the policy debate, senior administration officials said. In an initial discussion, he agreed that military commissions should be an option, the officials said. Later, Cheney discussed a draft of the order with Bush over lunch, one former official said. The president signed the three-page order on Nov. 13. No ceremony accompanied the signing, and the order was released to the public that day without so much as a media briefing. But its historic significance was unmistakable. The military could detain and prosecute any foreigner the president or his representative determined to have "engaged in, aided or abetted, or conspired to commit" terrorism. Echoing the Roosevelt order, the Bush document promised "free and fair" tribunals but offered few guarantees: There was no promise of public trials, no right to remain silent, no presumption of innocence. As in 1942, guilt did not necessarily have to be proved beyond a reasonable doubt, and a death sentence could be imposed even with a divided verdict. Despite the similarities of the policy to the Roosevelt order, some military and international lawyers were struck by the differences. Some of the officials who helped devise the new system of justice would later explain the influence they exercised in the chaotic days after Sept. 11 as a response to a crisis. But a more enduring shift of power within the administration was taking place - one that had significant consequences on how terror suspects would be detained and interrogated.

Jack Begg contributed research for this article.

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