500 Days: Secrets and Lies in the Terror Wars

by Kurt Eichenwald

  Yoo restated his argument, with Taft at first only asking questions. When Yoo finished, Taft shook his head.

  “I don’t agree with your ‘failed state’ analysis,” he said. “And you’re hanging a lot on that one definition.”

  Maybe, Yoo said, they were handling this wrong. Even if Afghanistan was not a failed state, there were other reasons to deny the Taliban POW status—they didn’t follow the laws of war, for example. There was evidence that they had become so thoroughly intertwined with al-Qaeda that they were not so much a government as an extension of the terrorist organization. That alone was reason to justify treating them as unlawful combatants.

  “The president can go two possible routes,” Yoo said. “We could include both options.”

  Yoo promised to send the next draft of his memo over to the State Department and try to incorporate Taft’s position.

  • • •

  “Gentlemen, welcome to Guantanamo Bay.”

  Brigadier General Michael Lehnert smiled as he greeted the group of lawyers who had just joined him in a meeting room at the naval station. Everyone found a seat, the lights were dimmed, and Lehnert began a PowerPoint presentation about the detention center.

  An image was projected on the screen. “Guantanamo Bay,” it read. “The least worst place.”

  Everyone laughed. Rumsfeld said those words at a recent press conference, when a reporter asked what made Guantanamo the best location to hold the detainees.

  “Any day, we’re going to have T-shirts made up with that on it,” Lehnert joked. The soldiers were clearly proud of Rumsfeld’s nickname for the base.

  From there, Lehnert laid out the plans for the detention center. The PowerPoint displayed an image of Camp X-Ray.

  “We don’t have a new facility, but here’s what we’re doing with the existing facility,” he said.

  The next image. Drawings of a new camp.

  “Here’s what we’re going to build, what it’s going to look like,” Lehnert said.

  Then, the basic statistics. How many detainees could X-Ray hold, how many were already there, how long until the new camps were built. From there, it was on to the tour. An aide to Lehnert escorted them to old empty cages made from chain-link fencing.

  “We used these to hold the Haitians back in the 1990s,” the aide said. “We don’t have enough space otherwise.”

  “How do you know they’re still secure?” one of the lawyers asked. “It’s been ten years since they were used.”

  “Simple. We locked a couple of our guys in there and told them that if they could get out, they could have all the beer they wanted. They were shaking it and banging it, and they couldn’t get out. So, yeah, I think they’re secure.”

  The group walked around the holding area, most of the lawyers averting their eyes from detainees who were sitting cross-legged inside their cells.

  “We’re trying to emphasize safety,” the aide said. “No one’s allowed to be alone with a detainee. They’re constantly under observation from the watchtower. There are guard dogs. Last thing we want is for one of these guys to try and hurt somebody.”

  None of the marines on base questioned whether these were dangerous men. “The first guy who got here, when he landed, started shouting that he wanted to kill Americans,” the aide said. “We’re not going to let that happen. There are always people watching to make sure that the detainees don’t surprise anybody.”

  The tour ended, the lawyers ate lunch, and then they returned to the jet. As they took their seats, one of them chuckled.

  “Just a few weeks ago, those people were fighting in Afghanistan,” he said. “And now look. They’re all sitting back here.”

  Everyone agreed—this was a moment to be happy. The administration was taking down the enemy.

  The plane took off. As it was winging its way over the Caribbean, Addington approached Gonzales. Under the commissions order, Bush was supposed to designate each person who was to be tried before a military tribunal. But no one at Guantanamo was going to be heading into the American courts.

  “I think you should seek a blanket designation of all of the detainees being sent to Guantanamo as eligible for trial under the president’s order,” Addington said.

  Gonzales agreed.

  • • •

  The intelligence was sketchy. A detainee had told American interrogators about a man known as Sufaat—they hadn’t yet divined his full name—who was rumored to be running al-Qaeda’s biological weapons program. The previous summer, members of the group had helped Sufaat move laboratory equipment from Karachi to Kandahar, and while no one was told why al-Qaeda needed the sophisticated material, there was gossip that it was being used to grow the bacteria that cause anthrax. When the anthrax attacks began in the United States, at least one of the men involved in transporting the equipment believed that al-Qaeda was striking America with Sufaat’s microbes.

  The CIA ran the name through its bulging list of al-Qaeda members and associates. There were more than a few “Sufaats,” so there was no telling who, if any of them, was the right man.

  The raw intelligence was included in the threat matrix report, delivered through the national security system. There were strong reasons to suspect, administration officials concluded, that al-Qaeda was behind the anthrax mailings.

  Then, another scrap of information: Sufaat had fled Afghanistan for Pakistan to set up a new anthrax lab. The Americans believed they had even learned the location where the experiments were being conducted. FBI agents involved in the investigation of the anthrax attacks headed to Pakistan and searched for the laboratory.

  They were close to the truth. Sufaat was the researcher responsible for al-Qaeda’s anthrax program, he had fled from Afghanistan to Pakistan, and he had resumed his work there. But the information divined by the Americans about where he was hiding was wrong.

  The FBI agents returned to the United States, convinced that the lab was in some part of Pakistan. They just didn’t know where.

  • • •

  Canadian authorities fanned out across Ottawa on the morning of January 22, conducting searches and interviews in their continuing investigation of Maher Arar and Abdullah Almalki.

  At that point neither man was in the country. Almalki had traveled to Malaysia with his wife, children, and parents to visit his wife’s family. Arar was in Tunisia to attend to his father-in-law, who was ill. His wife, Monia Mazigh, was pregnant and couldn’t make the trip.

  At 7:30 A.M., two Mounties arrived at Arar’s apartment in Nepean, a city adjacent to Ottawa. Corporal Randy Buffam knocked on the door and Mazigh answered. Buffam and his colleague identified themselves.

  “Could I speak to Maher Arar?” Buffam asked.

  “He is not home.”

  There was a moment’s pause. “Where is he?”

  “Abroad.”

  “What do you mean by abroad?”

  “Overseas.”

  “How long has he been gone?”

  “He’s been away for three weeks.”

  Mazigh grew increasingly uncomfortable. She had no idea why these men were at her door or what they wanted with her husband.

  “How long until he returns?”

  “Maybe three days.”

  “Whereabouts is he overseas?”

  “Tunisia.”

  This wasn’t going anywhere. Buffam left his business card and asked Mazigh to have her husband call.

  In a different part of town, the Mounties were questioning Almalki’s brother. They wanted to know about the radios that Almalki’s company, Dawn Services, was selling to a Pakistan corporation. Similar radios had been found in Afghanistan—not necessarily the same radios, just the same make and model. Still, they believed Almalki might have been the one who was shipping the technology to al-Qaeda. The brother knew nothing, and the Mounties left.

  As the years passed, the Mounties would conduct innumerable interviews trying to connect Almalki’s radios to the ones found in Afghanistan. But they
would never check serial numbers against those in Almalki’s shipping documents. They wouldn’t even contact Microelectronics, the Pakistani company that Almalki had told them was his customer. Officials with Microelectronics later said they would have gladly confirmed their purchases from Almalki if someone had just asked.

  • • •

  Arar telephoned Canadian officials from Tunisia later that day and left a voice mail. Why, he demanded, were the Mounties going to his apartment so early in the morning without warning? They had disturbed his pregnant wife.

  Buffam called back and for several days they traded calls until Arar returned to Ottawa. The officer reached him there and asked him to come in for an interview.

  “For what reason?” Arar asked. “How did you get my name?”

  He couldn’t discuss an ongoing investigation over the phone, Buffam said. “We’d like to meet you in person to simply clarify some issues which have surfaced as a result of our inquiries.”

  Arar said that he had just returned from Tunisia and could not meet Buffam until the next day.

  The call unnerved Arar. He decided that, if he was going to be questioned by the police, he wanted a lawyer there. He telephoned Michael Edelson, who agreed to meet with Arar. The lawyer immediately called Buffam and left him a voice mail. He said that he was representing Arar, and if the police wanted to speak to his client, they needed to go through him. Moreover, Edelson said that if he arranged for officers to speak with Arar, his client’s statements couldn’t be used against him in any future legal proceeding. The interview would be used to provide whatever clarification was needed. Nothing more.

  Buffam consulted another officer with the Mounties. They agreed—the meeting with Arar should be canceled if they couldn’t use his comments in a prosecution. It was a waste of time to question him just to gather information.

  • • •

  The final debate about the Geneva Conventions issue was scheduled to be held at a meeting of the National Security Council. In preparation, officials were pulling together memos in support of their positions.

  The day after returning from Guantanamo, Yoo had sent Gonzales a new thirty-seven-page opinion; it contained modest changes, but the document still amounted to a robust argument that the conventions were irrelevant in the war against the Taliban and al-Qaeda.

  Memos from other administration officials—including Powell—hadn’t arrived yet, but Gonzales decided to put together a document summarizing the various arguments so that Bush wouldn’t be caught off guard at the meeting. On January 25, he turned the job of preparing the summary memo over to his deputy, Flanigan, who in turn sought Addington’s help.

  Flanigan was already at his computer working on a first draft when Addington arrived, placed a chair behind him, and started reading. At first, Addington made some suggestions while Flanigan did most of the writing. When he finished, Flanigan sent an electronic copy of the memo to Addington for an edit.

  The draft strongly supported Bush’s original position. It presented a truncated—and inaccurate—representation of Powell’s arguments along with a lengthy series of bullet points about why Bush had been right.

  The legal opinion of the Justice Department, the memo said, was definitive: Bush had the constitutional power to deem the conventions inapplicable, and such a decision was allowable under the treaties. From a policy perspective, this was a new kind of war, one never conceived by the original negotiators of the conventions, and Bush could not allow himself to be locked into an inflexible system that didn’t apply to the current situation.

  Addington reviewed that portion of the memo. Too many people seemed to be unaware of the scope of Geneva’s requirements. He wanted some way to emphasize how off the mark the conventions were in this new world.

  He started typing.

  “This new paradigm renders obsolete Geneva’s strict limitations on the questioning of enemy prisoners,” he wrote, “and renders quaint some of its provisions requiring the captured enemy to be afforded such things as commissary privileges, scrip [i.e., advances in monthly pay], athletic uniforms and scientific instruments.”

  That was good, he thought. Anyone wondering why the conventions didn’t fit with this war would now have to contemplate the al-Qaeda football team marching to the grill for some bin Laden burgers.

  • • •

  By 3:30 that afternoon, Flanigan and Addington were running up against a deadline. Gonzales had promised to have a draft of the memo sent to other officials, particularly Powell, and the time had come to ship out what had been written so far.

  Flanigan printed Addington’s edited version and handed it off to Gonzales, who wrote in a few revisions by hand. Flanigan typed in the changes, printed the draft again, then sent it to be faxed from the Situation Room.

  He took a moment to catch his breath, then gave Addington’s edit a careful read. While going over the second page, he winced.

  “. . . and renders quaint some of its provisions . . .”

  A little too snide, Flanigan thought. He liked the idea Addington was trying to convey, but hated the words. He edited out the line.

  • • •

  Powell was annoyed. Gonzales’s draft memo was wrong, or at least misleading.

  The memo said that Powell wanted Bush to rule that the Geneva Conventions applied to both al-Qaeda and the Taliban, but gave no further explanation what that meant. Then it suggested Powell was willing to settle on an agreement whereby al-Qaeda and Taliban fighters could be determined not to qualify as POWs under the conventions, but only on a case-by-case basis.

  Completely false. Powell never said any such thing. But that was why he needed to see the draft. Gonzales wanted Powell’s comments, and now he could try to get the memo to be accurate.

  His comments filled up a one-page, single-spaced memo. At the top, he rewrote the summary of his position.

  The Secretary of State believes that al Qaeda terrorists as a group are not entitled to POW status and that Taliban fighters could be determined not to be POW’s either as a group or on a case-by-case basis.

  Somehow, his argument had just slid by others in the administration. Powell was not demanding that anyone to be granted POW status. He just wanted Bush to publicly proclaim that the Geneva accords applied to the Afghan War. That’s all. Under Geneva, the administration would be in its right to declare that neither group qualified as POWs. There was no need to take the extreme step of announcing that the United States was going to ignore the conventions, Powell thought, when the same result could be reached by following them.

  From there, Powell tore at the underpinning of the memo’s logic. The “failed state” argument that had been advanced by Yoo and Delahunty was problematic—it contradicted the policies of the United States and the international community, which consistently held Afghanistan to its treaty obligations and identified it as a party to the Geneva Conventions. If Afghanistan was no longer a sovereign nation, then there could be no consequences for its failure to abide by any treaties. Again, a serious and unnecessary outcome, growing from a flawed legal interpretation.

  Powell attached his summary comments to his own letter for Gonzales. In it, he presented his real argument. There were two choices—the president could choose to determine that Geneva did not apply to the Afghan War and deny POW status to the Taliban and al-Qaeda. Or the president could determine that Geneva did apply to the Afghan War and deny POW status to the Taliban and al-Qaeda.

  Both options, he wrote, provided the same flexibility on how detainees were treated, including with respect to interrogation, detention, and trials. Both allowed the administration to withhold the benefits and privileges of POW status. Neither option entailed significant risk that American officials would be prosecuted under domestic law on the grounds that they had committed a grave breach of the conventions.

  By applying Geneva to the Afghan War, the president would be continuing to espouse the country’s unwavering support for the conventions. It would preserve A
merica’s credibility and moral authority, provide the strongest legal foundation for the administration’s actions, and maintain the POW status for American soldiers.

  His argument, Powell thought, was hard to refute.

  • • •

  The next morning, Gonzales checked his BlackBerry and saw that the Washington Times had an exclusive story on its front page.

  POWELL WANTS DETAINEES TO BE DECLARED POWS, the headline read. MEMO SHOWS DIFFERENCES WITH WHITE HOUSE.

  A memo. It was Gonzales’s draft memo, the one he was preparing for Bush. The one that incorrectly portrayed Powell as pushing for al-Qaeda and Taliban detainees to be deemed POWs. Now that error had been publicized as fact.

  Worse, this was legal advice to the president from the White House counsel. This wasn’t just some policy memo; it was protected by attorney-client privilege. And someone had handed it over to the press.

  Gonzales was furious. The draft had been circulated to the State Department and the Pentagon. It had gone out the previous afternoon specifically seeking everyone’s comments, so that it could be revised. A new version already existed, and there was at least one more rewrite to go. What was the purpose of leaking a work in progress, particularly when it was wrong?

  He placed some calls to determine who had had access to the draft memo. The answer stunned him—once a document went into regular circulation, the number of officials able to get their hands on it was very large.

  This was a harsh lesson for Gonzales. Washington played a type of hardball that was new for him. He couldn’t drop his guard or assume that everyone was on the same team. He would have to be more careful.

  The final version of the memo went directly to the president. No one on the staff other than Gonzales, Flanigan, and Addington was allowed to even hold a copy.

  • • •

  That same day in Damascus, guards entered the cell of Ahmad El-Maati and once again pulled a hood over his head.

  His interrogation in Syria was complete—he had confessed to the bogus plot to bomb the Canadian Parliament, he had implicated Abdullah Almalki and Maher Arar as al-Qaeda members, he had admitted that the map found in his truck so many months before was part of a terrorist plan. All lies, but the torture stopped.