Known and Unknown_ A Memoir - Donald Rumsfeld [316]
There is no doubt in my mind that I made the right decision when it came to rejecting the use of waterboarding by U.S. military personnel. Reasonable people can disagree whether it crosses the line into dubious territory.* It is one thing to argue against coercive interrogation techniques on moral grounds—that they are contrary to America’s values and therefore should never be employed. It is quite another to argue against those techniques on practical grounds—that they do not and will not work. While it may make a convenient plank for critics’ arguments against the CIA’s interrogation program, there are inconvenient facts to the contrary that must also be taken into account.*
The men and women of the CIA were given a challenging assignment to interrogate senior al-Qaida operatives. I saw the challenges up close when we discovered that the likely twentieth hijacker of the 9/11 attacks was in Defense Department custody. Administration lawyers fully vetted and approved the CIA’s program, giving them the green light to proceed. The men and women of the Central Intelligence Agency who elicited critical information from well-connected al-Qaida members, deserve our respect, not condemnation. They are patriots, not criminals.
CHAPTER 40
Law in a Time of War
Before 9/11, our nation had tried treating terrorists as common criminals to be investigated by U.S. law enforcement agencies and tried in U.S courts of law. Our country’s counterterrorism strategy hinged on hopes that the FBI or local police would get lucky and stop an attack, and then use American courts to try to bring the culprits to justice.
The law enforcement approach not only failed to prevent terrorist attacks from the first World Trade Center bombing in 1993 to the attempted sinking of the USS Cole in 2000, it made it even more difficult to track down the enemy. For example, in 1998, within days After documents made public in court revealed that the United States could intercept Osama bin Laden’s cell phone and his GPS location, bin Laden stopped using mobile devices.* If it wasn’t clear enough already, the deaths of nearly three thousand American citizens painfully drove home the inescapable conclusion that the U.S. law enforcement approach to terrorism had failed miserably and inflicted a great cost on our nation. President Bush decided America could not afford to keep making the same mistakes.
In mid-November 2001, the President announced that trials for terrorist detainees would be held by specially designed military commissions—not ordinary civilian courts and not military tribunals under the Uniform Code of Military Justice. Terrorists were enemies in wartime, no longer domestic criminals. His order of November 13 specified, “Any individual subject to this order shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death.”2
President Bush based this order on longstanding American legal precedents. Military commissions, designed to provide due process but specially suited to the circumstances of the conflict at the time, have been used by the United States in many of its wars since the founding of the Republic.* They were established to provide fair trials for enemies accused of war crimes and other offenses. The military commission’s procedures have differed from those of existing tribunals—that is, from civilian courts as well as from military courts-martial—otherwise there would have been no point in creating the commissions.
The best-known military commission was created in 1942 by President Franklin Roosevelt to try eight Nazi saboteurs. All of them had lived in the United States at some time prior to the outbreak of World War II,