Decision Points

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 litigationinvolving 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 andthirteen other high-ranking al Qaeda detainees from CIA custody overseas to Guantanamo, where they