Known and Unknown - Donald Rumsfeld [325]
The military commissions and other detainee-management matters would have benefited from greater consideration of policy, politics, and diplomacy. That was less likely to happen if the issues were handled as legal matters in interagency meetings of lawyers, who were often not accompanied by policy officials. Legal advice is critical in defining boundaries, to be sure, but it should not be determinative, in that within the legal boundaries there is often a range of possible policy options.
The overly legal focus on wartime detention issues had consequences outside of the executive branch. I now believe that if we had directly engaged Congress from the outset and solicited its public involvement in crafting wartime detention legislation, we might have had a richer debate, and then implemented policies that would have commanded greater support at home and abroad. Of course, Congress, at its initiative, also could have become involved in these discussions from the outset, but the relevant players declined to do so.
Though early legislation on wartime detention would probably not have headed off all the problems, it might have helped. I say this even though I doubt the practices devised in partnership with Congress would have been notably different from those that the administration actually adopted and implemented. But by involving Congress, the administration might have taken into account a broader array of considerations, and at least been inoculated against the charge that it was acting in an unchecked and unlawful fashion. At the minimum, it would have built some defenses against many of the rhetorical attacks directed at essential efforts in the struggle against Islamist extremists. It would have also made clearer that the detainees are not just the Pentagon’s problem or the President’s problem, but the country’s problem—indeed, a problem for the civilized world.
The way the administration reached decisions on detainee policy was generally consistent with a predisposition to protect the historic powers of the presidency. There was good reason to be concerned about preserving the commander in chief’s constitutional national security and war powers. After 9/11, calls for greater security through prompt action came from every quarter of the country. By constitutional design, Congress is intended to be slow—to promote deliberation and the weeding out of ideas that may be popular for a moment, but imprudent. Congress was not intended or organized to meet the demands of operational decision making in a crisis. America’s founding fathers knew what they were doing when they put the powers to conduct war in the hands of a single commander in chief, not those of a committee composed of the 535 members of the national legislature.
With these thoughts in mind, the administration—especially the lawyers—did not favor asking for legislation in areas in which the president already had robust constitutional authorities because it would set precedents that permanently limited the authority of future presidents. I shared that concern, but it may not have taken fully into account the broader picture—the complete set of strategic considerations of a president fighting a protracted, unprecedented, and unfamiliar war for which he would need sustained domestic and international support.
Vice President Cheney appreciated the importance of preserving the President’s powers as commander in chief, especially when they were under assault for short-term political reasons. Cheney and his chief legal counsel and later chief of staff, David Addington, supported by senior lawyers from around the government, helped guard presidential authority as a matter of principle. Looking back, it is possible that the weight given to it may have contributed to an outcome the administration hoped to avoid: encroachment on the president’s powers as commander in chief by the Congress and, particularly, by the judiciary.2 Both the Congress and the judiciary now arrogate to themselves