Decision to Move Detainees Resolved Two-Year Debate Among Bush Advisers

Hamdan Goes to Court

A turning point in the debate, senior administration officials said, came 10 months later, when The Washington Post reported the existence of the secret CIA prisons in November 2005. At the time the White House refused to confirm or deny the program but said the report had harmed national security. European leaders publicly demanded explanations and privately sought an end to both the CIA program and to incarcerations without trial at Guantanamo Bay.

The detainee issue dominated Rice's winter trip to Europe and became a prime subject between Bush and his European counterparts. After meeting with German Chancellor Angela Merkel in January of this year, Bush complained about the public "misperceptions" about Guantanamo. But by June, Bush bluntly asserted at a news conference, "I'd like to close Guantanamo." He said that the facility had become an excuse for "some of our friends" to say the United States was not upholding its values.

At the same time, Gen. Michael V. Hayden had taken over as CIA director and suggested in a speech to the agency staff that he was going to review the viability of the CIA's secret program.

That review all but collapsed later in June when the Supreme Court ruled, in Hamdan v. Rumsfeld , that detainees must be put under the protections of the Geneva Conventions, in effect declaring the CIA's program illegal.

Even though comments from the justices at oral argument had suggested that they might rule against the administration's detainee policies, the White House counsel had made no contingency plans for a loss and was stunned by the decision.

"The court's decision was much more sweeping than we expected," a senior White House official said yesterday.

Most senior Justice Department lawyers believed the ruling would force the government to close the CIA's "black sites." Other lawyers disagreed.

In a series of emergency meetings with top government lawyers after the Hamdan ruling, the CIA's legal adviser, John Rizzo, told his colleagues that the program was becoming increasingly difficult to maintain anyway. Since its disclosure in press reports, several countries had asked the CIA to close prisons on their soil and other countries had refused requests to host new ones. Other lawyers noted that it had simply damaged the ability of U.S. intelligence agencies to work with important allies on almost anything.

The lawyers ended up agreeing that the CIA could not hold the suspects indefinitely. "There had to be an end game," said one official close to the deliberations.

As a compromise, they agreed that in principle the Hamdan decision did not mean that the sites could not exist; it just meant that the CIA could no longer handle suspects outside the boundaries of the Geneva Conventions.

Hamdan "forced our hand," said White House counselor Dan Bartlett, the only administration official who agreed to speak on the record. "We knew there was going to have to be some acknowledgment that they were in our hands." Also, he said, the intelligence value of interrogations had diminished to the point where the administration thought "we could bring them to justice."

The President Speaks

After nearly two dozen meetings of senior policymakers on the detainee issue, Bush convened his principal advisers at the end of August to make a final decision. Several had moved far away from the impassioned defenses of secret prisons that they had mounted a year earlier.