Known and Unknown - Donald Rumsfeld [298]
In the months and years following 9/11, most detainees in American custody were categorized as unlawful enemy combatants. They were enemies who had ignored the long-established rules of warfare and, as a result, effectively waived the privileges accorded to regular soldiers. Some of these captured detainees were terrorists and insurgents who had attacked—and, in many cases, killed—American and coalition forces. Inevitably, others would be in our custody by mistake, as is also the case in our domestic criminal justice system.
We also knew that some detainees possessed potentially time-sensitive information that could prevent future attacks and save American lives. But while it was important to obtain that information, it was also imperative to put rules and safeguards in place to govern interrogations. In keeping with my oath of office, it was my duty to help protect the country and the American people from all enemies, and to preserve and defend the Constitution. We had a responsibility to protect innocent civilians. I was among those obligated to see to the effective and proper interrogation and detention of those captured in the war against terrorists.
Since 9/11, our primary responsibility was to prevent another attack on our people. On a near daily basis we were receiving fragmentary pieces of intelligence on a range of threats. Terrorists could use suitcase radiation weapons, or vials of anthrax or smallpox, that could spread widely and quickly, devastating the populations of major American cities. The questioning of those in Department of Defense custody provided information that saved innocent American lives. I make no apology for that.
From the outset of the global war on terror, one of the Defense Department’s tasks was to fashion a process for deciding whom to hold and whom to release. I pressed military commanders and intelligence officials with a number of questions: How many detainees should we plan to hold? For how long? At what locations? For what purposes?
This was a war that could be long and have no definitive end. We were fighting irregular forces—al-Qaida and other terrorists—not military personnel of a nation that upheld the laws of war. Our enemies were extremists motivated by an ideology in which it is perfectly acceptable, indeed in their minds a sacred obligation, to kill ordinary civilians—men, women, and children.
The longer America held detainees, the more problems we would have. The guidance I gave to the Department was to be highly selective, so that we would hold as few detainees as possible. I wanted procedures in place for promptly evaluating those captured on the battlefield, to release as many as possible without compromising American lives, and to transfer as many others as possible to the custody of their home countries. As I frequently told the President and others, the last thing we wanted was for the United States, let alone the Department of Defense, to become “the world’s jailer.”3
On November 13, 2001, the day Kabul was taken by the Northern Alliance, President Bush issued a military order formally appointing the secretary of defense as the “detention authority” for captured prisoners and for establishing the outlines of a justice system to try them.4 The order was the product of a series of discussions between White House and Justice Department lawyers.
The President’s order required that the Defense Department establish facilities to house suspected terrorists and conduct “military commissions to sit at any time and any place, consistent with such guidance regarding time and place as the Secretary of Defense may provide.”5 The order was based directly on decisions that had been made by presidents of both political parties during wartime, most recently by Franklin Roosevelt during World War II. Indeed, much of the language was taken verbatim from Roosevelt’s order establishing military commissions in 1942, which had been upheld unanimously by the Supreme Court of the United States.6
The relevant sentences of the President’s order