Takeover, page 49
51. Author interview with Pierre-Richard Prosper, January 17, 2007.
52. “DoD News Briefing—Secretary Rumsfeld and Gen. Myers,” December 27, 2001, http://www.defenselink.mil/Transcripts/Transcript.aspx?TranscriptID=2696.
53. Courts had split over whether or not Guantánamo was within their jurisdiction in a pair of cases from the 1990s concerning migrants held at the base. A federal district court ruled that it did have jurisdiction to hear a lawsuit brought by a group of Haitians on the base, but the Clinton administration struck a deal with lawyers for the group—including a team of Yale law students led by Harold Koh—to vacate the decision in exchange for allowing the Haitians to come to the United States. But in another case, a federal appeals court later ruled that it did not have jurisdiction to hear a similar lawsuit brought by a group of Cubans being held on the base. The latter decision stayed on the books.
54. In his memoir, John Yoo reports that the “one thing we all agreed on was that any detention facility should be located outside the United States.” John Yoo, War by Other Means (New York: Atlantic Monthly Press, 2006), 142.
55. The memo argued that Al Qaeda was not a nation-state and so not a party to the Geneva Conventions, and that Afghanistan was a “failed state” and the Taliban was not a legitimate government, so neither were covered by the treaty. It also argued that both Al Qaeda and the Taliban militias violated the laws of war by attacking civilians and failing to wear uniforms, so that even if the treaty did apply to the conflict, the president could determine that none of the Al Qaeda and Taliban fighters had earned the right to prisoner of war protections. The rebuttal to this argument is that the U.S. military is bound to obey the Geneva Conventions regardless of whom it is fighting, and even if Al Qaeda and Taliban prisoners were not POWs, they were still entitled to the minimum standards of humane treatment covered under Common Article III of the conventions. The memo went on to argue, however, that because Common Article III covers wars that are “not of an international nature,” this refers only to internal civil wars, as opposed to conflicts that cross borders but are not between nations. In June 2006, the Supreme Court rejected this interpretation, holding that the minimum standards of humane treatment in Common Article III were meant to cover all military conflicts.
56. John Yoo and Robert J. Delahunty to William J. Haynes II, memorandum re: “Application of Treaties and Laws to Detainees,” January 9, 2002, reproduced in Dratel and Greenberg, Torture Papers, 38.
57. R. Jeffrey Smith and Dan Eggen, “Gonzales Helped Set the Course for Detainees,” Washington Post, January 5, 2005.
58. Alberto R. Gonzales to the president, memorandum re: “Decision Re: Application of the Geneva Convention on Prisoners of War to the Conflict with Al Qaeda and the Taliban,” January 25, 2002, reproduced in Dratel and Greenberg, Torture Papers, 118.
59. William H. Taft IV to counsel to the president, memorandum re: “Comments on Your Paper on the Geneva Convention,” February 2, 2002, reproduced in Dratel and Greenberg, Torture Papers, 129.
60. Memorandum for the vice president and others re: “Humane Treatment of al Qaeda and Taliban Detainees,” February 7, 2002, reproduced in Dratel and Greenberg, Torture Papers, 134. Buttressing his decision, Bush pointedly endorsed the assertion that he had “the authority under the Constitution to suspend Geneva as between the United States and Afghanistan.” However, Bush said, there was no need for him to formally suspend the Geneva Conventions in this case, since he could simply declare that the treaty did not apply to the detainees in question—a classic distinction without a difference.
61. “Rumsfeld: Afghan Prisoners Will Not Be Treated as POWs,” Fox News, January 28, 2002, http://www.foxnews.com/story/0,2933,44084,00.html.
62. “Secretary Rumsfeld Media Availability En Route to Guantánamo Bay, Cuba,” January 27, 2002, http://www.defenselink.mil/transcripts/2002/t01282002_t0127enr.html.
63. Mark Denbeaux and Joshua Denbeaux, “Report on Guantánamo Detainees,” Seton Hall University School of Law, February 7, 2006, http://law.shu.edu/aaafinal.pdf.
64. President’s message to the Senate and the text of the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, May 20, 1988.
65. The text of this memo has not been released, but its title, date, author, and addressee, and a quote from it—“The Commander-in-Chief Clause constitutes an independent grant of substantive authority to engage in the detention and transfer of prisoners engaged in armed conflicts”—were included in the August 1, 2002, interrogation memo. The administration later made two other arguments in public: that the treaty did not apply to aliens overseas and that it applied only to prisoners being deported from U.S. soil. The United Nations Committee Against Torture, which governs the treaty’s implementation, rejected the arguments as legally incorrect. See, e.g., http://www.usmission.ch/Press2006/CAT-May5.pdf.
66. “Extraordinary Rendition in U.S. Counterterrorism Policy: The Impact on Transatlantic Relations,” Joint hearing before the Subcommittee on International Organizations, Human Rights, and Oversight, and the Subcommittee on Europe, of the Committee on Foreign Affairs, House of Representatives, April 17, 2007.
67. Technically, Arar’s transfer was a summary deportation rather than an extraordinary rendition, as he was detained on U.S. soil rather than captured overseas. However, this is a distinction without a difference in the context of transferring terrorism suspects to foreign governments that are known to torture.
68. Report of the Events Related to Maher Arar, Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, September 18, 2006, http://www.ararcommission.ca/eng/AR_English.pdf.
69. John Mintz, “Detainee Moved from Cuba to Va. Brig,” Washington Post, April 6, 2002.
70. “Ashcroft Statement on ‘Dirty Bomb’ Suspect,” CNN, June 10, 2002, http://archives.cnn.com/2002/US/06/10/ashcroft.announcement/.
71. The government cited two primary precedents. First, it cited a 1950 Supreme Court ruling that dismissed a lawsuit by some German soldiers in China who wanted to be released from an overseas military prison. The U.S. Army said it was holding them without trial because they had continued to fight after Berlin surrendered in 1945, making them illegal combatants. Taking the army’s word for it without any independent inquiry into the facts, the Supreme Court refused to review the Germans’ case. The administration brief cited this 1950 precedent ten times, presenting it as one of their strongest precedents. But unlike Hamdi and Padilla, the Nazis weren’t U.S. citizens, and they were neither arrested nor imprisoned on U.S. soil. The administration’s other major precedent involved a group of eight German-born Nazi saboteurs who were arrested on U.S. soil during World War II. One of the eight had become a naturalized U.S. citizen before the war. After they were tried and convicted by a military tribunal, the saboteurs asked the Court to overturn their sentences because they had a right to a trial in a regular civilian court. But in 1942, the Supreme Court upheld the military tribunal. The administration brief cited this precedent thirteen times. But also unlike Hamdi and Padilla, the Nazi saboteurs received a trial. Brief for Respondents-Appellants, Hamdi v. Rumsfeld, filed with United States Court of Appeals for the Fourth Circuit, June 19, 2002, http://news.findlaw.com/hdocs/docs/hamdi/hamdirums61902gbrf.pdf.
72. Hamdi v. Rumsfeld, 296 F.3d 278 (4th Cir. 2002).
73. Padilla v. Rumsfeld, 352 F.3d 695 (2nd Cir. 2003).
74. Smith and Eggen, “Gonzales Helped Set the Course for Detainees.”
75. Michael Hirsh and others, “A Tortured Debate,” Newsweek, June 21, 2004.
76. Meet the Press, NBC, September 16, 2001.
77. “Interview of the Vice President by Scott Hennen, WDAY at Radio Day at the White House,” October 24, 2006, http://www.whitehouse.gov/news/releases/2006/10/20061024-7.html.
78. 18 U.S.C. § 2340.
79. Jay Bybee to Alberto R. Gonzales, memorandum re: “Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340–2340A,” August 1, 2002, reproduced in Dratel and Greenberg, Torture Papers, 172.
80. Mike Allen and Juliet Eilperin, “Bush Aides Say Iraq War Needs No Hill Vote,” Washington Post, August 26, 2002.
81. This sudden surge had been crafted by the White House Iraq Group, or WHIG, which had secretly formed in August 2002 to coordinate a strategy for the coming confrontation with Iraq. Its members included Card; Bush’s top political adviser, Karl Rove; Cheney’s chief of staff, I. Lewis “Scooter” Libby; National Security Adviser Condoleezza Rice; and Rice’s deputy, Stephen Hadley. The group also developed a “white paper” to educate Congress and the public about the “grave and gathering danger” of “Saddam Hussein’s quest for nuclear weapons.” Three unnamed officials who followed the paper’s development later told the Washington Post that the WHIG participants “wanted gripping images and stories not available in the hedged and austere language of intelligence”—a stark display of the political benefits that come with the power to control information. Barton Gellman and Walter Pincus, “Depiction of Threat Outgrew Supporting Evidence,” Washington Post, August 10, 2003.
82. Elisabeth Bumiller, “Bush Aides Set Strategy to Sell Policy on Iraq,” New York Times, September 7, 2002.
83. The NewsHour with Jim Lehrer, PBS, September 9, 2002.
84. However, the White House initially refused to share its allegedly definitive intelligence with most in Congress. In a television interview, Cheney explained that briefing the 535 lawmakers about such “highly classified” intelligence would inevitably result in leaks that would compromise national security, so lawmakers who were not leaders or members of the Intelligence committees would have to vote on the basis of the more limited briefings the White House thought they could handle. The administration surrounded those briefings, delivered by Secretary of Defense Donald Rumsfeld, with a theatrical display of secrecy, holding them in a windowless room that was swept for bugs and making lawmakers swear oaths not to talk about the contents of the briefings. But lawmakers from both parties said the information they were given in the briefings was the same or even less than what was already in the newspapers. Senator John McCain, a strong supporter of the war authorization, walked out of one of the briefings, pronouncing it a “joke,” and many lawmakers decided not to be briefed so that they could openly debate the Iraq policy on the basis of what was in the media (Jim VandeHei, “Iraq Briefings: Don’t Ask, Don’t Tell,” Washington Post, September 15, 2002). Later that month, the administration slammed together a National Intelligence Estimate for Iraq, completing in two weeks what usually takes months to prepare. The poor quality of this document, including its propensity for overstating claims that were not supported by the fine print, would later be the subject of an independent investigation by the conservative Judge Laurence Silberman and former Democratic senator and governor Chuck Robb.
85. See, e.g., William M. Welch, “Republicans Using Iraq Issue to Slam Election Opponents,” USA Today, October 13, 2002.
86. President Bush to congressional leaders, re: “Reporting on the Commencement of Military Operations Against Iraq,” March 21, 2003.
87. “Inside the Presidency with Bob Woodward,” History Channel, originally broadcast January 20, 2005.
7. “A HOLLOW SHELL”: SECRECY II
1. “Judge Emmet G. Sullivan,” U.S. District Court for the District of Columbia website, http://www.dcd.uscourts.gov/sullivan-bio.html.
2. “Judge Resists Efforts to Block Energy Records,” Associated Press, August 3, 2002.
3. Author interview with Christopher Farrell, December 15, 2006.
4. Executive order, Further Amendment to Executive Order 12958, as Amended, Classified National Security Information, March 25, 2003.
5. The order bolstered a previously more limited program that had begun in 1999 with the Clinton administration under which officials from the CIA, the Department of Energy, the Pentagon, and other agencies were looking through declassified records at the National Archives and quietly removing files.
6. “National Archives Information Security Oversight Office Releases Audit on Withdrawal of Records from Public Access,” Information Security Oversight Office press release, April 26, 2006, http://www.archives.gov/press/press-releases/2006/nr06-96.html.
7. Information Security Oversight Office reports. By 2005, the last year for which numbers were available as of this writing, the peaks reached in 2004 had eased slightly—258,633 secrets were classified, and thirty million pages of documents were declassified. At the same time, the government’s willingness to declassify historic documents plummeted. Some seventy-five million individual pages of historically valuable documents had been made available for the first time in 2000. In 2004, by contrast, the figure was just twenty-eight million. http://www.archives.gov/isoo/reports/.
8. J. William Leonard, statement before the House Committee on Government Reform, Subcommittee on National Security, Emerging Threats, and International Relations, August 24, 2004.
9. Charlie Savage, “Bush Team Takes Hit on Secret Files,” Boston Globe, May 4, 2004.
10. Steven Aftergood of the Federation of American Scientists’ Project on Government Secrecy has argued that while the wording of Bush’s executive order clearly gives the vice president the power to classify anything, it does not definitively say whether the vice president, like the president, can declassify something that was stamped secret by an agency outside his office. Cheney himself, however, in an interview with Fox News, said that the order gave him complete declassification power equal to that of the president. See Steven Aftergood, “The Vice President’s Declassification Authority,” Secrecy News, February 16, 2006, http://www.fas.org/blog/secrecy/2006/02/the_vice_presidents_declassifi.html; and transcript of interview with the vice president by Brit Hume, Fox News, February 15, 2006, http://www.whitehouse.gov/news/releases/2006/02/20060215-3.html.
11. Mark Silva, “Bush Team Imposes Thick Veil of Secrecy,” Chicago Tribune, April 30, 2006.
12. By the summer of 2007, the dispute had attracted the attention of the new Democratic-run Congress, and the legal claim that the vice president was not part of the executive branch became the subject of public ridicule. Amid the late-night laughter, Addington partially backed away from the claim, arguing that it was unnecessary to delve into constitutional issues because it was sufficient that the executive order “makes clear that the Vice President is treated like the President.” Letter from Rep. Henry Waxman to Vice President Cheney, June 21, 2007, http://www.fas.org/irp/congress/2007_cr/waxman062107.pdf. Letter from David Addington to Senator John Kerry, June 26, 2007, http://kerry.senate.gov/newsroom/pdf/Addington_Letter.pdf.
13. Cheney also repeatedly touted Iraq’s supposed nuclear programs, as when, on March 16, 2003, he told viewers of NBC’s Meet the Press, “We know [Saddam Hussein]’s out trying once again to produce nuclear weapons.” Meet the Press, NBC, March 16, 2003.
14. “Government’s Response to Defendant’s Third Motion to Compel Discovery,” United States v. I. Lewis Libby, U.S. District Court for the District of Columbia, C.R. NO 05-394 (RBW), April 15, 2006.
15. The episode, Libby added, was very unusual. He testified that the July 8 meeting was the “only time he recalled in his government experience when he disclosed a document to a reporter that was effectively declassified” in such a manner. But he pressed on. Four days later, Libby provided similar information to Matt Cooper of Time and Tim Russert of NBC. Cheney, he said, had “specifically selected him to talk to the press about the NIE and Mr. Wilson” in place of the usual press contact for his office. Meanwhile, no one else in the White House, the CIA, or the State Department knew that the key judgments of the National Intelligence Estimate had been cleared for release, and they were continuing their own efforts to get them declassified. Ibid., 23.
16. Charlie Savage, “Ashcroft and Evans Resign from Cabinet,” Boston Globe, November 10, 2004.
17. See, e.g., David Savage, “Justices Appear to Support Cheney Task Force Secrecy,” Los Angeles Times, April 28, 2004; Lyle Denniston, “Justices Give Cheney Sympathetic Ear but Question Timing,” Boston Globe, April 28, 2004.
18. The technical legal issue on which the case turned was whether Cheney had a right to appeal the discovery order without first officially invoking executive privilege and letting lower courts issue a final judgment on whether it applied. The appeals court had said that his appeal was premature because he had not formally invoked executive privilege.
19. 542 U.S. 367 (2004).
20. Shannen Coffin, “Victory for the Executive,” National Review, June 25, 2004, http://www.nationalreview.com/coffin/coffin200406250942.asp.
21. Warren Richey, “Security or Cover-Up?” The Christian Science Monitor, June 8, 2006.
22. E-mail from Judith Palya Loether to the author, December 16, 2007.
23. Richey, “Security or Cover-Up?”
24. Michael Freedman, “Daughters of the Cold War,” Legal Affairs, January/February 2004.
25. Richey, “Security or Cover-Up?”
26. See, e.g., Louis Fisher, In the Name of National Security: Unchecked Presidential Power and the Reynolds Case (Lawrence: University of Kansas Press, 2006).
27. Gregg Toppo, “Education Dept. Paid Commentator to Promote Law,” USA Today, January 7, 2005.
28. Robert Pear, “Buying of News by Bush’s Aides Ruled Illegal,” New York Times, October 1, 2005.
29. Christopher Lee, “Administration Rejects Ruling on PR Videos,” Washington Post, March 15, 2005.
30. Michael Gerber, “GAO Calls Medicare Video News Releases Illegal Propaganda,” The Hill, May 20, 2004.
31. Lee, “Administration Rejects Ruling.”
32. Pear, “Buying of News.”
33. Eli Lake, “Why an Espionage Investigation Is Terrible News for Journalists,” The New Republic, October 10, 2005.
34. Walter Pincus, “Prosecution of Journalists Is Possible in NSA Leaks Case,” Washington Post, May 22, 2006.
