On Friday afternoon, January 11, 2002, after three weeks working at breakneck speed all the while enduring the Pentagon's constant badgering, Rogers and his crew were down on a dock of the bay celebrating the completion of 120 cells over some beers when a bus swept past escorted by military Humvees. The first detainees had arrived. Rogers was satisfied that he and his men had done the best they could with the materials at hand. Still, he knew that Camp X-Ray was inadequate to the task. For one thing, intelligence gathering would be exceedingly difficult in a setting where there was no isolating the detainees from one another, short of silencing them at gunpoint. For another, the ad hoc layout of the camp made moving detainees from cells to showers to interrogation rooms and back again inefficient, even dangerous. Moreover, the lack of basic infrastructureâof toilets in the cells, for instance, and the substitution of bucketsâset the stage for future altercations between prisoners and guards. Finally, if bad for the prison population, conditions at X-Ray weren't much better for the guards. “It took nearly a month for us to get the showers running in the tent city” that housed the guard force, Rogers noted. “We knew that X-Ray sucked,” Jeff Johnston allowed; “it simply didn't meet our needs.” From a “mission standpoint,” Rogers observed, “X-Ray was a dumb place.”
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So how, again, did the prison camp end up there? The answer, Rogers believes, has to do with a combination of factors. On the one hand, there was the general “arrogance” of Bush administration officials,
who refused to entertain opinions different from their own. “We know what to do,” said Rogers, mocking Pentagon chiefs; “now we're going to ram it down your throats.”
10
On the other hand, and related to this, was a more specific desire to consolidate all aspects of national security policy in the hands of political appointees atop the Pentagon, including intelligence gathering and interrogation, formerly the province of the FBI and the CIA. To pursue intelligence as thoroughly as the Pentagon envisioned would require legal coverâfinding a place where the law did not apply.
11
Sovereign territory of Cuba and hitherto ruled to be beyond the reach of federal courts, Guantánamo became the place.
But even here, as in the other ways that Guantánamo seemed like a good place to house a prison, the evidence was equivocal. Office of Legal Counsel deputy assistant attorney general John Yoo has been criticized for exemplifying the arrogant, go-it-alone style that characterized Bush administration foreign policy in the wake of 9/11, and for writing legal memos whose advocacy displaced dispassionate advice.
12
In the case of the December 28, 2001, Guantánamo memo, which Yoo describes as more like “a litigation strategy memo” than a close reading of existing law, his analysis was more cautious.
13
In this memo, while defending the constitutional immunity of Guantánamo Bay, Yoo anticipated the path by which due process and habeas corpus would make their way onto the naval base despite his own and his bosses' fervent objections.
In the Guantánamo memo, Yoo focused partly on court cases stemming from the migrant operations of the mid-1990s. The 1990s Guantánamo cases did not in fact address the question of habeas corpus (the Haitians and Cubans who passed through the base were not, formally speaking,
detainees
); rather, they were essentially debates about the applicability of due processâof the refugees' right to legal counsel. Administration officials believed that courts unwilling to grant refugees the right to counsel at Guantánamo were unlikely to extend habeas protection to al Qaeda or Taliban prisoners detained there. At stake was a cornerstone of Bush administration national security policy. “If a federal district court were to take jurisdiction over a habeas petition” emanating from Guantánamo Bay, Yoo warned Defense Department general counsel William J. Haynes, “it could review the constitutionality
of the detention and the use of a military commission, the application of certain treaty provisions, and perhaps even the legal status of the al Qaeda and Taliban members.”
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Yoo found the odds of a court assuming jurisdiction at Guantánamo unlikely. As evidence, he pointed to a Supreme Court ruling denying habeas to German agents seized and tried by American officials in China and imprisoned in Germany in the aftermath of World War II.
15
Aliens held in U.S. territory have indeed been granted habeas rights, the High Court acknowledged in
Johnson v. Eisentrager
(1950)â“presence in the country implied protection”âbut such was not the issue in the case at hand, where the German prisoners remained outside U.S. “sovereign” territory, and where “the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States.”
16
Yoo assumed that the Court's logic in
Eisentrager
would apply at Guantánamo Bay, where the lease by which the United States occupied the base distinguished Cuban “sovereignty” from U.S. “jurisdiction and control.”
17
Yoo conceded that the majority in
Eisentrager
appeared to conflate sovereignty and jurisdiction, possibly implying a “two-part test.” But he insisted that this was not the Court's intention. The Court's meaning was unmistakable: where another country is sovereign, U.S. law does not apply. For confirmation, Yoo pointed to an earlier case affirming Cuban sovereignty at Guantánamo Bay (
Vermilya-Brown Co. v. Connell
, 1948), as well as to the more recent ruling in the Haitian and Cuban refugee cases (
Cuban American Bar Association, Inc. v. Christopher
, 1994), where the Eleventh Circuit Court of Appeals denied federal jurisdiction at Guantánamo Bay.
In making the case for Guantánamo, Yoo ignored some inconvenient facts. For example, invoking
Eisentrager
to bolster the argument against habeas jurisdiction at Guantánamo Bay, he slighted important differences between the two cases. In
Eisentrager
, for instance, the plaintiffs had been seized and tried in China and imprisoned in Germany, locations whose legal status was never in doubt and where the plaintiffs had an opportunity to defend themselves before a military commission. Compare that with a remote corner of Cuba over which the United States exercises de facto sovereignty and about which a supposedly sovereign Cuba has nothing to say, and the analogy to
Eisentrager
seems to wear thin. Combine this with the fact that no legal process recognized as valid anywhere on earth constrained U.S. treatment of detainees at Guantánamo Bay, and the analogy unravels.
18
Nor was the precedent from the 1990s Guantánamo cases rock solid. Lower courts had repeatedly ruled against government assertions of a lawless Guantánamo. Though such rulings were ultimately vacated, at the very least they demonstrated an inclination among some federal magistrates to extend constitutional protections to executive actions undertaken in the absence of alternative legal recourse. According to Yoo, such meddling violated a key constitutional tenet that federal courts should steer clear of political questions unless authorized by congressional statute. The treatment of detainees was a case in point, and the president exercised authority “pursuant to the President's Commander-in-Chief and foreign affairs powers,” Yoo wrote. “Without a clear statement from Congress extending jurisdiction to [Guantánamo Bay], a court should defer to the executive branch's activities and decisions prosecuting the war in Afghanistan.”
19
This is the gambit on which Yoo staked much of his legal advice in the aftermath of 9/11.
20
In the undeclared and open-ended war on terror, the president could do whatever he saw fit. “By definition, if it was authorized by the president,” former national security advisor and secretary of state Condoleezza Rice told an audience in April 2009, in reference to Bush administration interrogation policy, “it did not violate our obligations under the Convention Against Torture. When the president does it, that means it is not illegal.”
21
This argument makes many federal judges uneasy. Few contest the president's expanded powers in wartime, but those powers do not extend indefinitely. The president remains answerable to law.
Confident in his opinion, Yoo confessed doubt about the drift of the courts. Although “a district court cannot properly entertain an application for a writ of habeas corpus by an enemy alien detained at Guantánamo Bay Naval Base, Cuba,” he argued, recent Guantánamo litigation suggested that “the issue has not been definitively resolved by the courts.” Thus, Yoo cautioned Haynes, “there is some plausibility that a district court would entertain such an application.”
22
Throwing caution to the wind, Haynes and his boss Defense Secretary Rumsfeld ordered prisoners brought to Guantánamo Bay early the next year.
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On April 27, 2009, Condoleezza Rice defended Bush administration detention and interrogation policy in an interview at Stanford University. Asked how the United States could continue to perceive itself as a beacon of democracy in the face of evidence of torture and indefinite detention at Guantánamo Bay and elsewhere, Rice fell back on what has become a staple trope of exâBush administration officials. “Unless you were there in a position of authority after September 11th,” Rice explained, “you cannot possibly imagine the dilemmas that you faced in trying to protect Americans.” While there was lots of “second-guessing now,” the only second-guessing that mattered to Rice was the hue and cry that would have ensued had thousands more Americans died “because we didn't do everything we could to protect them. If you were there in a position of authority,” she continued, “and watched Americans jump out of 80-story buildings because these murderous tyrants went after innocent people, then you were determined to do anything you could that was legal to prevent that from happening again. And so I think people understand that.”
23
Rice may be right that the majority of Americans understand the dilemma of how best to defend the country against an unconventional enemy as she posed it.
24
Former top Bush administration officials continue to insist that their decision to rewrite legal codes prohibiting torture and inhumane treatment of enemy detainees was all that stood between Americans and a second terrorist attack. The historical record suggests otherwise. Criticism of Bush administration policy has not emerged only now, as Rice suggests; nor has it emanated largely from outsiders. Rather, internal opposition to the Bush administration policies was immediate and unequivocal.
25
The fact that high-ranking Bush administration officials, many of them, like Rice, new to the challenge of national security, chose to ignore the counsel of seasoned military and intelligence officials cannot make that advice go away.
If a unanimous call to protect Americans at any cost did not drive the U.S. detention and interrogation policies at Guantánamo Bay and elsewhere, what did? There are several explanations for this debacle, all of which coalesce around a politicization of national security policy at the expense of expertise. A leading authority on the history of torture
maintains that torture occurs in democracies when “a national security bureaucracy overwhelms the democratic institutions that were designed to control it.”
26
In this case, the reverse seems true: the torture and abuse of prisoners in U.S. custody in the wake of 9/11 is attributable to the transfer of national security policy out of the hands of seasoned military and national security experts and into the clutches of an intimate group of political ideologues.
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Sometime in the first few months after 9/11, as the Bush administration cast about for novel interrogation techniques capable of softening up the most hardened terrorists, the telephone rang at the Joint Personnel Recovery Agency (JPRA) in Fort Belvoir, Virginia. On the line was William J. Haynes II, counsel to Secretary of Defense Donald Rumsfeld, who wanted to know what the agency tasked with training U.S. soldiers to resist enemy capture could teach Pentagon officials about inducing captives to talk. JPRA kept an archive of torture techniques used on American GIs by China, North Korea, and North Vietnam, among other autocratic states.
27
“Once we understood what [Haynes] was looking for,” JPRA's Randy Moulton told the U.S. Senate Intelligence Committee, “we provided a ⦠list of techniques.”
28
It would take these techniques the better part of a year to reach the prison at Guantánamo Bay. Meanwhile, no few senior military officials were becoming alarmed at the tenor and direction of this discussion. “We were absolutely marginalized,” the retired rear admiral and navy judge advocate general Donald J. Guter lamented, in reference to his fellow judge advocates general. “I think it was intentional, because so many military JAGs spoke up about the rule of law.” To Guter, there could be only one explanation for why the Bush administration sought a detention facility “outside the courts”: “What they were looking for was the minimum due process that we could get away with. I felt like they knew the answer they wanted to hear.”
29
Thomas Romig, Guter's army counterpart, remembered overhearing David Addington, legal counsel to Vice President Dick Cheney, warning fellow Bush administration officials not to involve Guter and Romig and their fellow JAGs
in the decision-making process; they weren't “reliable.” The outcome, Romig remarked, was “a disaster.”
30