Known and Unknown_ A Memoir - Donald Rumsfeld [299]
I agreed with the President’s decision to shift from a peacetime approach, which treated terrorist acts as law enforcement problems, to a wartime footing, which deemed terrorism as an act of war. This fundamental change in philosophy was challenged by some who preferred trying terrorists in civilian courts of law After the fact and treating them as common criminals. The reality was that America had tried that approach for decades, and it had proven inadequate for stopping terrorist attacks before they occurred. Treating the conflict as a war—coupled with Congress’ september 18, 2001 authorization of the use of all “necessary and appropriate force” in the fight against terrorists—was the proper way to move beyond a reactive policy of retaliation and achieve the President’s goal of establishing proactive measures to prevent terrorist attacks against America.
Still I questioned whether our military was the appropriate institution to hold captured enemy combatants. From World War II through Korea and Vietnam to the first Gulf War, it was true that the military had shouldered the responsibility for the detention of captured enemy forces. But as I saw it, this unconventional conflict—against an amorphous enemy and with no finite duration—did not fit neatly within the laws of war pertaining to conventional conflicts. When it came to detention, our military had been schooled in holding enemies of regular armed forces—that is, lawful combatants entitled to prisoner of war (POW) status. Our armed forces did not have experience or established procedures for dealing with captured terrorists who, under the laws of war, were not entitled to the privileges of POWs.
What the President directed us to undertake required the advice of attorneys familiar with U.S. statutes and our international agreements. One of the notable changes I had observed from my service in the Pentagon in the 1970s was the prevalence of lawyers—in almost every office and in nearly every meeting. By the time I returned as secretary in 2001, there were a breathtaking ten thousand lawyers, military and civilian, involved at nearly every level of the chain of command across the globe. That the Department of Defense could function at all with ten thousand lawyers parsing its every move is astounding.
The number of laws and regulations relevant to the Defense Department had exploded correspondingly. Most elements of warfare in the twenty-first century were governed by complex legal requirements, from tactical rules of engagement to strategic issues involving negotiations over the Anti-Ballistic Missile treaty. It was a considerably bigger challenge than two and a half decades earlier, but we needed to ensure that the Department was always in compliance with the law.
Many fine attorneys worked on detainee affairs, including Harvard law graduate and former Army Captain William “Jim” Haynes II, who as general counsel was the Pentagon’s chief legal adviser. Haynes spared no effort to protect the interests of the armed forces while ensuring the Department’s activities were respectful of our nation’s laws. He and his large staffseized the nettle of detention issues from the outset. Haynes was aided by Dan Dell’Orto, a talented career civil servant and retired Army lawyer who had served in the Pentagon during the Clinton administration. The breadth and complexity of the issues Haynes, Dell’Orto, and the general counsel’s staffdealt with on any given day—personnel, procurement, courts-martial, promotions, intelligence, contracting, international law, and treaties—rivaled the workload of any government legal office.
The President’s November 13 order required that the Defense Department establish new rules for wartime detention. The guidance handed down by the President was that all detainees in U.S. custody were