Known and Unknown (66 page)

“Mr. President, the Department of Defense will be better off if I resign,” I insisted.

“That's not true,” he responded, tossing the letter across the table back to me.

I told the President my mind was made up. Nonetheless, he insisted that he wanted some time to think about it and to consult with others. The next day, Vice President Cheney came to the Pentagon. “Don, thirty-five years ago this week, I went to work for you,” he said, “and on this one you're wrong.”

In the end, Bush refused to accept my resignation. He had concluded that my departure would not make Abu Ghraib go away, and that he preferred to have me stay to manage the problem and the Department. For some in the United States and around the world, Abu Ghraib was a metaphor. The pictures from the prison had come to symbolize the war many had come to oppose. The President may have felt that my resignation might embolden the critics of the war effort, who would frame it as an indication of the administration's guilt and argue that it proved the Iraq war was hopeless.

As much as I believed I was right to resign, I eventually accepted the President's decision and agreed to stay and continue to manage the scandal, while working to keep the Pentagon, two wars, and our major transformation efforts moving forward. I now believe that this was a misjudgment on my part. Abu Ghraib and its follow-on effects, including the continued drumbeat of “torture” maintained by partisan critics of the war and the President, became a damaging distraction.
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More than anything else I have failed to do, and even amid my pride in the many important things we did accomplish, I regret that I did not leave at that point.

Hundreds of individuals inside the Defense Department and on independent panels outside spent thousands of hours looking into the reasons that the abuse at Abu Ghraib occurred. One thing that became clear was that the crimes had nothing whatsoever to do with interrogation or intelligence gathering. The U.S. soldiers shown in the photographs were not interrogators, nor were they involved in collecting intelligence from those detainees. Further, the individuals they were abusing were not intelligence targets undergoing interrogations. The guards were not following any guidelines or policies approved at any level. They were a small group of disturbed individuals abusing the Iraqis they were in charge of guarding.

Part of the cause of Abu Ghraib was a lack of training. Part of it was a lack of discipline and supervision. And part of it was the failure from the outset of the Department of the Army and Joint Staff to provide the appropriate
and agreed-upon staff and support to General Sanchez's headquarters in Iraq, which made it difficult, if not impossible, for his busy command to oversee adequately the growing population of Iraqi detainees in prisons like Abu Ghraib.

I directed officials at the Pentagon to cooperate fully with the numerous investigations underway—some of which I ordered. Vice Admiral Albert Church, a cousin of the crusading Senator Frank Church who led the Senate's intelligence investigations in the 1970s, conducted one of them. “One point is clear,” he concluded. “[W]e found no direct (or even indirect) link between interrogation policy and detainee abuse.”
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A nonpartisan investigation led by two former Secretaries of Defense, James Schlesinger and Harold Brown, which included the late Congresswoman Tillie Fowler and retired General Charles Horner, found that “There is no evidence of a policy of abuse promulgated by senior officials or military authorities.”
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After twelve nonpartisan, independent reviews and investigations of Defense Department detainee policies,
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not one found evidence that abuse had been encouraged or condoned by senior officials in the Defense Department—military or civilian.
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On May 29, 2004, at the height of the controversy, I attended the dedication of the World War II Memorial on the Washington Mall. A number of people came up to me to offer encouragement. The most unusual was a gray haired former president and husband of the junior senator from New York who was castigating the administration over the scandal at the same time.

Bill Clinton walked across the large reception tent and shook my hand. He said something to the effect of “Mr. Secretary, no one with an ounce of sense thinks you had any way in the world to know about the abuse taking place that night in Iraq.” He added, “You'll get through this.”
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I appreciated the gracious gesture.

The abuse at Abu Ghraib and illegal acts committed elsewhere in U.S. military detention facilities are part of the story of detention operations in wartime, to be sure. But they are only part of the story. Between 2001
and 2006, more than eighty thousand captured personnel passed through Defense Department custody. Of those, there were only a small number of documented cases of abuse. Each time there was an allegation of wrongdoing, it was promptly investigated and prosecuted when appropriate. The rare instances of abuse should not blind the world to the professionalism and skill of the tens of thousands of Americans in uniform who were entrusted with detainee operations.

I
n the heat of war, human frailty can undermine discipline and corrupt behavior even among well-trained soldiers. World War II, for example, saw instances of war crimes committed against captured soldiers on both sides of the conflict.
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Detention operations in war have also suffered from misjudgments. President Franklin D. Roosevelt authorized the internment of more than one hundred thousand Japanese Americans in desolate camps across the western United States although they were not enemies.

Even in nonmilitary, peacetime situations, detention is a difficult task, as the staggering statistics of murder, rape, and abuse in federal, state, and local prisons across the United States attest.
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Whenever and wherever abuse of prisoners occurs—from Bagram to San Quentin—it is an evil deed and a shameful disservice to our country, our society, and the huge majority ofcivilian and military guards who perform their difficult duties with professionalism.

When it came to captured terrorists, I knew that housing and interrogating them would require close attention and inevitably arouse controversy. Each step of the way toward crafting a coherent policy, we confronted complicated legal and policy dilemmas. Some critics cast these issues as simple questions of right and wrong. On matter After matter, however, we found ourselves facing decisions for which the options available were all imperfect.

We were dealing with individuals capable of horrific acts of murder and destruction. Yet they were human beings in the custody of a nation that properly holds itself to high standards. Belief in human dignity is the underpinning of Western civilization and one of the chief differences between Americans and our enemy. I knew our government had to create a legal architecture that afforded detainees due process while protecting our national security. I also believed that we needed to reinforce the incentives embodied in the Geneva Conventions. The Conventions are treaties with the broad purpose of protecting innocent life by deterring violations of the laws of the war, such as targeting civilians, not just for ensuring the proper treatment of prisoners of war.

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.”
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O
n 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.
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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.”
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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.
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The relevant sentences of the President's order were brief, but the tasks they set out were colossal. They would require the work of thousands of people for hundreds of thousands of hours. Bush was delegating wartime responsibilities to the Department of Defense that had not been used by our government in more than half a century.

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 to be treated humanely, regardless of their legal status.
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In a separate Department of Defense order to the combatant commanders on January 19, 2002, I echoed the President's order and directed all personnel to “treat [al-Qaida and Taliban detainees] humanely” and “in a manner consistent with the principles of the Geneva Conventions.”
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Though isolated cases of abuse and mistreatment of detainees have occurred in every war, American military forces have a long record of restraint and professionalism when it comes to holding captured enemies. After his army's success on the frozen fields outside Princeton, New Jersey, George Washington issued unequivocal orders on the treatment of captured British soldiers: “Treat them with humanity, and Let them have no reason to Complain of our Copying the brutal example of the British army in their Treatment of our unfortunate brethren.”
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Chairman of the Joint Chiefs Dick Myers and I wanted to make sure that the military upheld this high tradition. Even while fighting an enemy whose use of brutality was the norm, we insisted on aligning our military's conduct with the humane principles on which our Republic was founded.

 

I
n November 2001, a violent rebellion of Taliban and al-Qaida detainees in northern Afghanistan brought into focus the dangers and difficulties of managing fanatical killers in custody. General Rashid Dostum, an ethnic Uzbek Northern Alliance commander, as well as a powerful and tough warlord, held several hundred Taliban and al-Qaida foot soldiers in Qala-i-Jangi, a nineteenth-century mud-and-brick fortress near Mazar-e-Sharif.
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Among the Qala-i-Jangi prisoners that November was an English-speaking man who looked out of place. His name was John Walker Lindh, and he would become known as “the American Taliban.”

During the questioning of Lindh and his fellow prisoners, two CIA agents asked him about his background and the circumstances of his capture on the battlefield among the al-Qaida and Taliban fighters. In the middle of the interrogation, a detainee leaped toward the two American intelligence operatives, touching off a prisonwide rebellion. The ensuing battle pitted Dostum's few Northern Alliance guards, a handful of British Special Air Service (SAS) troops, U.S. Special Forces, and the two CIA agents against several hundred Taliban and al-Qaida, many committed to fighting to the death. The battle raged for three days. The prisoners managed to capture a Northern Alliance cache of weapons—including AK-47s, rocket launchers, mortars, and grenades.
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U.S. AC-130s and Black Hawk helicopters came to support the pinned-down coalition forces while Taliban and al-Qaida fighters held out in the basement of Qala-i-Jangi.
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Only when they were flushed out of the fortress with water did the fighting end. Before the battle there had been three hundred al-Qaida and Taliban prisoners, but only eighty-six emerged to surrender.
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The battle led to the deaths of some forty Northern Alliance soldiers, while another two hundred were injured.
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U.S. and British Special Forces also had taken casualties. Johnny Micheal Spann, one of the two CIA officers at Qala-i-Jangi prison that weekend, was killed in action in the first minutes of the battle, becoming the first American to die in combat operations in Afghanistan.
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His body was booby-trapped with a hidden grenade by the al-Qaida and Taliban prisoners so those recovering his remains would be wounded or killed. The episode was another reminder that many of those detained were there for a reason—they were violent, vicious, and would not hesitate to kill again.