ARTICLE, TIM GOLDEN, "THREATS AND RESPONSES: TOUGH JUSTICE; AFTER TERROR, A SECRET REWRITING OF MILITARY LAW," NEW YORK TIMES, OCTOBER 24, 2004, AVAILABLE ON WESTLAW AT 2004 WLNR 4788371 Copyright (c) 2004 The New York Times. All rights reserved. October 24, 2004 TOUGH JUSTICE Section: 1 First of two articles: New Code, New Power THREATS AND RESPONSES: TOUGH JUSTICE; After Terror, a Secret Rewriting of Military Law TIM GOLDEN; Jack Begg contributed research for this article. First of two articles in series, Tough Justice, describes how White House, acting in great secrecy in aftermath of 9/11 terror attacks, gave military authority to detain foreign suspects indefinitely and prosecute them in tribunals not used since World War II; says officials bypassed federal courts and constitutional guarantees, determined to deal aggressively with terrorists they expected to capture; says legal strategy took shape as ambition of small core of conservative administration officials whose political influence and bureaucratic skill gave them remarkable power in aftermath of 9/11; says driving force behind new policy was Vice Pres Dick Cheney; notes that final details were hidden even from national security adviser Condoleezza Rice and Secretary of State Colin L Powell; says strategy has been source of sharp conflict within administration, eventually pitting Rice and Defense Sec Donald H Rumsfeld against one another over issues of due process, intelligence-gathering and international law; notes that some of most forceful critics of Pentagon's system have been uniformed lawyers assigned to defend Guantanano Bay detainees; notes that three years later, not single terrorist has been prosecuted, and only 4 detainees held at US naval base at Guantanamo Bay have been formally charged; detailed description of process by which military law was quickly and secretly rewritten; photos (L) WASHINGTON In early November 2001, with Americans still staggered by the Sept. 11 attacks, a small group of White House officials worked in great secrecy to devise a new system of justice for the new war they had declared on terrorism. Determined to deal aggressively with the terrorists they expected to capture, the officials bypassed the federal courts and their constitutional guarantees, giving the military the authority to detain foreign suspects indefinitely and prosecute them in tribunals not used since World War II. The plan was considered so sensitive that senior White House officials kept its final details hidden from the president's national security adviser, Condoleezza Rice, and the secretary of state, Colin L. Powell, officials said. It was so urgent, some of those Westlaw. 10/24/04 NYT 11 The New York Tinies Page 2 involved said, that they hardly thought of consulting Congress. White House officials said their use of extraordinary powers would allow the Pentagon to collect crucial intelligence and mete out swift, unmerciful justice. "We think it guarantees that we'll have the kind of treatment of these individuals that we believe they deserve," said Vice President Dick Cheney, who was a driving force behind the policy. But three years later, not a single terrorist has been prosecuted. Of the roughly 560 men being held at the United States naval base at Guantanamo Bay, Cuba, only 4 have been formally charged. Preliminary hearings for those suspects brought such a barrage of procedural challenges and public criticism that verdicts could still be months away. And since a Supreme Court decision in June that gave the detainees the right to challenge their imprisonment in federal court, the Pentagon has stepped up efforts to send home hundreds of men whom it once branded as dangerous terrorists. "We've cleared whole forests of paper developing procedures for these tribunals, and no one has been tried yet," said Richard L. Shiffrin, who worked on the issue as the Pentagon's deputy general counsel for intelligence matters. "They just ended up in this Kafkaesque sort of purgatory." The story of how Guantanamo and the new military justice system became an intractable legacy of Sept. 11 has been largely hidden from public view. But extensive interviews with current and former officials and a review of confidential documents reveal that the legal strategy took shape as the ambition of a small core of conservative administration officials whose political influence and bureaucratic skill gave them remarkable power in the aftermath of the attacks. The strategy became a source of sharp conflict within the Bush administration, eventually pitting the highest-profile cabinet secretaries -- including Ms. Rice and Defense Secretary Donald H. Rumsfeld against one another over issues of due process, intelligence-gathering and international law. In fact, many officials contend, some of the most serious problems with the military justice system are rooted in the secretive and contentious process from which it emerged. Military lawyers were largely excluded from that process in the days after Sept. 11. They have since waged a long struggle to ensure that terrorist prosecutions meet what they say are basic standards of fairness. Uniformed lawyers now assigned to defend Guantanamo detainees have become among the most forceful critics of the Pentagon's own system. Foreign policy officials voiced concerns about the legal and diplomatic ramifications, but had little influence. Increasingly, the administration's plan has come under criticism even from close allies, complicating efforts to transfer scores of Guantanamo prisoners back to their home governments. Westlaw. 10/24/04 NYT 11 The New York Tinies Page 3 To the policy's architects, the attacks on the World Trade Center and the Pentagon represented a stinging challenge to American power and an imperative to consider measures that might have been unimaginable in less threatening times. Yet some officials said the strategy was also shaped by longstanding political agendas that had relatively little to do with fighting terrorism. The administration's claim of authority to set up military commissions, as the tribunals are formally known, was guided by a desire to strengthen executive power, officials said. Its legal approach, including the decision not to apply the Geneva Conventions, reflected the determination of some influential officials to halt what they viewed as the United States' reflexive submission to international law. In devising the new system, many officials said they had Osama bin Laden and other leaders of Al Qaeda in mind. But in picking through the hundreds of detainees at Guantanamo Bay, military investigators have struggled to find more than a dozen they can tie directly to significant terrorist acts, officials said. While important Qaeda figures have been captured and held by the C.I.A., administration officials said they were reluctant to bring those prisoners before tribunals they still consider unreliable. Some administration officials involved in the policy declined to be interviewed, or would do so only on the condition they not be identified. Others defended it strongly, saying the administration had a responsibility to consider extraordinary measures to protect the country from a terrifying enemy. "Everybody who was involved in this process had, in my mind, a white hat on, "Timothy B. Flanigan, the former deputy White House counsel, said in an interview. "They were not out to be cowboys or create a radical new legal regime. What they wanted to do was to use existing legal models to assist in the process of saving lives, to get information. And the war on terror is all about information." As the policy has faltered, other current and former officials have criticized it on pragmatic grounds, arguing that many of the problems could have been avoided. But some of the criticism also has a moral tone. "What several of us were concerned about was due process," said John A. Gordon, a retired Air Force general and former deputy C.I.A. director who served as both the senior counterterrorism official and homeland security adviser on President Bush's National Security Council staff. "There was great concern that we were setting up a process that was contrary to our own ideals." An Aggressive Approach The administration's legal approach to terrorism began to emerge in the first turbulent days after Sept. 11, as the officials in charge of key agencies exhorted their aides to confront Al Qaeda's threat with bold imagination. Westlaw. 10/24/04 NYT 11 The New York Tinies Page 4 "Legally, the watchword became 'forward-leaning," said a former associate White House counsel, Bradford Berenson, "by which everybody meant: 'We want to be aggressive. We want to take risks."" That challenge resounded among young lawyers who were settling into important posts at the White House, the Justice Department and other agencies. Many of them were members of the Pederalist Society, a conservative legal fraternity. Some had clerked for Supreme Court justices, Clarence Thomas and Antonin Scalia in particular. A striking number had clerked for a prominent Reagan appointee, Lawrence H. Silberman of the United States Court of Appeals for the District of Columbia Circuit. One young lawyer recalled looking around the room during a meeting with Attorney General John Ashcroft. "Of 10 people, 7 of us were former Silberman clerks," he said. Mr. Berenson, then 36, had been consumed with the nomination of federal judges until he was suddenly reassigned to terrorism issues and thrown into intense, 15-hour workdays, filled with competing urgencies and intermittent new alerts. "All of a sudden, the curtain was lifted on this incredibly frightening world," he said. "You were spending every day looking at the dossiers of the world's leading terrorists. There was a palpable sense of threat." As generals prepared for war in Afghanistan, lawyers scrambled to understand how the new campaign against terrorism could be waged within the confines of old laws. A Mr. Flanigan was at the center of the administration's legal counteroffensive personable, soft-spoken father of 14 children, his easy manner sometimes belied the force of his beliefs. He had arrived at the White House after distinguishing himself as an agile legal thinker and a Republican stalwart: During the Clinton scandals, he defended the independent counsel, Kenneth W. Starr, saying he had conducted his investigation "in a moderate and appropriate fashion." In 2000, he played an important role on the Bush campaign's legal team in the Florida recount. In the days after the Sept. 11 attacks, Mr. Planigan sought advice from the Justice Department's Office of Legal Counsel on "the legality of the use of military force to prevent or deter terrorist activity inside the United States," according to a previously undisclosed department memorandum that was reviewed by The New York Times. The 20-page response came from John C. Yoo, a 34-year-old Bush appointee with a glittering resume and a reputation as perhaps the most intellectually aggressive among a small group of legal scholars who had challenged what they saw as the United States' excessive deference to international law. On Sept. 21, 2001, Mr. Yoo wrote that the question was how the Constitution's Fourth Amendment rights against unreasonable search and seizure might apply if the military used "deadly force in a manner that endangered the lives of United States citizens." Westlaw. 10/24/04 NYT 11 The New York Tinics Page 5 Mr. Yoo listed an inventory of possible operations: shooting down a civilian airliner hijacked by terrorists; setting up military checkpoints inside an American city; employing surveillance methods more sophisticated than those available to law enforcement; or using military forces "to raid or attack dwellings where terrorists were thought to be, despite risks that third parties could be killed or injured by exchanges of fire." Mr. Yoo noted that those actions could raise constitutional issues, but said that in the face of devastating terrorist attacks, "the government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties." If the president decided the threat justified deploying the military inside the country, he wrote, then "we think that the Fourth Amendment should be no more relevant than it would be in cases of invasion or insurrection." The prospect of such military action at home was mostly hypothetical at that point, but with the government taking the fight against terrorism to Afghanistan and elsewhere around the world, lawyers in the administration took the same "forward-leaning" approach to making plans for the terrorists they thought would be captured. The idea of using military commissions to try suspected terrorists first came to Mr. Flanigan, he said, in a phone call a couple of days after the attacks from William P. Barr, the former attorney general under whom Mr. Flanigan had served as head of the Justice Department's Office of Legal Counsel during the first Bush administration. Mr. Barr had first suggested the use of military tribunals a decade before, to try suspects in the bombing of Pan Am Flight 103 over Lockerbie, Scotland. Although the idea made little headway at the time, Mr. Barr said he reminded Mr. Flanigan that the Legal Counsel's Office had done considerable research on the question. Mr. Flanigan had an aide call for the files. "I thought it was a great idea," he recalled. Military commissions. he thought, would give the government wide latitude to hold. interrogate and prosecute the sort of suspects who might be silenced by lawyers in criminal courts. They would also put the control over prosecutions squarely in the hands of the president. The same ideas were taking hold in the office of Vice President Cheney, championed by his 44-year-old counsel, David S. Addington. At the time, Mr. Addington, a longtime Cheney aide with an indistinct portfolio and no real staff, was not well-known even in the government. But he would become legendary as a voraciously hard-working official with strongly conservative views, an unusually sharp pen and wide influence over military, intelligence and other matters. In a matter of months, he would make a mark as one of the most important architects of the administration's legal strategy against foreign terrorism. Beyond the prosecutorial benefits of military commissions, the two lawyers saw a less |