That made no sense. Why should it be tougher to monitor al Qaeda communications with terrorists inside the United States than with their associates overseas? As Mike Hayden put it, we were “flying blind with no early warning system.”
After 9/11, we couldn’t afford to fly blind. If al Qaeda operatives were calling into or out of the United States, we damn sure needed to know who they were calling and what they were saying. And given the urgency of the threats, we could not allow ourselves to get bogged down in the court approval process. I asked the White House counsel’s office and the Justice Department to study whether I could authorize the NSA to monitor al Qaeda communications into and out of the country without FISA warrants.
Both told me I could. They concluded that conducting surveillance against our enemies in war fell within the authorities granted by the congressional war resolution and the constitutional authority of the commander in chief. Abraham Lincoln had wiretapped telegraph machines during the Civil War. Woodrow Wilson had ordered the interception of virtually every telephone and telegraph message going into or out of the United States during World War I. Franklin Roosevelt had allowed the military to read and censor communications during World War II.
Before I approved the Terrorist Surveillance Program, I wanted to ensure there were safeguards to prevent abuses. I had no desire to turn the NSA into an Orwellian Big Brother. I knew that the Kennedy brothers had teamed up with J. Edgar Hoover to listen illegally to the conversations of innocent people, including Martin Luther King, Jr. Lyndon Johnson had continued the practice. I thought that was a sad chapter in our history, and I wasn’t going to repeat it.
On the morning of October 4, 2001, Mike Hayden and the legal team came to the Oval Office. They assured me the Terrorist Surveillance Program had been carefully designed to protect the civil liberties of innocent people. The purpose of the program was to monitor so-called dirty numbers, which intelligence professionals had reason to believe belonged to al Qaeda operatives. Many had been found in the cell phones or computers of terrorists captured on the battlefield. If we inadvertently intercepted any portion of purely domestic communications, the violation would be reported to the Justice Department for investigation. To be sure the program was used only as long as necessary, it had to be regularly reassessed and reapproved.
I gave the order to proceed with the program. We considered going to Congress to get legislation, but key members from both parties who received highly classified briefings on the program agreed that the surveillance was necessary and that a legislative debate was not possible without exposing our methods to the enemy.
I knew the Terrorist Surveillance Program would prove controversial one day. Yet I believed it was necessary. The rubble at the World Trade Center was still smoldering. Every morning I received intelligence reports about another possible attack. Monitoring terrorist communications into the United States was essential to keeping the American people safe.
On December 22, a British passenger named Richard Reid tried to blow up an American Airlines flight carrying 197 people from Paris to Miami by detonating explosives in his shoes. Fortunately, an alert flight attendant noticed his suspicious behavior, and passengers overwhelmed him before he could light the fuse. The plane was diverted to Boston, where Reid was marched off in handcuffs. He later told questioners that his goal was to cripple the U.S. economy with an attack during the holiday season. He pled guilty to eight counts of terrorist activity, leading to a life sentence at the federal supermax prison in Florence, Colorado.
The foiled attack had a big impact on me. Three months after 9/11, it was a vivid reminder that the threats were frighteningly real. Airport screeners began requiring passengers to remove their shoes at checkpoints. I recognized that we were creating an inconvenience, but I felt it was worth it to prevent a copycat attack. I knew my policy was being implemented fully when Laura’s eighty-two-year-old mom had to take off her shoes before her Christmas flight from Midland to Washington. I sure hoped I wouldn’t be nearby if they asked Mother to do the same.
The near-miss over the Atlantic highlighted a broader gap in our approach to the war on terror. When Richard Reid was arrested, he was swiftly placed into the U.S. criminal justice system, which entitled him to the same constitutional protections as a common criminal. But the shoe bomber was not a burglar or bank robber; he was a foot soldier in al Qaeda’s war against America. He had emailed his mother two days before his attempted attack: “What I am doing is part of the ongoing war between Islam and disbelief.” By giving this terrorist the right to remain silent, we deprived ourselves of the opportunity to collect vital intelligence on his plan and his handlers.
Reid’s case made clear we needed a new policy for dealing with captured terrorists. In this new kind of war, there is no more valuable source of intelligence on potential attacks than the terrorists themselves. Amid the steady stream of threats after 9/11, I grappled with three of the most critical decisions I would make in the war on terror: where to hold captured enemy fighters, how to determine their legal status and ensure they eventually faced justice, and how to learn what they knew about future attacks so we could protect the American people.
Initially, most captured al Qaeda fighters were held for questioning in battlefield prisons in Afghanistan. In November, CIA officers went to interrogate Taliban and al Qaeda prisoners detained at a primitive nineteenth- century Afghan fortress, Qala-i-Jangi. A riot ensued. Using weapons smuggled onto the complex, enemy fighters killed one of our officers, Johnny “Mike” Spann, making him the first American combat death in the war.
The tragedy highlighted the need for a secure facility to hold captured terrorists. There were few options, none particularly attractive. For a while, we held al Qaeda detainees on Navy ships in the Arabian Sea. But that was not a viable long-term solution. Another possibility was to send the terrorists to a secure base on a distant island or U.S. territory, such as Guam. But holding captured terrorists on American soil could activate constitutional protections they would not otherwise receive, such as the right to remain silent. That would make it much more difficult to get urgently needed intelligence.
We decided to hold detainees at a remote naval station on the southern tip of Cuba, Guantanamo Bay. The base was on Cuban soil, but the United States controlled it under a lease acquired after the Spanish-American War. The Justice Department advised me that prisoners brought there had no right of access to the U.S. criminal justice system. The area surrounding Guantanamo was inaccessible and sparsely populated. Holding terrorists in Fidel Castro’s Cuba was hardly an appealing prospect. But as Don Rumsfeld put it, Guantanamo was the “least worst choice” available.
At Guantanamo, detainees were given clean and safe shelter, three meals a day, a personal copy of the Koran, the opportunity to pray five times daily, and the same medical care their guards received. They had access to exercise space and a library stocked with books and DVDs. One of the most popular was an Arabic translation of
Over the years, we invited members of Congress, journalists, and international observers to visit Guantanamo and see the conditions for themselves. Many came away surprised by what they found. A Belgian official inspected Guantanamo five times and called it a “model prison” that offered detainees better treatment than Belgian prisons. “I have never witnessed acts of violence or things which shocked me in Guantanamo,” he said. “One should not confuse this center with Abu Ghraib.”
While our humane treatment of Guantanamo detainees was consistent with the Geneva Conventions, al Qaeda did not meet the qualifications for Geneva protection as a legal matter. The purpose of Geneva was to provide incentives for nation-states to fight wars by an agreed set of rules that protect human dignity and innocent life—and to punish warriors who do not. But the terrorists did not represent a nation-state. They had not signed the Geneva Conventions. Their entire mode of operation—intentionally killing the innocent—defied the principles of Geneva. And if al Qaeda captured an American, there was little chance they would treat him humanely.
This was confirmed with gruesome clarity in late January 2002, when terrorists in Pakistan abducted
As I made my decision on Geneva protection, I also decided to create a legal system to determine the innocence or guilt of detainees. George Washington, Abraham Lincoln, William McKinley, and Franklin Roosevelt had faced similar dilemmas of how to bring captured enemy combatants to justice during wartime. All had reached the same conclusion: a court operated by the military.
On November 13, 2001, I signed an executive order establishing military tribunals to try captured terrorists.
