Tough Justice: Administration Officials Split Over Stalled Military Tribunals
New York Times
October 25, 2004
Tim Golden
WASHINGTON - When hundreds of prisoners arrived at the American naval base in Guantánamo Bay, Cuba, in early 2002, the Bush administration laid out a straightforward plan: once the men were interrogated, the worst of the lot would be prosecuted before special military tribunals devised to bring terrorists to justice quickly.
A year later, with no trials yet in sight, some officials at the highest levels of the Bush administration began privately venting their frustration about both the slow pace of the Pentagon's new courts and the soundness of their rules. Attorney General John Ashcroft was especially vocal.
"Timothy McVeigh was one of the worst killers in U.S. history," Mr. Ashcroft said at one meeting of senior officials, according to two of those present. "But at least we had fair procedures for him."
The administration invoked extraordinary wartime powers to set up the new system of military justice, arguing that the Sept. 11 attacks and the continuing threat they exposed justified the use of legal authorities that had not been exercised since World War II. But as officials sought to apply those powers to a very different kind of conflict, they became mired in problems they are still struggling to solve.
Although White House lawyers said they rushed to devise a new judicial structure that could handle serious Qaeda terrorists, many of the detainees sent to Guantánamo turned out to be low-level militants, Taliban fighters and men simply caught in the wrong place at the wrong time. The Pentagon's efforts to gather intelligence from more valuable prisoners were also deeply flawed, military intelligence officers said, complicating the prosecution of some detainees and nearly paralyzing efforts to release others.
Interviews with dozens of officials show that the myriad problems ignited an often fierce behind-the-scenes struggle that set the Pentagon and its allies in the White House against adversaries at the National Security Council, the State Department and Justice Department. The friction among officials like Defense Secretary Donald H. Rumsfeld; the national security adviser, Condoleezza Rice; and Mr. Ashcroft sheds new light on the internal dynamics of an administration that has shown a remarkably united public front.
In many cases, officials said, the battles were fueled by the discontent of military, foreign-policy and other officials who had been excluded from a role in shaping the policy after Sept. 11.
"Anytime you have a process which is not inclusive, you end up giving people a reason to be opposed to it," said Timothy E. Flanigan, a former deputy White House counsel who helped craft the legal strategy. "That was certainly the case here.''
The Pentagon continues to defend military commissions, as the tribunals are called, as an important tool against terrorism. But in several instances, military officials said, Mr. Rumsfeld and his deputy, Paul D. Wolfowitz, resisted moving forward with prosecutions, in part because they felt the cases were weak.
As prosecutors prepare for their first two trials, now scheduled for December and January, the commissions have been roiled by vigorous attacks from the uniformed lawyers assigned to the defendants. Defense challenges have prompted the removal of half of the officers appointed to hear the first cases, and have called into question the independence of the presiding officer.
On Monday, Oct. 25, a federal district court judge in Washington is expected to hear arguments in a lawsuit by one of the defense lawyers challenging the commissions as unconstitutional. Already, White House and Pentagon lawyers are considering ways to revise the tribunals after Election Day, administration officials said.
As the Sept. 11 attacks have receded, political and diplomatic opposition to the administration's use of wartime powers has grown. Now, critics argue that the delays in moving forward with the commissions has weakened their legal justification as well.
"When commissions have been done in the past, they have either been authorized by Congress or done on the battlefield, typically during declared wars," said Neal K. Katyal, a Georgetown University law professor who will argue the case in federal court. "But here, you have a commission set up unilaterally by the president, at a time when war has not been declared, thousands of miles from a battlefield and now more than three years after the attacks."
Hunting for Defendants
With American military, intelligence and law-enforcement efforts focused on Al Qaeda, administration officials expected to corner many of its members in Afghanistan, sweep up others around the world and start prosecuting the terrorists within months.
Mr. Rumsfeld had not been intimately involved in developing the plan for prosecuting terrorist suspects. But once the prisoners started to arrive from Afghanistan, he took a strong interest in Guantánamo's potential as a source of intelligence, officials said.
He was soon disappointed.
Experienced interrogators, analysts and interpreters were all in short supply. Few, if any, military intelligence officers had significant expertise on Al Qaeda or Afghanistan. Even plywood interrogation huts were scarce: One senior interrogator said he finally bribed some Navy Seabees with cases of beer to build two more.
"Guantánamo had been a backwater location for many years," said Gen. James T. Hill, who oversees the base as commander of the United States Southern Command. "Now, all of a sudden, we were involved in strategic intelligence-gathering from an enemy unlike any we've encountered on the battlefield before, in a Guantánamo environment that at the beginning was very austere. So all of this had to evolve."
It did not evolve fast enough for Mr. Rumsfeld, who ordered an overhaul of the intelligence effort in September 2002.
Three months later, he authorized the use of more coercive interrogation techniques, taking advantage of a decision by the White House that the detainees were not protected by the Geneva Conventions. Although Mr. Rumsfeld later disallowed some of the most severe methods, including the removal of clothing and the use of dogs to induce stress, disclosures about the harsh methods lent credence to charges of abuse leveled by former detainees.
But intelligence-gathering was only part of the problem. It quickly became apparent that few of the prisoners captured in Afghanistan were the sort of hardened terrorists the administration had hoped for.
"It became obvious to us as we reviewed the evidence that, in many cases, we had simply gotten the slowest guys on the battlefield,'' said Lt. Col. Thomas S. Berg, a member of the original military legal team set up to work on the prosecutions. "We literally found guys who had been shot in the butt.''
The reserve officer chosen by Mr. Rumsfeld to lead the intelligence operation at Guantánamo, Maj. Gen. Michael E. Dunlavey, was told after his arrival there in February 2002 that as many as half of the initial detainees were thought to be of little or no intelligence value, two officers familiar with the briefings said. He also found that the prisoners included elderly and emotionally disturbed Afghan men, including one tribal elder so wizened that interrogators nicknamed him "Al Qaeda Claus."
Barely a month after taking command, General Dunlavey flew to Afghanistan and Kuwait to complain directly to military commanders there. But while the commanders acknowledged that prisoner screening could be improved, they said they had no other place to put suspects who might be of some intelligence value or threat, a senior officer familiar with the meetings recalled.
"Basically, they said, 'General, please shut up and go home,' " the officer said.
The lack of solid information about the detainees undermined a basic premise of the administration's legal plan. The order that established the military commissions on Nov. 13, 2001, authorized the Pentagon to hold and prosecute any foreigners designated by the president as suspected terrorists.
On Jan. 22, 2002, at the request of the White House counsel, Alberto R. Gonzales, Pentagon lawyers directed intelligence officers at Guantánamo to fill out a one-page form for each prisoner, certifying the president's "reason to believe" their involvement with terrorism, officials said.
But within weeks, intelligence officers began reporting back to the Pentagon that they did not have enough evidence on most prisoners to even complete the forms, officials said. By March 21, Defense Department officials indicated they would hold the Guantánamo prisoners indefinitely and on different legal grounds - as "enemy combatants" in a war against the United States.
"We are within our rights, and I don't think anyone disputes it, that we may hold enemy combatants for the duration of the conflict," William J. Haynes II, the Pentagon's general counsel, said then. "And the conflict is still going and we don't see an end in sight right now."
Emerging Divisions
As accounts of the problems at Guantánamo reached Washington in the spring of 2002, the question of how to deal with the detainees began to divide the Bush administration.
In public, the administration continued to maintain that the prisoners were both frighteningly dangerous and a likely font of vital intelligence. "They may well have information about future terrorist attacks against the United States," said Vice President Dick Cheney. "We need that information."
But at the State Department, diplomats were awash in complaints from foreign governments, many of them allies in the Afghan war, about the open-ended imprisonment of their citizens. F.B.I. agents and Justice Department officials were struck by how few strong prosecution cases there seemed to be, current and former officials said.
Officials said that C.I.A. officers who were trying to recruit some Guantánamo detainees as agents raised another fear: that the camp could become America's madrasa, or Islamic school, radicalizing prisoners by its harsh conditions, the indoctrination of militant leaders and the detainees' focused study of the Koran - the only book they were initially given to read.
Officials on the National Security Council staff were particularly uneasy. The discussions that produced the president's Nov. 13 military order had been dominated by a small circle of White House lawyers overseen by Mr. Cheney. Ms. Rice, like Secretary of State Colin L. Powell, had been excluded, officials said, an embarrassing slight given her role as a mediator on national security issues.
Mr. Bush later brought the council staff back into the process, assigning it to draw up a broader strategy to deal with the thousands of prisoners in Afghanistan. Two senior aides, Elliott Abrams and John B. Bellinger III, convened an interagency group to study the issue.
The men made an odd team: Mr. Bellinger, the council's legal adviser, was a measured former Justice Department official with a degree from Princeton and a taste for monogrammed dress shirts. Mr. Abrams, known as a bare-knuckled bureaucratic infighter, was making his return to government after being convicted of lying to Congress in the Iran-contra scandal and later pardoned by the first President Bush.
"They were very persistent," one senior administration official from another agency said of the National Security Council aides. "They kept pressing: Did all the detainees really belong there? What was the plan to start transferring them out?"
The council officials also worried what might happen after such transfers.
"There was real concern that if detainees were harshly treated and deprived of due process, they were going to end up turning against the United States, if they had not already," said retired Gen. John A. Gordon, a former deputy director of the C.I.A. who became President Bush's deputy national security adviser for counterterrorism. "We were not making any converts."
The Defense Department was notably unresponsive to prodding by other agencies. Requests for information were answered slowly, if at all, officials said. Promised policy changes - new criteria to improve the screening of detainees being sent to Guantánamo, or proposed terms for their transfer home - were delayed repeatedly.
"We provided them with only the information that we, in our arrogance - or the arrogance of our leadership - thought they needed," one former Pentagon official said. He added that he and others went into interagency meetings on Guantánamo with a standard script, dictated by their superiors: "Back off - we've got this under control."
The National Security Council officials were notably unsuccessful in pushing for a major public diplomacy effort to counter the widely seen images of shackled detainees in orange jumpsuits.
Members of Congress, journalists and others were eventually allowed to visit the base on tightly controlled tours. But the Pentagon, citing security concerns, refused to release even basic information about the prisoners, or say publicly what they were accused of having done.
"Rumsfeld was very clear that he wanted the Department to be driving this bus," said a former Army secretary, Thomas E. White, who was closely involved in the Guantánamo policy. "He reigned supreme in the government. The vice president backed him up, and that was his power base."
Documenting the Problems
Stymied by the Pentagon, National Security Council aides eventually began playing their own game of hardball.
In August 2002, at what officials said was the council's request, the C.I.A. dispatched a senior Arab-speaking intelligence analyst to assess the detainees and talk to intelligence officers at the base. He produced a top-secret report of about 15 pages that, according to several officials who read it, described many of the detainees as having no meaningful ties to Al Qaeda.
It also hinted that the harsh conditions, lack of reading materials and, in some cases, extended isolation bordered on abusive and might prove counterproductive, those officials said.
Back in Washington, administration officials said, the report made its way to Ms. Rice, who began building an alliance of dissenters within the administration's national security team.
She turned first to Mr. Powell, officials said. Her staff also sought out the president's Homeland Security adviser, Tom Ridge, and set up an off-the-record dinner at which he debriefed General Dunlavey, the Guantánamo commander, who was a friend of Mr. Ridge's from his days as a lawyer in Erie, Pa.
Ms. Rice also found a powerful ally at the Department of Justice.
Early on, Justice had seemed firmly with the administration's hard-liners. In December 2001, Attorney General Ashcroft defended the president's military order before the Senate, going so far as to warn those who saw an assault on civil liberties, "Your tactics only aid terrorists, for they erode our national unity and diminish our resolve."
But by the fall of 2002, some senior Justice Department officials were uneasy with the Pentagon's handling of the detainees, the slow progress of the military commissions and the seemingly improvised nature of decisions about how to prosecute suspected terrorists.
The administration had used the federal courts to convict John Walker Lindh, a young California man captured by the military in Afghanistan, but ordered the transfer to military custody of Jose Padilla, a young American arrested by the F.B.I. in Chicago. The Justice Department had insisted on trying Zacarias Moussaoui, a French-born member of Al Qaeda arrested in Minnesota. But the Pentagon had held onto Yaser E. Hamdi, an American-born Saudi captured in Afghanistan, eventually moving him from Guantánamo to join Mr. Padilla in a naval brig in South Carolina.
"There was not a real process for determining who was an enemy combatant," said Viet D. Dinh, a former Justice Department official who worked on terrorism issues under Mr. Ashcroft. "And the ad hoc nature of that process gave a lot of power to the Pentagon."
With the federal courts starting to consider cases involving detainees, a split developed over whether to allow Mr. Hamdi and Mr. Padilla, in particular, some access to lawyers. Behind the disagreement was a philosophical difference about how best to achieve the shared goal of strengthening presidential power. A more reasonable position, many argued, would avoid review and possible reversal by the courts. Others, led by the vice president's influential counsel, David S. Addington, advocated taking the most aggressive stance they felt they could defend, officials said.
"Addington's position was, 'We think what we're doing is right - why should we stop doing it?' " a former White House official said. "If the courts tell us we're wrong, we'll stop then."
A spokesman for the vice president's office said Mr. Addington would not comment.
Officials of the Justice Department's criminal division, who worked closely with the F.B.I., were grappling with other questions. They saw the Guantánamo detentions as a source of cascading problems: angry foreign allies, a tarnishing of America's image overseas and declining cooperation in international counterterrorism efforts.
"This was an issue of basic fairness," one former senior official involved in the discussions said. "The never-ending detentions were creating a lot of animosity among our allies. We pushed hard for them to move quicker. The attorney general pushed hard for it. They didn't, and there was an immense amount of frustration."
Dissenters Make Gains
Eventually, the critics began to gain ground. At Ms. Rice's initiative,...
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