Profile: Pierre-Richard Prosper
Positions that Pierre-Richard Prosper has held:
- Ambassador-at-Large, Office of War Crimes Issues. (7/13/2001)
Pierre-Richard Prosper was a participant or observer in the following events:
Less than two weeks after 9/11, White House counsel Alberto Gonzales sets up an interagency group to design a strategy for prosecuting terrorists, and specifically asks it to suggest military commissions as one viable option for prosecution of suspected terrorists.
Membership - The initial participants include Gonzales; White House lawyer Timothy Flanigan; Pentagon general counsel William Haynes; the vice president’s chief counsel, David Addington; National Security Council lawyer John Bellinger; and State Department lawyer Pierre-Richard Prosper, a former career prosecutor who now serves as State’s ambassador at large for war crimes issues and who will head the group.
Various Options - The group spends a month in a windowless conference room at State, bringing in experts from around the government, including military lawyers and Justice Department lawyers. The Justice Department advocates regular trials in civilian courts, such as the trials of the 1993 World Trade Center bombers (see February 26, 1993). However, many in the group object, noting that terrorist trials in regular courthouses on US soil pose security risks. The military lawyers propose courts-martial, which can take place anywhere in the world and would have military protection. A third option, military commissions, would offer the security of courts-martial without the established rules of evidence and procedure courts-martial have; setting up such a system might offer more flexibility in trying suspected terrorists, but many in the group wonder if President Bush would require Congressional authorization. Prosper will later recall, “We were going to go after the people responsible for the attacks, and the operating assumption was that we would capture a significant number of al-Qaeda operatives.” In addition to the use of military commissions, the group begins to work out three other options: ordinary criminal trials, military courts-martial, and tribunals with a mixed membership of civilians and military personnel. The option of a criminal trial by an ordinary federal court is quickly brushed aside for logistical reasons, according to Prosper. “The towers were still smoking, literally. I remember asking: Can the federal courts in New York handle this? It wasn’t a legal question so much as it was logistical. You had 300 al-Qaeda members, potentially. And did we want to put the judges and juries in harm’s way?” Despite the interagency group’s willingness to study the option of military commissions, lawyers at the White House, according to reporter Tim Golden, grow impatient with the group. Some of its members are seen to have “cold feet.” [New York Times, 10/24/2004; Savage, 2007, pp. 135]
Parallel Process at White House - Unbeknownst to Prosper’s group, the White House is crafting its own version of military commissions or tribunals (see Late October 2001). When President Bush issues his executive order creating military tribunals
(see November 13, 2001), Prosper and his group will first learn about it by watching the nightly news. [Savage, 2007, pp. 138]
Entity Tags: US Department of Justice, US Department of State, William J. Haynes, Timothy E. Flanigan, Pierre-Richard Prosper, John Bellinger, Beth Nolan, Alberto R. Gonzales, Scott McClellan, Jay S. Bybee, John Ashcroft, David S. Addington
Timeline Tags: Torture of US Captives, Civil Liberties
At a private lunch meeting, Vice President Cheney presents President Bush with a four-page memo, written in strict secrecy by lawyer John Yoo of the Justice Department’s Office of Legal Counsel (see November 6-10, 2001), and a draft executive order that establishes military commissions for the trial of suspected terrorists (see November 10, 2001). The legal brief mandates that foreign terrorism suspects held in US custody have no access to any courts whatsoever, civil, criminal, military, domestic, or foreign. They can be detained indefinitely without charges. If they are to be tried, they can be tried in closed “military commissions.” [White House, 11/13/2001; Savage, 2007, pp. 138; Washington Post, 6/24/2007]
Military Commissions Suitable to 'Unitary Executive' Agenda - According to author Craig Unger, military commissions are a key element of Cheney’s drive towards a “unitary executive,” the accretion of governmental powers to the presidency at the expense of the legislative and judicial branches. Federal trials for terror suspects would put them under all the legal procedures provided under the US judicial system, an unacceptable alternative. Military courts-martial would give them the rights granted by the Geneva Conventions. Military commissions, however, are essentially tribunals operating outside of both civilian and military law. Defendants have few rights. Secret evidence can be admitted without being disclosed to the defendants. Hearsay and coerced testimony are admissible. Prisoners can be held indefinitely. [Unger, 2007, pp. 221-222]
No Bureaucratic Footprints - After Bush peruses the memo and the draft order, Cheney takes them back with him to his office. After leaving Bush, Cheney takes extraordinary steps to ensure that no evidence of his involvement remains. The order passes from Cheney to his chief counsel David Addington, and then to associate White House counsel Bradford Berenson. At Berenson, the provenance of the order breaks, as no one tells him of its origin. Berenson rushes the order to deputy staff secretary Stuart Bowen with instructions to prepare it for signature immediately, without advance distribution to Bush’s top advisers. Bowen objects, saying that he had handled thousands of presidential documents without ever sidestepping the strict procedures governing coordination and review. Bowen relents only after being subjected to what he will later recall as “rapid, urgent persuasion” that Bush is standing by to sign and that the order is too sensitive to delay. Berenson will later say he understood that “someone had briefed” Bush “and gone over it” already. “I don’t know who that was.” When it is returned to Bush’s office later in the day, Bush signs it immediately (see November 13, 2001). Virtually no one else has seen the text of the memo. The Cheney/Yoo proposal has become a military order from the commander in chief.
Dodging Proper Channels - The government has had an interagency working group, headed by Pierre Prosper, the ambassador at large for war crimes, working on the same question (see Shortly Before September 23, 2001). But Cheney and Addington have refused to have any contact with Prosper’s group; one of Cheney’s team later says, “The interagency [group] was just constipated.” Cheney leapfrogged over Prosper’s group with their own proposal, performing an adroit bureaucratic move that puts their proposal in place without any oversight whatsoever, and cutting Prosper’s group entirely out of the process. When the news of the order is broadcast on CNN, Secretary of State Colin Powell demands, “What the hell just happened?” An angry Condoleezza Rice, the president’s national security adviser, sends an aide to find out. Virtually no one, even witnesses to the presidential signing, know that Cheney promulgated the order. In 2007, Washington Post reporters Barton Gellman and Jo Becker will call the episode “a defining moment in Cheney’s tenure” as vice president. Cheney has little Constitutional power, but his deft behind-the-scenes manuevering and skilled bureaucratic gamesmanship enable him to pull off coups like this one, often leaving even the highest White House officials none the wiser. “[H]e has found a ready patron in George W. Bush for edge-of-the-envelope views on executive supremacy that previous presidents did not assert,” the reporters write. [White House, 11/13/2001; Unger, 2007, pp. 221-222; Washington Post, 6/24/2007]
Quiet Contravening of US Law - Six years later, Unger will observe that few inside or outside Washington realize that Cheney has, within a matter of days, contravened and discarded two centuries of American law. He has given the president, in the words of former Justice Department lawyer Bruce Fein, “the functions of judge, jury, and prosecutor in the trial of war crimes [and] the authority to detain American citizens as enemy combatants indefinitely… a frightening power indistinguishable from King Louis XIV’s execrated lettres de cachet that occasioned the storming of the Bastille.” [Unger, 2007, pp. 223-224]
Entity Tags: Stuart W. Bowen, Office of Legal Counsel (DOJ), Richard (“Dick”) Cheney, US Department of Justice, John C. Yoo, David S. Addington, George W. Bush, Barton Gellman, Bradford Berenson, Jo Becker, Bruce Fein, Condoleezza Rice, Craig Unger, Colin Powell, Pierre-Richard Prosper
Timeline Tags: Civil Liberties
An aerial shot of Camp X-Ray. [Source: Public domain]The US prison camp at Guantanamo receives its first 20 prisoners from the Afghan battlefield. [Reuters, 1/11/2002] The prisoners are flown on a C-141 Starlifter cargo plane, escorted during the final leg of the journey by a Navy assault helicopter and a naval patrol boat. The prisoners, hooded, shackled, wearing blackout goggles and orange jumpsuits, and possibly drugged, are escorted one by one off the plane by scores of Marines in full battle gear. They are interred in what reporter Charlie Savage will later call “kennel-like outdoor cages” in the makeshift containment facility dubbed Camp X-Ray. [Guardian, 1/11/2002; Savage, 2007, pp. 142-143]
Leaked Photos of Transfer Cause International Outcry - Pictures of prisoners being transferred in conditions clearly in violation of international law are later leaked, prompting an outcry. But rather than investigating the inhumane transfer, the Pentagon will begin investigating how the pictures were leaked. [Associated Press, 11/9/2002]
Guantanamo Chosen to Keep Prisoners out of US Jurisdiction - The prisoners are sent to this base—leased by Cuba to the US—because it is on foreign territory and therefore beyond the jurisdiction of US law (see December 28, 2001). [Globe and Mail, 9/5/2002] It was once a coaling station used by the US Navy, and in recent years had been used by Coast Guard helicopters searching for drug runners and refugees trying to make it across the Florida Straits to US soil. In 1998, the Clinton administration had briefly considered and then rejected a plan to bring some prisoners from Kosovo to Guantanamo. Guantanamo was chosen as an interim prison for Afghanis who survived the uprising at Mazar-e Sharif prison (see 11:25 a.m. November 25, 2001) by an interagency working group (see Shortly Before September 23, 2001), who considered and rejected facilities in Germany and other European countries. Group leader Pierre-Richard Prosper will later recall: “We looked at our military bases in Europe and ruled that out because (a), we’d have to get approval from a European government, and (b), we’d have to deal with the European Court of Human Rights and we didn’t know how they’d react. We didn’t want to lose control over it and have it become a European process because it was on European soil. And so we kept looking around and around, and basically someone said, ‘What about Guantanamo?’” The base may well have not been the final choice of Prosper’s group; it was still researching a Clinton-era attempt to house Haitian and Cuban refugees there that had been challenged in court when Rumsfeld unilaterally made the decision to begin transferring prisoners to the naval base. [Savage, 2007, pp. 143-144]
No Geneva Convention Strictures Apply to 'Unlawful Combatants' - Rumsfeld, acting on the advice of the Justice Department’s Office of Legal Counsel, publicly declares the detainees “unlawful combatants” and thereby not entitled to the rights of the Geneva Conventions. “Unlawful combatants do not have any rights under the Geneva Convention,” Rumsfeld says. Though, according to Rumsfeld, the government will “for the most part treat them in a manner that is reasonably consistent with the Geneva Conventions, to the extent they are appropriate.” [Reuters, 1/11/2002] There is no reason to feel sorry for these detainees, says Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff. He states, “These are people who would gnaw through hydraulic lines at the back of a C-17 to bring it down.” [New York Times, 6/21/2004]
British Officials: 'Scandalous' - Senior British officials privately call the treatment of prisoners “scandalous,” and one calls the refusal to follow the Geneva Convention “not benchmarks of a civilized society.” [Guardian, 6/13/2002]
Entity Tags: US Department of the Navy, United States, US Department of Defense, Pierre-Richard Prosper, Richard B. Myers, Clinton administration, Donald Rumsfeld, Charlie Savage, Guantanamo Bay Naval Base, Office of Legal Counsel (DOJ), Geneva Conventions
Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties
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