Berenson was associate White House counsel to President Bush from January 2001 to January 2003. Now an attorney in private practice in Washington, Berenson talks about how the need for "forward-leaning" thinking that emerged in the days and months after the 9/11 attacks drove the president's advisers to give him as much power as possible to prevent other attacks. "Everybody had to assume at that time that further attacks or perhaps even worse, were planned," he explains. "And all of us were concerned with ensuring that the president had the full complement of tools and weapons at his disposal that came with his office…" Berenson, like John Yoo and some other lawyers advising the president, was a member of the Federalist Society and had clerked for U.S. Appeals Court Judge Lawrence H. Silberman. This is the edited transcript of an interview conducted on July 14, 2005.
… Did you know that something really fundamental had changed in the country [after 9/11]?
Yeah, I think I appreciated that very quickly. I was probably one of the relatively small number of people that knew about Al Qaeda prior to 9/11, and my early assumption was that it was an attack by them and by bin Laden. And the scale of the destruction and devastation and loss of life was immediately apparent, and I think I sensed pretty quickly that this was not garden-variety, low-tech terrorism; this was not business as usual. Something fundamental had changed. It took a day or two for a lot of that to crystallize in my mind after the president had made some pronouncements on the subject, after I had read some additional analyses. But 9/11 was a day that I knew on that day would probably stand out in my memory forever.
And the mood in the White House, when you could get back in there and get to work, what did it feel like? Did it feel different?
Absolutely. It felt very different. In the afternoon of Sept. 11, 2001, the White House staff reconvened in some private offices near the White House to provide the president whatever support he needed. And that was a very somber affair. When I first walked into that building, I was informed by Viet Dinh, who was then assistant attorney general in charge of the Office of Legal Policy, that Barbara Olson, a solicitor general's wife and a friend of mine, had been killed in the attack on the Pentagon, which made everything even more personal than it already was.
The other thing to remember is that there was a palpable sense of threat in the city on that afternoon. Nobody knew whether there were going to be further attacks, and I had to show my White House pass just to get into the city from outside. I had taken my family to a safe place and then turned right around after arranging some law library facilities for me and my colleagues at a local law school for that evening in case we couldn't get back into the White House.
And coming back downtown, by the time I got back downtown, it was an absolute ghost town. There were essentially no cars on the street, military was all over the streets, and it was only my White House credentials that essentially allowed me to get into the center of the city, which was a war zone. So the mood was very, very different. Everybody came in on the morning of Sept. 12, 2001, which was the first day that most of us got back into the complex, I think with a real sense of mission and sense of purpose, and at least for my part a sense of great privilege and good fortune of being in a position where I could try to make a difference in dealing with this new threat.
Did you see the president during those first couple of days?
No, I didn't personally. When a national crisis of this kind occurs, a few things happen. First, power is drawn into the center, so the White House and the White House staff become much more involved in directing day-to-day policy in a variety of areas than they otherwise would be. Under normal circumstances, policy would be developed through a slow, deliberate and interagency process with some supervision by appropriate White House staff. But when decisions have to be made quickly, and when action has to be taken fast, the unitary executive, the president, who's vested with commander-in-chief powers under the Constitution, gathers that power into himself and acts through the people who are directly, most directly, his agents and at his right and left hand. So the White House staff becomes much more involved.
But concomitant with that, the president himself becomes much more scarce to the lower levels of the White House staff. That is, the president himself was spending most of his time only with the senior members of his national security team dealing with this. And those of us who otherwise might have seen him or dealt with him under normal circumstances saw much less of him initially. The chief of staff did try to communicate with the rest of the staff. I remember a meeting that was held in Room 450 of the Old Executive Office Building, where Andy Card, in his typically gracious and understated way, essentially told us, among other things, that the circumstances of our service had obviously changed; that he understood that this is not what we had bargained for when we joined the staff, and it wouldn't be held against any of us if we wanted to leave. Nobody took him up on that invitation, obviously.
But this was at a time when people felt genuinely like the White House was under threat, the White House staff was under threat, the nation as a whole was under threat. We were given security precautions by the Secret Service to take in just commuting to and from home to the White House. There were periodic evacuations of the White House complex during those first couple of weeks, enhancing the sense of threat. We were advised early on that the Secret Service was unable to protect those of us who had offices over on the 17th Street side of the building and that plans were under way to evacuate that side of the building and move offices because the threat of a car bomb or a truck bomb over there with the quantity of glass on that side of the building was too great. But still, there were four or five weeks when those of us with offices on that side of the building had to sit in front of our picture windows wondering whether every unmarked white panel truck passing by represented a potential threat.
There was a member of the staff who for most of the first couple of weeks was literally throwing up in her trash can. In retrospect, I think we all understand that there was nothing for us to really worry about, but people were certainly afraid. Mysterious vans show up on the White House complex, sniffing the air for chemical and biological agents. I mean, it was a radically different atmosphere than it had been. And I remember thinking to myself in the first few days after 9/11 that really everything that had gone before in my White House service just seemed like fun and games by comparison.
… People keep saying to us is there was a lot of talk about being "forward-leaning" in the process and thinking. Tell me what that meant.
Well, there were a powerful set of shared assumptions that we had in the wake of 9/11, and one of the most powerful was the assumption that we would never be forgiven if we failed to do something that was within the power of our government lawfully to protect the public from a further attack. We had no idea whether further attacks were planned. Everybody had to assume at that time that further attacks on the scale of 9/11, or perhaps even worse, were planned. And all of us were concerned with ensuring that the president had the full complement of tools and weapons at his disposal that came with his office, that he was properly advised on how they could and should be used, and that as a whole, the United States government, the executive branch of government, was doing everything that it could to protect the public safety and to try to prevent another loss of life on the scale of 9/11.
And that extended not just to the prevention of further terrorist acts, but also to such considerations as preserving the continuity of our government in the event that we were unable to prevent further attacks and various highly classified programs were triggered for the first time since the depths of the Cold War to ensure that a mass-casualty attack on Washington would not prevent our government from functioning properly.
And thinking about the mind-set that we all brought to our tasks, you have to understand that many of us were spending nights on a regular basis in some very, very unusual places -- things out of a James Bond movie, frankly. And that certainly colors how you think about things. If you believe that the central institutions of our government are under such threat that the people who work for the president need to maintain, as was recorded publicly in the press several months later, in essence a shadow staff in a safe location that would be capable of transferring power to a successor president if the current president were killed in an attack, that certainly underscores the seriousness of the threat that you're facing and how much will and power has to be brought to bear to reduce it.
[When does the idea of whether the Geneva Accords apply begin to get thrashed out?]
We began thinking about potential legal and policy issues that would arise from the capture of foreign terrorists very, very soon after 9/11. ... So the following conundrum occurred to all of us, most of whom had no background at all in these issues, which is this: When you capture a suspected Al Qaeda terrorist, what do you do with him? You can't kill him once you have him in custody and he's been captured. That would be a violation of international law. You can't let him go because he's far too dangerous and potentially far too valuable as a source of intelligence. And you can't, in many cases, try him in the ordinary civilian court system. So what do you do with this person?
The good news is that the United States government has people within it who are experts in virtually every aspect of law, and this case was no exception. It turned out that there was hundreds of years of law on this subject, and the answer was provided by the laws of war, or the laws of international armed conflict.
Of course, before you get there, you have to have accepted the paradigm shift, that this is in fact a matter of war and that it calls for the exercise of the president's powers as commander in chief and a military response, rather than a matter of law enforcement that call for an exercise of the president's powers as the nation's chief law enforcement officer. But the president articulated forcefully and very convincingly in the wake of 9/11 that the nation was, in fact, at war with these people. Our adversaries had known that and publicly declared that for a long time, but we had made the mistake of not taking them at their word and not taking them quite seriously enough.
But once you appreciate and understand that this is in fact an existential threat to our government and to our way of life, that it is a military conflict, even if of an unconventional character, the answers to a lot of these questions about how to deal with detainees become fairly clear-cut. Under the international laws of armed conflict, you are entitled to capture and hold until the end of hostilities individuals who are fighting against you. You are not required to charge them with a crime. You are not required to provide them with a lawyer or access to your courts. And you are not required to let them go return to the battlefield and fight against you and prolong the armed conflict and all of the suffering that that inevitably entails.
There are some issues of classification that arise, but we didn't regard those as particularly difficult, either. You do have to decide whether the person you've captured is what's known as a lawful combatant -- and a lawful combatant is entitled to a certain status under international law and has to be treated in a certain way -- or whether the person you've captured is an unlawful combatant; that is, someone who fights by violating the laws, usages and customs of war, and in so doing, presents an unusual and unacceptable threat to civilian populations, and therefore has a lower status under international law and is entitled to many fewer protections.
As it happens, the core group of people that we were worried about, militant Islamic terrorists affiliated with Al Qaeda or otherwise, were clearly unlawful combatants. The requirements under international law for lawful combatancy includes such things as wearing insignia so that you can be clearly distinguished from the civilian population, bearing arms openly, being part of a chain of command that can ensure that you yourself follow the laws of war as you fight, and finally and most importantly, obeying the laws of war yourself, acknowledging that you are bound by them and prevented, for example, from hiding in civilian populations or attacking undefended civilian sites or civilian populations that have no military value. ...
It was clear to everybody that Al Qaeda and the other militant Islamic terrorists were unlawful combatants by virtually any definition and as such were entitled to the lowest level of protection under international law of any category of people involved in an armed conflict. That had implications, too, for the Geneva Conventions, because prisoner-of-war status under the Geneva Conventions is tied to some of the same things as lawful combatancy.
From the very start, our intention was to treat them better than the bare minimums that international law required, because as we understood the requirements of international law with respect to terrorists and unlawful combatants, they were fairly minimal. So we were determined to treat them in all respects humanely and to afford them more rights and more protections and better treatment than they might be entitled to.
Historically, the view under international law a long time ago was essentially the lives of unlawful combatants, terrorists, saboteurs, jayhawkers and the like were forfeit and that they could essentially be summarily executed when captured, as they routinely were during the wars in our nation's earlier history. International law had evolved somewhat from that point, but still an unlawful combatant was in a pretty unenviable position from a legal perspective.
And presumably, just practically speaking, there was a desire to extract information ... about where they're going to hit us next?
Absolutely. One of the imperatives was to be able to effectively interrogate those whom we capture, to interrogate terrorist detainees. Under the Geneva Conventions, you're entitled to interrogate prisoners, but they're under no obligation to furnish any information to you other than their name, rank and serial number. And you are not entitled to offer them any inducements or to impose any sorts of punishments or negative pressures on them designed to convince or coerce them to provide anything more. Had we been forced to operate under those rules with respect to the militant Islamic terrorists we were fighting, I suspect that the intelligence dimension of this war, which most of us regarded as absolutely central to our success and to protecting the American public, would have been far less successful.
So take me into some of the early meetings.
The first thing to bear in mind is that we were all in the weeks and months after 9/11 drinking from a fire hose. The number and the scale of the problems, both domestically and internationally, confronting the president and his staff and the rest of the government were absolutely enormous. And so nobody had time to spend months chewing over things that under other circumstances they might have been inclined to spend months chewing over.
One example of the attention to civil liberties is that the "domestic consequences group" within the White House that was trying to deal with some of the domestic fallout of the attacks -- impact on the airline industry, the impact on the insurance industry, the impact on lower Manhattan and the effort to just recovery physically from the attacks in New York City -- that there was early on for that domestic consequences team a lawyer essentially tasked with trying to make sure that nothing we were doing in our domestic response was going to be discriminatory or constitute an undue abridgement of civil liberties. So there was in essence a kind of watchdog or ombudsman appointed just to keep our eye out for those kinds of issues, to sound an alarm if anybody felt we were going too far or doing things that in the light of history would be seen as excessive or unwise.
In terms of attention to the law and to the legal requirements, there were lengthy, lengthy meetings with the experts on the international laws of armed conflict, from the Justice Department's Office of Legal Counsel, from the Department of State, Office of War Crimes, from the Department of Defense, to teach all of us who had had no previous exposure to that body of law what we needed to know in order to begin working with it and evaluating the policy options and providing advice to the president.
Is it safe to say that from almost the beginning, the presumption was "Let's give the president maximum room to move? Let's give ourselves maximum room"?
Consistent with law.
Consistent with law?
That was really the main restraint. That is, all of the lawyers -- the White House lawyers, the Justice Department lawyers, the State Department lawyers, the Pentagon lawyers -- had grown up in the American legal profession, which stresses that no one's above the law, and that the president, no less than other people, is subject to it, and that really our best protection against tyranny, historically, has been careful attention to and respect for law. So I never heard anybody advocating violation of law or some sort of emergency exception to legal requirements.
But it's absolutely the case that all of us felt that the president had to act to the maximum extent of his lawful authority under the Constitution and statutes of the United States. And this is what really led to the military order of Nov. 13, 2001, authorizing the creation of military commissions. None of us knew for certain whether military commissions would or would not be needed, would or would not be a wise way to try the war criminals of Al Qaeda that we were catching. But we wanted to make sure that that tool was available if and when the president and the secretary of defense decided that it was needed. So an early priority was placed on getting an order together that would authorize the creation of military commissions.
Recently there's a sense that has, I think, become sort of prevalent domestically and internationally because of some of the criticism that has been leveled at the administration's policies, that there was something unusual or new about military commissions. And nothing could be further from the truth. They've been used for hundreds of years, literally since the founding of the republic. George Washington used them in the Revolutionary War to try Maj. John Andre who was complicit in the Benedict Arnold spy ring. They were used during the Civil War. In fact, Lincoln's assassins were tried by military commission. And they had been used as recently was World War II to try the German saboteurs who had come ashore on Long Island from a submarine with the intent to commit domestic acts of terrorism, to blow up buildings here in the United States.
So there was abundant precedent for the use of military commissions. They were, in fact, the traditional way of dispensing justice to alien enemy combatants who had committed, allegedly committed, war crimes. And we wanted to make sure, all of us wanted to make sure, that that was a tool that the president had in his toolbox if and when he needed to use it. So the premise of your question is certainly correct. We all wanted to ensure that the president could act to the maximum extent of his lawful authority.
[But there was a difference of opinion.] The uniformed military almost [from] the very beginning was saying it would go with the military code of justice -- "We'll apply those standards to everybody we grab."
Some were; some weren't. I was certainly in meetings where representatives of the uniformed military were fully on board of the notion of military commissions. I don't know what Secretary [of Defense Donald] Rumsfeld himself thought, although I certainly never got an indication he was opposed to it. But [the] general counsel's office of the Department of Defense was involved in these discussions, and I certainly don't recall any opposition by them to the notion that the people we were fighting against were unlawful combatants or that military commissions were an appropriate way to dispense justice to them.
I think what you find is that lower down in the military, among the military lawyers, people who were at least a step or two removed from the central policy-making apparatus at the apex of the executive branch, may have had those feelings. But that could also have been from a lack of imagination on their part or a lack of a full appraisal of all the policy considerations on both sides. But the lawyers at the tops of the relevant departments and agencies were not riven by substantial dissent that I can recall.
There were serious battles between Defense and State about lots of other things, and that a lot of uniformed people were worried about Rumsfeld's battles with [then-Secretary of State Colin] Powell. ...
In general, the State Department was the outlier on a lot of these issues. ... The State Department was consistently less aggressive in treating this as a war than some of the other departments and agencies, and less aggressive in endorsing the implications of treating it as a war. Now, that's not uniformly true. The Office of War Crimes in the State Department, the war crimes ambassador, Pierre Prosper, and people who worked for him really were fully with the program and fully supportive in many of these areas. And indeed, they were deep, deep experts in international law and practice in dealing with war crimes. And many of the examples and precedents we had before us as we decided what the United States would do were examples from the international criminal tribunal for the former Yugoslavia, for example, the international criminal tribunal dealing with Rwanda. Many employed some of the very same procedures that are embodied in the procedures used by U.S. military commissions. So it would be wrong to overstate the extent of the disagreement, even where the State Department was concerned.
The Geneva Conventions debate was somewhat different in that regard. I wasn't centrally involved in that particular debate; there are better people to talk to about that. But the lineup when there was controversy was typically the Department of Defense and the Department of Justice on one side and the Department of State on the other, advocating a more lenient or less muscular, less aggressive approach. The White House, I think, invariably following the president's direction and understanding of the conflict, lined up with the Department of Justice and the Department of Defense in favor of the more muscular approach. I think those were probably frustrating times for some people in the State Department.
Many people we talked to say that the president['s] Feb. 7, 2002, [memo] announcing Geneva will kind of apply has a loophole big enough to drive a truck through, giving him as much wiggle room as possible.
Well, he did not announce that the Geneva Conventions applied to these detainees. He announced the opposite: that as a matter of law, these folks were not covered by the Geneva Conventions. They didn't have a right to insist on the protections afforded by the Geneva Conventions, many of which made very little sense as a practical matter when applied to people like this. I mean, the notion of paying senior Al Qaeda leaders a monthly stipend in Swiss francs for them to spend at the canteen is a little bit silly when you think about it. The notion of supplying people who are potentially suicidal maniacs with knives and forks, cutlery, as you're required to do under the Geneva Convention for the preparation of their own food, doesn't make a tremendous amount of sense. And the president came to the conclusion that the United States was not required, in fact, to afford the full panoply of Geneva rights to these detainees when they were captured.
He did, however, say that we were going to afford them humane treatment consistent with principles of international humanitarian law and that we would treat them generally in accordance with Geneva, except to the extent that exigency, military necessity required otherwise. That's entirely consistent with what he was saying, which is we're doing this as a matter of grace, as a matter of policy; we're going to do it insofar as it doesn't impede the war effort. It was not intended as a loophole, because there was no rule that you needed a loophole to get through. All the president was saying is these people are unlawful combatants; they are not entitled to Geneva status. They are not POWs, but insofar as we can without hampering the war effort, we're going to treat them in accordance with those bodies of law.
Was somebody saying: "Hey, the rule of law has been the way America has approached things forever, and we're the good guys, and this is just a little squishy. This is a potential for ad hoc mess out there in the world, [and] we've got to be really careful now"?
Well, all of us working on these issues believed at all times that everything we were doing was fully consistent with the rule of law. It just happened to be a different body of law from that which people were accustomed to. Everybody had gotten so used to the rights of criminal defendants who were accused or ordinary transgressions of United States laws applying to civilians that they had forgotten that there's an entirely different body of law out there that arises under international law that governs what you do during war and how you are required to treat your adversaries during war.
[Why were the detainees moved to Guantanamo?]
Well, Guantanamo has a number of important advantages as a place for the long-term capture and detention of terrorists. First and foremost, it's completely secure. It's a U.S. military base outside U.S. territory, so as such, there are fewer risks to our civilian population should there be escapes, and it serves as less of a magnet for terrorists to try to infiltrate our territory and our soil for the purpose of executing prison breaks. So security was a major advantage.
I think the proximity to the United States was also perceived as an advantage, because it would give policy-makers, initially in the executive branch but also in Congress, from NGOs [non-governmental organizations], international humanitarian groups like the Red Cross, and indeed ultimately the press, better access to these people. Had they been kept in a war zone, it would have been harder to get access to them for everybody concerned with what was going on with them and their welfare.
And I think also at that time, we thought the fact that Guantanamo was outside the territory of the United States would eliminate an important legal ambiguity. As it turns out, we were wrong. The Supreme Court told us in the Rasul decision that we were wrong. But we believed that there was a chance that even alien enemy combatants, if held on U.S. soil, would have a right of access to our courts by way of writ of habeas corpus. And we did not want to see terrorists whom we were in the midst of interrogating filing lawsuits against the president of the United States and the secretary of defense simultaneously, insisting that they had a right to see lawyers who would tell them to stop talking to us and the like. So that was another perceived advantage of Guantanamo as opposed to some of the alternatives.
Was there worry that there'd be a blowback in future war crimes, future war tribunals, things that would come back on the president?
There was not a sense -- I didn't have it, and none of the people that I worked directly with seemed to have it -- that in being forward-leaning, we were running serious risks of going over legal lines, such that that kind of protection would be required. We were all at all times completely convinced that what we were doing was lawful and consistent with the international laws of armed conflict.
[Some people read these things now, parse them and see language that seems like it was just meant for future readers of the history books as a cover-your-ass paper record.]
I would need to take a look at whatever specific thing you're talking about, but the working assumption at the time was that these documents, whatever they were, weren't going to see the light of day any time soon. They were covered by executive privilege, most of them, the Presidential Records Act, and nobody was writing things that I know of at the time for public consumption, present or future. I think you can pretty much count on the fact that the documents you see created during that period represent what people genuinely thought at that time.
Now, there were instances where the White House wanted comfort that what we were proposing to do was lawful. And in that instance, we would turn to the Department of Justice and ask the Office of Legal Counsel for its advice, which is what it's in the business of doing, is furnishing legal advice to the executive office of the president so that the president's lawyers and the White House can be sure that its courses of action the president's taking are consistent with law. So if that's what you mean by "cover your ass" -- that is, getting legal opinions that tell you where the lines are and that confirm that what you propose to do is consistent with law -- then I suppose in that sense it was going on. But that's just good, careful lawyering generally.
When do you, get a sense, if ever, that things aren't going so well at Guantanamo?
That has to have happened after I left the White House, I think. I left in January of 2003 and I don't remember any sense at that point that there were real problems with Guantanamo or treatment of prisoners at Guantanamo. Now, I should say I wasn't intimately involved with the operational details of Guantanamo. I never got involved in any of these questions about appropriate methods of interrogation and where the line between appropriate psychological pressure and torture lay. These were all things that were dealt with by other folks, and so I wasn't even aware of those debates at the time.
In terms of the intelligence take, while I was there, we continued to hear that the interrogations were productive and that we were learning a lot about Al Qaeda and its methods from the Guantanamo detainees. I remember that the teams that were trying to put together war crimes cases against some of the detainees were finding that a difficult task because, you know, in many cases it's difficult to be sure of the identity of the person you capture. They give you an alias. Arabic names or aliases are often very, very difficult to trace and track down. It takes assiduous effort over months working with cooperative foreign intelligence services and the like, to be even be sure you know who you're holding in terms of correct name.
And so the teams that were looking to build legal cases that might be brought in military commissions or elsewhere against the detainees, I do recall were feeling that it was heavy sledding, slow going. But the overall enterprise of detaining enemy combatants at Guantanamo Bay and interrogating them there in an effort to gather intelligence, during the time I was in the White House I think was always regarded as successful. …
It's about sometime in here that the JAGs [judge advocates general] start grumbling: "Wait a minute. Something really weird is going on. ... We feel like there's new advice being offered, coming in, that we're not aware of where it's coming from. We feel like we're being sidelined. We feel like our old rules of the road are being looked askance at; that it's a new day and a new dawn and something else is going on." We now know that … John Yoo and others [were] writing and advising Secretary Rumsfeld and others about a new attitude, what some people have called the "new paradigm."
Yeah, in general terms, yes. There was certainly a sense that there was a group of people, a group of lawyers in the executive branch who really were the political appointees most directly accountable to the president, who understood the new threat, who understood the new paradigm, who understood the imperative to be forward-leaning and to be aggressive in trying to protect American national security and American civilian life.
And there were other people who were a little bit imprisoned in old categories, old rules, who hadn't fully made the transition, made the shift into accepting acts of catastrophic, mass-casualty terrorism as true acts of war that really did call forth a military response and call upon the president's powers as commander in chief. You know, there are things that lay within the outer margins of the president's authority that for a variety of reasons over the years simply hadn't been done. But in the new environment, with the new attitude, we were now determined to do that.
So for example, on Sept. 24, 2001, I think it is, the first blocking order was issued by the president, freezing the assets of foreign terrorist groups, terrorists, some businesses and some Muslim charities. In a variety of respects, that order was more aggressive and exerted presidential authority closer to the limits of the law than had ever been done before. And there were people in the interagency discussions about that order who were very, very nervous about it, simply because it hadn't been done before -- not because it wasn't lawful, not because it wasn't within the president's power, but because it was new and unfamiliar and different.
There was relatively little tolerance for that kind of timidity in the weeks and months after 9/11. People were either on the bus or off the bus. The people who were on it were driving it; the people who were off it were typically ignored to a large extent. But that doesn't mean that there was any feeling on the part of the people who were on the bus that we were going to expand presidential power. The trick was really to make sure its full existing extent was used.
The FBI decided fairly early that they were going to be over there in Afghanistan trying to make criminal cases. They believe they've known a lot about Al Qaeda, that they are the repository of all the information about important and salient information about Al Qaeda that could be really useful in intelligence gathering in a strategic way. ... By the time they get to Guantanamo, they're still trying to do their thing; they're trying to make cases. But you guys, I take it, have decided that making cases in federal court is not the way we're prepared to go?
That probably sweeps a little too broadly. Remember, John Walker Lindh was charged criminally by the Department of Justice in the federal court case brought. Zacarias Moussaoui, wisely or unwisely, was indicted in federal court on criminal charges. There wasn't a uniform, one-size-fits-all answer, nor I think in the heat of those moments was there a particularly coherent set of criteria that were being applied in deciding which track someone ought to go down. So it's not as though the criminal tool was renounced and seen as completely inapplicable or useless by the senior policy-makers in the administration.
And of course these guys say, and the JAGs joined them at some moment: "Hey, you guys, if we don't follow our set of rules, [most of what we get] is never going to be admissible in court. Worse than that, it's probably not going to yield any of the kind of information we want, and it's going to send an odd signal to the rest of the world that we've somehow become muscular kind of cowboys." Were those arguments reflected in your presence? Did you take that on board?
Well, yeah, I certainly took that on board, but you've got to make a distinction among those three arguments. The notion that the kinds of interrogations that were being conducted of terrorist detainees weren't going to yield evidence admissible in court was seen as completely beside the point, because most of these people were never going to be charged in a criminal court. The shortcomings of the criminal justice system were such that you couldn't effectively charge them in court. The Moussaoui case itself is a pretty dramatic illustration of the perils and hazards and problems of trying to fit the square peg of terrorism into the round hole of our criminal justice system.
So when people complained about the lack of evidence admissible in criminal court, that wasn't accorded too much weight, because most of these people, if they were to be tried, were going to be tried before military commissions.
In my presence, in the discussions that I was a part of, it was always explained to me that we did not use torture, we did not use physical coercion; that among the many reasons not to do that were that it would not produce good-quality intelligence; that where true duress, true physical coercion is at issue, information just isn't reliable. So that was always by way of explanation about why we had to use the longer, slower, more patient methods that principally involved various forms of psychological coercion and pressure. ...
[What about the argument about the kind of signal we're sending to the rest of the world, especially the Arab world?]
Yeah. Those kinds of concerns I remember being aired. I don't think they were taken terribly seriously, because the attitude in the immediate post-9/11 period was that this is all about substance, and perception be damned. We have to keep the country safe; we have to prevent another attack. As long as what we are doing is lawful and protective of national security, we'll just deal with whatever perception problems may arise. But we're certainly not going to deprive ourselves of intelligence that we need and have the lawful power to extract just in order to please foreign opinion abroad.
And in the discussions that you were part of, or what you look back on now, were the detainees "the worst of the worst"? Who was at Guantanamo?
Well, nobody knew for sure. There was a very elaborate screening process that started out in the field, whether in Afghanistan or eventually Iraq or other places around the world where we were taking detainees into custody that ran all the way through Washington at very, very high levels, designed to make sure that the people who were going to Guantanamo were either people who would be fertile sources of intelligence or people who were otherwise extremely dangerous. How successful that screening process was and what the error rate was -- because surely there had to be one, as there is in every human system -- was something that while I was there we just didn't know. I think the working assumption then, and to me even now, is that the vast, vast majority of people being held at Guantanamo fall into the category of very bad, very dangerous people who are enemies of the United States, that we all ought to be very glad have been taken out of circulation. But that's not to deny that it's possible we've made mistakes and have or have had some people at Guantanamo who really didn't belong there. ...
I don't think it would be fair to level a systemic critique of the policy-making process in the administration in the immediate post-9/11 period. I really don't see how else it could have been done. And that's not to say it isn't appropriate to re-examine periodically, but to suggest that there should have been the normal, cumbersome, slow policy-making process driven primarily by the career people in the aftermath of 9/11 I think is quite wrongheaded. I don't think it would have served the president well, and I don't think it would have served the country well.
But I think the legal judgments and the policy judgments were right, generally. Now, when I say that, I say that knowing also that some of the legal judgments ultimately were not validated by the Supreme Court, particularly in the Rasul case. The question about whether habeas corpus was available to the detainees at Guantanamo, we all made the legal judgment that it was not, based on Johnson v. Eisentrager, a 1950 decision that as we read it was directly on point. The Supreme Court would ultimately, I would argue, change the law in that area. So in the sense that the Supreme Court has now ruled contrary to what our initial judgment was, has rejected our position, I think you'd have to say that our legal judgment was incorrect because, after all, the Supreme Court gets the last word, not the executive.
But with the information we had at the time and the legal analysis we did at the time, I can't find fault even in retrospect with the judgment that we reached. I think the Supreme Court just engaged in that case in an act of making new law for whatever reason.
[The uniform military says there were no clear rules for them to follow.] Do you bear some responsibility for that?
Listen, the fog of war is not limited to the battlefield. When confronted with an event as catastrophic as 9/11, everybody is scrambling and working to figure out the new rules and the new methods of operation and the new ways of doing things. The one thing we knew for sure is the way we had been doing things up until 9/11 hadn't worked. If it had, 9/11 wouldn't have happened. So we knew there had to be changes.
Change always creates uncertainty. It always creates upset. It always provokes opposition. But if you are the president of the United States and you have a nation of hundreds of millions of people looking to you personally to do something to ensure their safety, if you have people around the world looking to you to make sense of what's happening and work some differences that may help protect democracy and protect liberal values across the world, you have to be an agent of change. You can't be afraid of that uncertainty; you can't be afraid of that opposition. You have to, in short, lead.
And that's what I think President Bush did, and that's what I think the appointees who served him tried to do. Nobody's going to claim that no mistakes were ever made. Any enterprise this complicated, whether it involves legal judgments being made in Washington or operational judgments being made on the battlefield in Afghanistan or Iraq, is going to be characterized by problems, errors and mistakes. It's been that way throughout history in every armed conflict we or any other nation has ever fought, and I venture to say it always will be that way.
But you do the best you can because you've been vested with authority under our Constitution, and you've got to try to use that authority to good ends to protect our society and reduce the risks of another 9/11. ...
In the end, I suppose the proof is in the pudding. Contrary to my expectations, certainly, and I imagine the expectations of a lot of other people, here we are almost four years later now without having had another significant act of terrorism on our soil. Was that just luck? Maybe. But I venture to say the aggressive policies the administration pursued have to have played some role in keeping all of us safe and healthy and alive over the last four years. It could change in an instant; it could change tomorrow.
But if you were president of the United States, I think you personally would want to make certain that you had done everything you could to prevent another catastrophic act of terrorism in the event one occurred. You would have to be able to look into the eyes of the American people, the constituents who elected you, who invested you with this enormous power and say to them in good conscience, "I did everything I could, and this happened in spite of all my efforts."