Decision Points

the TSP. Condi and Mike Hayden had talked the paper out of revealing the key elements of the program.

I asked the Times publisher, Arthur Sulzberger, Jr., and editor, Bill Keller, to come see me on December 5, 2005. It was a rare request, and I appreciated their willingness to speak face to face. They arrived around 5:00 p.m. Steve Hadley, Andy Card, Mike Hayden, and I greeted them in the Oval Office. We sat by the fireplace beneath the portrait of George Washington. I told them the nation was still in danger, and their newspaper was on the verge of increasing that danger by revealing the TSP in a way that could tip off our enemies. Then I authorized General Hayden to walk them through the program.

Mike is a calming personality. He is not a macho guy who tries to intimidate people with the stars on his shoulders. He talked about his long career in intelligence and his natural suspicion about any program that could result in collecting information on U.S. citizens. He outlined the safeguards in place, the numerous legal reviews, and the results the program had produced.

Mike’s briefing lasted about thirty minutes. I watched the Times men closely. They were stone-faced. I told them they could ask Mike any question they wanted. They didn’t have many. I looked directly at Sulzberger and strongly urged that he withhold the story for national security reasons. He said he would consider my request.

Ten days later, Bill Keller called Steve to say the Times was going forward with the story. We had no chance for a closing argument. They had posted it on their website before Keller placed the call.

I was disappointed in the Times and angry at whoever had betrayed their country by leaking the story. The Justice Department opened a criminal investigation into the disclosure of classified information. As of the summer of 2010, nobody had been prosecuted.

The left responded with hysteria. “He’s President George Bush, not King George Bush,” one senator blustered. “The Bush administration seems to believe it is above the law,” another said. One immediate effect of the leak was to derail the renewal of the PATRIOT Act, which was set to be reauthorized by Congress. “We killed the PATRIOT Act,” Senate Minority Leader Harry Reid, who had voted for the law in 2001, bragged at a political rally.

Ultimately the PATRIOT Act was renewed, but the leak created a bigger problem. Telecommunications companies suspected of helping the government operate the TSP faced massive class-action lawsuits. That was unfair. Companies that had agreed to do their patriotic duty to help the government keep America safe deserved to be saluted, not sued. One thing was sure: Any hope of future cooperation from the telecom industry was gone unless we could provide legal immunity.

In early 2006, I began outreach to key legislators on a bill modernizing the Foreign Intelligence Surveillance Act. The new legislation provided explicit authority for the kind of surveillance we had conducted under the TSP, as well as liability protection for telecom companies.

The debate continued in fits and starts for two years. Fortunately, I had two persuasive advocates: Director of National Intelligence Mike McConnell, a clear-thinking former Navy admiral, and Attorney General Mike Mukasey, a tough-minded federal judge from New York. They spent hours on Capitol Hill explaining the need to close the gaps in our intelligence capabilities as well as the safeguards we had in place to prevent abuses.

Finally, both houses of Congress held a vote in the summer of 2008. The House passed the bill 293 to 129. In the Senate, it received 69 votes. The legislation essentially ended the debate over the legality of our surveillance activities. Congress had shown bipartisan support for a law that provided even more flexibility than we’d had under the Terrorist Surveillance Program.

The second event that forced our hand came in June 2006, when the Supreme Court ruled in Hamdan v. Rumsfeld.

The decision was the culmination of more than four years of litigation involving the military tribunals I had authorized in November 2001. It had taken two and a half years for the Defense Department to work out the procedures and start the first trial. No doubt it was a complex legal and logistical undertaking. But I detected a certain lack of enthusiasm for the project. With all the pressures in Afghanistan and Iraq, it never seemed like the tribunals were a top priority.

Lawyers advocating for the detainees moved with more urgency. In 2004, the Navy-appointed lawyer for Salim Hamdan—Osama bin Laden’s driver, who had been captured in Afghanistan—challenged the fairness of the tribunal. The appeals court upheld the validity of the tribunals as a system of wartime justice. But in June 2006, the Supreme Court overturned that ruling. The Court decided that, unlike Franklin Roosevelt and other predecessors, I needed explicit authorization from Congress to establish the tribunals.

The ruling also affected the CIA interrogation program. In his majority opinion, Justice John Paul Stevens ruled that a part of the Geneva Conventions known as Common Article III—written exclusively for “armed conflict not of an international character”—somehow applied to America’s war with al Qaeda. The provision prohibited “outrages upon personal dignity,” a vague phrase that could be interpreted to mean just about anything. As a result, CIA lawyers worried that intelligence personnel who questioned terrorists could suddenly face legal jeopardy. The CIA informed me that it had to suspend the interrogation program that had yielded so much lifesaving information.

I disagreed strongly with the Court’s decision, which I considered an example of judicial activism. But I accepted the role of the Supreme Court in our constitutional democracy. I did not intend to repeat the example of President Andrew Jackson, who said, “John Marshall has made his decision, now let him enforce it!” Whether presidents like them or not, the Court’s decisions are the law of the land.

Similar to the TSP leak, the Supreme Court decision made clear it was time to seek legislation codifying the military tribunal system and CIA interrogation program. I took the issue to the people with a series of speeches and statements. The most dramatic came in the East Room of the White House in September 2006. As a way to highlight the stakes of passing the bill, I announced that we would transfer Khalid Sheikh Mohammed and thirteen other high-ranking al Qaeda detainees from CIA custody overseas to Guantanamo, where they would face trial under the new tribunals Congress would create.

“This bill makes the president a dictator,” one congressman proclaimed. Other lawmakers compared the conduct of our military and CIA professionals to the Taliban and Saddam Hussein.

I was confident the American people had better judgment. Most Americans understood the need for intelligence professionals to have the tools to get information from terrorists planning attacks on our country. And they did not want Guantanamo detainees brought to the United States and tried in civilian courts with the same constitutional rights as common criminals.

Within a month of my East Room speech, Congress passed the Military Commissions Act of 2006 by a comfortable bipartisan majority. It contained everything we asked for, including authority for the tribunals to restart and for a president to use enhanced interrogation techniques, should he choose to do so.

As I listened to my last CIA briefing the morning before President Obama’s Inauguration, I reflected on all that had happened since 9/11: the red alerts and the false alarms, the botulinum toxin we thought would kill us, and the plots we had disrupted. Years had passed, but the threat had not. The terrorists had struck Bali, Jakarta, Riyadh, Istanbul, Madrid, London, Amman, and Mumbai. My morning intelligence reports made clear that they were determined to attack America again.

After the shock of 9/11, there was no legal, military, or political blueprint for confronting a new enemy that rejected all the traditional rules of war. By the time I left office, we had put in place a system of effective counterterrorism programs based on a solid legal and legislative footing.

Of course, there are things I wish had come out differently. I am frustrated that the military tribunals moved so slowly. Even after the Military Commissions Act was passed, another lawsuit delayed the process again. By the time I left office, we had held only two trials.

The difficulty of conducting trials made it harder to meet a goal I had set early in my second term: closing the prison at Guantanamo in a responsible way. While I believe opening Guantanamo after 9/11 was necessary, the detention facility had become a propaganda tool for our enemies and a distraction for our allies. I worked to find a way to close the prison without compromising security. By the time I left office, the number of detainees at Guantanamo had dropped from nearly 800 to fewer than 250. My hope is that many of those remaining will stand trial for their crimes. Some of the hardened, dangerous terrorists at Guantanamo may be very difficult to try. I knew