On Friday, May 10, a lawyer from his office walked down Granby Street in Norfolk to the Federal District Courthouse, passing several construction sites along the way. He pulled open the glass-and-chrome doors of the four-story building and made his way to the clerk’s office. There, he filled out the necessary paperwork and filed a habeas corpus petition, demanding that the government produce Hamdi and prove that he was being lawfully detained.
It was, Dunham knew, a long shot. He was filing as a “next friend”—a term of law meaning that he was acting on behalf of someone who was unable to look after his own legal interests. But the courts required a next friend to have had a prior, meaningful relationship with the person being represented, and Dunham had never met, spoken to, or even seen Yaser Hamdi. He would never be able to establish that he met the requirements.
Dunham had tried to get around that problem by recruiting a substitute next friend with credentials to act the part. He had tracked down Yaser Hamdi’s father, Esam Hamdi, in Saudi Arabia. But Esam expressed no interest in being named as the next friend. Dunham had no choice but to seek the role himself.
With the petition filed, the clock was ticking. A judge could well throw out the case if Dunham didn’t find a legitimate next friend. He put out another feeler to Esam Hamdi.
• • •
The following Monday, a copy of the habeas petition arrived at the Pentagon’s Office of the General Counsel. One of the lawyers there reviewed the filing, then briefed his boss, Jim Haynes, about it. Haynes was delighted.
He had been a participant in the administration’s months of debates about what to do with United States citizens who joined the Taliban or al-Qaeda in fighting American troops. To Haynes, the right answer seemed obvious. All citizens fell under the protections of the Constitution; the government was proscribed from throwing aside those rights when detaining or trying an American on any charges that could result in the loss of freedom. Deciding, by fiat, that those constitutional demands didn’t apply to terrorists seemed unsupportable. Haynes admired Dunham for his willingness to lock horns with the government over an issue of such fundamental import.
Haynes decided to let Dunham know what he thought. He dashed off a note to the public defender saying how much he respected him for the work he was doing.
• • •
At Guantanamo, General Dunlavey, the new commander of Task Force 170, was speaking by video teleconference with officers at Southern Command.
Dunlavey had settled in to his new job at the detention center, and had quickly developed a distaste for both law enforcement and the International Committee of the Red Cross. Both groups, Dunlavey grumbled, were interfering with interrogations of detainees by the military’s intelligence teams.
The Criminal Investigation Task Force at the detention facility was criticizing the rough treatment used in the intelligence interrogations, and the Red Cross officials were complaining that they were not gaining access to all of the captives. But that couldn’t be helped. As part of the effort to instill “learned helplessness” in the detainees, they were supposed to be kept isolated from everyone except their interrogators. If they were allowed to meet with the Red Cross—or even be exposed to the gentler “relationship” technique of law enforcement—then the intelligence program would collapse, he argued.
During the video teleconference, Dunlavey complained to the SOUTHCOM officers about the Red Cross. The group wasn’t helping the military, he said, and was repeating the detainees’ stories of torture—which were all lies. The Pentagon already knew from the Manchester Manual that al-Qaeda members were trained to falsely claim to have been subjected to brutality by interrogators. Why weren’t these people aware of that?
“Yeah, the Red Cross is trouble,” he said. “They are al-Qaeda.”
• • •
On a high floor at the Metropolitan Correctional Center in Manhattan, a team of federal marshals unlocked the door to the cell holding José Padilla. They instructed him where to stand, then slapped on handcuffs, leg irons, and shackles.
It was May 15. Padilla had been transported to the prison the previous night and was scheduled to appear that morning before Chief Judge Michael Mukasey in the federal courthouse next door. Mukasey was well versed in terrorism cases, having sat on some high-profile prosecutions including the trial of Omar Abdel-Rahman, known as the “blind sheikh.”
He was also familiar with the Padilla case. He had been the judge who signed the material witness warrant, based on an affidavit by Special Agent Joseph Ennis that attested to the government’s evidence on Padilla.
The marshals led Padilla through a side door in Courtroom 21A. He shuffled toward a table where Donna Newman, a defense lawyer, was waiting. After a short hearing, Mukasey appointed Newman as Padilla’s attorney.
For the next few weeks, the lawyer and her new client conferred about what course to follow. Prosecutors provided them with a copy of the Ennis affidavit; none of the information it contained was particularly strong. Newman wrote a motion challenging the government’s right to hold Padilla.
It wouldn’t take long to get a ruling on her motion, Newman figured. Mukasey had scheduled a conference for June 11, where she expected him to issue a decision.
The conference would never take place.
10
Blaine Thomas sprawled out on his bed at Guantanamo Bay and clicked on the television to watch cable news. The room was nothing much to look at, just four blank walls inside dilapidated housing that had been vacant for years. A decrepit air conditioner wheezed ineffectually against the oppressive heat, and Thomas was drenched in sweat.
He didn’t much care; he treasured these rare moments of solitude so he could rest and think. As the assistant special agent in charge with the Criminal Investigation Task Force assigned to the detention center, he spent his days juggling one demanding task after another—watching over his interrogators, working with analysts to tease out connections among detainees, and transmitting classified findings over a secure network called SIPRNet to his superiors at Fort Belvoir.
That was the work that gave him professional satisfaction. It was the other part—the turf warfare—that he found wearying. He wasted untold hours battling the intelligence interrogators and their lead cheerleader, General Dunlavey, the officer in charge. Dunlavey and his team openly scorned their civilian counterparts, snickering and rolling their eyes whenever they heard about trying to “build relationships” with detainees during interrogations—it was too gentle, too . . . lame. There was no shouting, no poking, no slapping or any of the other tough methods that the soldiers in the intelligence unit had been told were the most effective.
Thomas and his colleagues could only shrug; the only intelligence that they detected in Dunlavey’s team was in its name. They were mostly kids who seemed to have acquired their tough-guy tactics from the movies. Their sessions with the detainees always started with the same shouted questions—Where’s bin Laden? When’s the last time you saw him? Since most of the prisoners had never seen bin Laden, these pointless inquisitions gave away their interrogators as ignorant and easily fooled.
The hostility between the two camps left Thomas exhausted at the end of the day, longing for the sanctuary of his stifling room, where he could kick back with the television or a book. But there would be no rest for him tonight.
Shortly after eleven o’clock, there was a knock at the door. It was the supervisor for the FBI agents stationed at Guantanamo.
“I’ve got a message for you,” he said. “There’s a problem.”
Thomas had heard about the trouble long ago. Around February, the Pentagon had learned that terrorists had set up a bomb-making operation at three safe houses established by the former lieutenant governor of an Afghani province. The size and type of the explosives were particularly lethal, and plans were in the works to use them against American troops. That information had been conveyed to the intelligence unit at Guantanamo with orders to do whatever it took to wring th
e location of the safe houses out of the detainees.
The interrogators sprang into action like a bunch of Keystone Kops, dragging random detainees in for questioning and screaming at them to reveal what they knew about the bomb plot. It was like shooting in the dark at an unseen target in the desperate hope of hitting the bull’s-eye.
If this was old news to Thomas, the urgency of the threat was not. Time was running out. The military had learned that the bombs would be used in about ten days and had alerted the criminal task force at Guantanamo in hopes its interrogators could ferret out what the intelligence unit could not.
Ten days. Not much time. Just grabbing detainees to interrogate wouldn’t work; Thomas knew that he had to start off by figuring out which ones might actually know something about the safe houses.
Thomas turned it over in his mind. He was equipped for the task, having actually read the files on every detainee. And while he normally had a poor memory, details of each prisoner stuck in his head.
The name of the province rang a bell. One of the detainees had been identified as the governor in that very region. Since the intelligence suggested that one of that man’s former deputies was running the safe houses, he was an obvious candidate for questioning.
He hurried to another part of the barracks to find his operations chief. “I need you to get me two of our best interrogators, right now,” he said.
• • •
The detainee was brought into an interrogation room by military police. Two members of the military’s criminal investigative team and two FBI agents were waiting for him, alongside two interpreters. Thomas and the bureau supervisor were in the next room.
The police put the detainee in a chair, then chained him to an eyebolt drilled into the floor. “All right,” one interrogator said, “here’s why you’re down here.”
He told the prisoner what the Americans had discovered about the bombing threat. They knew he was an important man in the province, the interrogator said, important enough to know about the location of the safe houses.
“We need you to be cooperative,” the interrogator said.
Seconds ticked by. The detainee’s expression was impassive. Finally, he spoke, his tone respectful. “I know what you’re talking about,” he said. “I know where these safe houses are.”
“Then tell us.”
The detainee shook his head. “There’s nothing I can do for you. Not unless you do something for me.”
The man had not seen his wife and daughter for months, and in all that time they had been caught in a war zone. Every day, he ached with the fear that they had been killed. He had to know what had happened to them.
“Find out if my wife and daughter are alive. Then I will tell you what you want to know.”
One of the interrogators walked to the next room, where Thomas waited. He related the detainee’s condition for talking.
Thomas rubbed his face. “Oh, shit! How are we going to find that out?”
• • •
The detainee provided a phone number in Afghanistan—not his own, but a neighbor’s. That man would be able to find the detainee’s wife.
“If I can dial this phone number and speak to my wife,” he said, “then I will give this information to you.”
The interrogators were getting close, but allowing a detainee to make a phone call was a command decision. Thomas walked into the room. One of the investigators introduced him as the boss.
“Okay,” Thomas said. “We’re going to make this happen.”
But he had his own conditions. Two translators would sit next to the detainee, listening to every word. If the conversation veered onto any other topic, or if a woman wasn’t put on the phone, an agent would immediately disconnect the call. The detainee accepted the terms.
Thomas brought a telephone into the room, dialed the number, and handed it to the detainee. Within a few minutes, the man’s wife was on the line. She was fine, she told him, and their daughter was safe. Tears filled the man’s eyes, and the call quickly came to an end.
The detainee spent a moment pulling himself together. He looked up at the interrogators. “I keep my word,” he said.
Then he spelled out, in minute detail, where the Americans could find the safe houses.
• • •
Within a day, military officials stationed in Afghanistan confirmed that high-powered bombs were being built at the identified locations. Missiles destroyed the houses an hour later.
• • •
There were plenty of high fives among Thomas and his team when they heard the news. Their work had saved the lives of American troops in Afghanistan.
It had also proved a point. The intelligence interrogators had failed to find an iota of information about the safe houses. Roughing up detainees, yelling at them, depriving them of sleep—none of that had accomplished anything. But when the criminal investigators took over, thought the situation through, and then treated a detainee like a human being, they got what they were looking for in just a few hours.
Maybe General Dunlavey and his crew would finally figure it out, Thomas said. What better proof was there that the tactics of criminal investigators worked, and the ones being used by the intelligence teams did not?
A few days later, the deputy commander of the joint task force at Guantanamo dropped in to speak with Thomas. He seemed almost shamefaced.
“Hey,” he said, taking a seat. “General Dunlavey has ordered me to do a 15-6.”
“A 15-6?” Thomas asked, sitting bolt upright in his chair.
An investigation under Army Regulation 15-6. He would have to interview witnesses, gather evidence, and then submit a report with his findings.
“Dunlavey’s saying you broke protocol by letting a detainee make a phone call.”
“What we did saved lives, and you’re going to investigate us for it?” Thomas snapped.
“I know, it’s unbelievable. But I’ve been given an order. I have to follow it.”
Thomas sank back down. “You guys don’t even understand what a real investigation is! You do a real investigation when someone does something wrong! And nothing was done wrong here.”
He left it at that. After all, he couldn’t blame the deputy commander, who was only following orders. It was Dunlavey who had some explaining to do. Thomas tracked him down.
“What the hell’s going on?” he demanded.
Dunlavey was unruffled.
“I can’t talk to you,” he said. “Not until I get the report back on the 15-6.”
Thomas stormed off, having no doubt why this was happening. Dunlavey was mad that the criminal investigators showed up his interrogators.
In Guantanamo’s house of mirrors, Thomas realized, success didn’t breed admiration. It triggered retribution.
• • •
The word in Norfolk legal circles about Magistrate Judge Tommy E. Miller was mixed. Lawyers considered him to be extremely knowledgeable of the law and a stickler for the rules of procedure. Still, some prosecutors questioned his evenhandedness, scenting an antigovernment bent. So, when the habeas petition for Hamdi was assigned to Miller, there were groans at the United States Attorney’s Office and cheers among the public defenders led by Frank Dunham.
Their responses proved prophetic—by May 21, Miller had given the government a judicial shellacking. Over the prosecutor’s objections, he accepted Dunham as a next friend of Hamdi, appointed him as counsel, and ordered the government to allow him to meet with his new client. And there were to be no mysteries about Hamdi—if the government wasn’t going to charge him with a crime, Miller declared, it would have to come up with a persuasive argument for his continued detention.
• • •
What exactly did “severe pain” mean, anyway?
That was the question bouncing around the Office of Legal Counsel, as John Yoo and other lawyers there worked on their assessment of the CIA’s proposal for harsh interrogations.
The phrase was a set piece in all of
the domestic and international prohibitions against torture. If an action is taken with the intent to inflict severe pain, unless it is part of a lawful punishment imposed for crimes, then it constitutes torture, the rules read.
But that description, the administration lawyers concluded, was murky. They set out to clarify it.
Jennifer Koester, a junior lawyer in the office just a year out of Yale Law School, had been assigned to determine the meaning of the words. She began by looking up the word severe in two dictionaries. She studied the legislative or ratification history of relevant rules—the antitorture prohibitions under Title 18 of the Federal Criminal Code and the U.N. Convention Against Torture—as well as a handful of cases heard before both domestic and overseas courts.
When she finished that review, Koester prepared a first draft of her analysis, arriving at a conclusion that was even vaguer than the words severe pain. It was the result, she wrote, of “extreme conduct” that went beyond cruel, inhuman, or degrading treatment.
The draft went to John Yoo, and he wasn’t satisfied. There had to be a stronger basis in the law, he believed, for coaxing out a more precise meaning.
On May 23, he wrote a comment about the draft. “Is severe used in this way in other parts of the US Code?”
Koester and other lawyers got back to work, looking for any law that used the words severe or severe pain.
• • •
The legal fight over Yaser Hamdi resumed on May 24.
Judge Miller, government lawyers decided, had exceeded his authority. He was a magistrate, essentially an assistant to the district court judge. He was supposed to be handling pretrial issues, but his orders amounted to granting the habeas motion.
The government filed its objections with Federal District Judge Robert Doumar, who had authority to toss out Miller’s orders.
The filing marshaled a number of precedents to contest the orders, asserting that Miller improperly applied the next friend rules and did not have the power to appoint an attorney to Hamdi. That was bad enough, the document said, but by ruling on issues that should not have been taken up until later, Miller had robbed the government of the chance to present its arguments for keeping Hamdi isolated.
500 Days: Secrets and Lies in the Terror Wars Page 38
