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 that if I released them and they killed Americans, the blood would be on my hands. Deciding how to handle them is the toughest part of closing Guantanamo.
In retrospect, I probably could have avoided some of the controversy and legal setbacks by seeking legislation on military tribunals, the TSP, and the CIA enhanced interrogation program as soon as they were created. If members of Congress had been required to make their decisions at the same time I did—in the immediate aftermath of 9/11—I am confident they would have overwhelmingly approved everything we requested. Yet in the case of the TSP and the CIA program, the risk of exposing operational details to the enemy was one I could not take until we had a better handle on the security situation.
I have been troubled by the blowback against the intelligence community and Justice Department for their role in the surveillance and interrogation programs. Our intelligence officers carried out their orders with skill and courage, and they deserve our gratitude for protecting our nation. Legal officials in my administration did their best to resolve complex issues in a time of extraordinary danger to our country. Their successors are entitled to disagree with their conclusions. But criminalizing differences of legal opinion would set a terrible precedent for our democracy.
From the beginning, I knew the public reaction to my decisions would be colored by whether there was another attack. If none happened, whatever I did would probably look like an overreaction. If we were attacked again, people would demand to know why I hadn’t done more.
That is the nature of the presidency. Perceptions are shaped by the clarity of hindsight. In the moment of decision, you don’t have that advantage. On 9/11, I vowed that I would do what it took to protect America, within the Constitution and laws of our nation. History can debate the decisions I made, the policies I chose, and the tools I left behind. But there can be no debate about one fact: After the nightmare of September 11, America went seven and a half years without another successful terrorist attack on our soil. If I had to summarize my most meaningful accomplishment as president in one sentence, that would be it.