The press conference lasted just over six minutes. The stock market edged higher.
• • •
Yosri Fouda had kept his secret for months. The Al Jazeera reporter who had interviewed Khalid Sheikh Mohammed and Ramzi bin al-Shibh in Pakistan had been waiting to tell his bosses about the coup until the al-Qaeda terrorists sent him the tapes from the meeting. But now he was ready to let them in on the news about the remarkable interviews.
Among those Fouda informed was Sheikh Hamad bin Thamer al-Thani, the chairman of Al Jazeera. Soon, al-Thani notified his cousin the emir of Qatar, Sheikh Hamad bin Khalifa al-Thani. The emir, in turn, shared the information with George Tenet. The CIA obtained copies of the Al Jazeera interview. Now CIA agents had recordings that could be used to match the two terrorists’ voices to those from calls intercepted by the NSA.
• • •
Ted Olson wasn’t on time for the latest meeting about the appeal in the Hamdi case, so his deputy, Paul Clement, sat at the head of the table. “Let’s get started,” he said. “I hope everybody has had a chance to review the filing.”
A hearing before the Fourth Circuit Court of Appeals was scheduled to be held in a matter of days; Olson had come down in favor of Yoo’s argument for putting Judge Doumar in his place.
The number of lawyers in this meeting was much smaller than in the early strategy session. This time, the goal was to make sure that the Justice Department, the Pentagon, and the counsels for Bush and Cheney were all agreed on the arguments that Clement should make.
The centerpiece of the case would rest on the authority of the president and the military in a time of war. The habeas petition was a challenge to the president’s powers under the Constitution. Courts could not intervene with a military or presidential decision that declared an individual to be an unlawful enemy combatant; the judiciary was not qualified to make that kind of judgment and had no authority to question such a determination. Should the courts want to review the rights of an unlawful enemy combatant, they could. But that was different from challenging the designation.
On the specific issue of a habeas petition, there was strong precedent to argue that such filings from military captives should not be considered. There was Ex Parte Quirin, the German saboteurs case that the administration had used as the basis for establishing military commissions—one of the defendants was an American citizen, and his habeas petition had been tossed out. In 1950, in a case called Johnson v. Eisentrager, the Supreme Court ruled specifically that the judiciary should not consider a habeas petition filed by a foreign enemy. Another case, In re Territo, was directly on point—an Italian soldier who was born in the United States had been captured on the field of battle. The Ninth Circuit Court of Appeals ruled that Territo’s citizenship was irrelevant and that he had no right to file a habeas petition. The only weakness in that case was that, while it was the only precedent that dealt specifically with the issues raised in the Hamdi case, it was a circuit opinion. The Supreme Court did not hear an appeal.
There was something missing, Addington thought. “We should also mention that, even under the Third Geneva Convention, POWs don’t have a right to a lawyer and can’t challenge their detention,” he said. “Certainly, unlawful enemy combatants don’t get more rights than POWs.”
Good point. Clement wrote it down.
Olson arrived and listened to the discussion in silence. He sat back in his chair.
“I’m pretty pessimistic about the Supreme Court on the access-to-a-lawyer issue,” he said. “We may not get four votes for that, let alone five.”
Addington looked at Olson with an expression of disbelief. He had enormous respect for the solicitor general—so did Cheney—but he couldn’t imagine Olson was right. The precedents were all on the administration’s side! The court would have to reverse standing law stretching back decades!
“I’m surprised,” Addington said. “Do you really think so?”
Absolutely, Olson said. Four of the justices—John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer—were probably lost causes. Anthony Kennedy was a strong believer in the right to counsel, so he was going to be a problem. Even Sandra Day O’Connor was a question mark; she might have issues with the procedure that went into designating someone as an enemy combatant.
“They would have to reverse the precedents,” Addington said.
Olson nodded. That very well might happen. It was the same argument that Yoo had made months before—the Supreme Court was as much a political body as a judicial one. The mind-set of each justice had to be considered in predicting outcomes. And, under that analysis, the administration’s chances didn’t look good.
The argument before the Fourth Circuit Court of Appeals, Olson said, would be handled by Clement. An appearance by the deputy solicitor general would underscore how important the administration considered these issues. Some of the other lawyers were surprised, since they had expected Olson himself to appear in court.
As the meeting broke up, Olson approached Flanigan, drew him aside, and handed him a DVD.
“This is something I’m giving to friends,” he said. “It’s a tribute that Larry King has done for Barbara.”
Flanigan was touched. Olson’s wife, Barbara, had been killed on 9/11, when her plane crashed into the Pentagon.
King, the television personality, had assembled the video to honor his murdered friend. Perhaps, Flanigan thought, Olson’s grief might have something to do with his decision not to argue before the court on behalf of the administration. A lawyer was supposed to approach a case without emotion, and in this instance, no one could expect Olson to suspend his personal feelings.
• • •
Just a mile down Pennsylvania Avenue, in the offices of the law firm Shearman & Sterling, Tom Wilner was preparing for a different legal assault on the administration’s detainee policy.
Months before, Wilner had filed a suit on behalf of twelve Kuwaiti men held at Guantanamo, captioned al-Odah et al. v. United States. The case was joined with Rasul v. Bush, the habeas petition brought by Clive Stafford Smith, Joseph Margulies, and the Center for Constitutional Rights. Rasul had been going nowhere for months, but now the combined petitions were about to be heard in Federal District Court for the District of Columbia.
The bar that the lawyers faced was high. Unlike Hamdi, none of the plaintiffs were American citizens or were even detained in the United States. Instead, they were alien nationals seized overseas and held at Guantanamo. A court was far less likely to grant constitutional rights to foreign enemy combatants than to a citizen, and less likely still if they were being held at Guantanamo naval base in Cuba. Unlike in Norfolk, where Hamdi was imprisoned, the United States had no sovereign control over Guantanamo, the administration argued. That meant American courts had no jurisdiction over activities there.
To deal with those complexities, Wilner threw the equivalent of a baseball pitcher’s changeup to knock his adversaries off balance. He didn’t file a habeas petition—in fact, he didn’t challenge his clients’ confinement at all. Instead, his motion sought only to compel the administration to grant the Kuwaitis basic rights—access to the courts, the right to a lawyer—so that they could raise claims about the conditions of their confinement. The distinction was subtle, but Wilner hoped, by focusing solely on procedure, it could serve as the first step toward a full-throated challenge to the government’s policy.
For the strategy to succeed, though, Wilner and his team needed to dig up a precedent showing that constitutional rights apply to foreigners held in overseas locations controlled by the United States. It seemed a long shot, but such a prior ruling would strike at the heart of the government’s claim that Guantanamo lay outside the reach of American law.
Associates at the law firm scoured legal databases, and several times a week dumped piles of cases on Wilner’s desk that contained any discernible relevance to a range of issues raised by the lawsuit. Then, one day, a lawyer on the team dropped o
ff a Xeroxed copy of the decision in a little-known 1977 case called Ralpho v. Bell, heard in the court of appeals for the District of Columbia. The district where Wilner’s case was being heard!
The case had nothing to do with war or detention or enemy combatants. Instead, it involved a man from Micronesia who was contesting the procedures followed by United States officials in deciding how much he was paid out of a compensation fund administered by the government. There had been no hearing prior to the determination that Ralpho was owed little, and he had no idea how the conclusion had been reached. The American response was simple—while the United States had political control of Micronesia through a trust agreement, it had no sovereignty over the territory. No sovereignty, no constitutional rights, no need for due process.
With each sentence he read, Wilner’s excitement grew. Then came the clincher:
It is settled that there cannot exist under the American flag any governmental authority untrammeled by the requirements of due process of law.
It didn’t matter, the court ruled, that the United States had no sovereign authority over Micronesia. Ralpho had the right to due process—hearings, lawyers, everything.
“Shit!” Wilner exploded in delight. “This is our case!”
He rushed to show the decision to his colleagues. As far as he was concerned, their position had just become ironclad.
• • •
Two military officers stood at the doorway of an interrogation booth in the recently constructed Camp Delta at Guantanamo Bay. Camp X-Ray, the makeshift quarters thrown together before the first detainees arrived, had been shuttered, and now the rooms for questioning detainees were more private and had a more professional appearance.
One of the officers was Britt Mallow, the commander of the Criminal Investigation Task Force that was charged with conducting interviews for use in prosecutions against detainees. The other was a senior official with the Defense Intelligence Agency, who was purported to be one of the military’s most experienced interrogators. The two were chatting about nothing in particular, and the conversation drifted onto the topic of interrogation tactics.
“You know, all these guys are the same,” the intelligence officer said. “All you’ve got to do is find what button to push and they’ll tell you anything you want to know.”
Mallow stared at his colleague. How fucking stupid is that?
“I don’t get where you’re coming from,” Mallow said. “You’ve got to take into account the backgrounds of these people for an interrogation. Are you saying that a guy from India is going to have the same cultural background as a guy from North Africa as a guy from Eastern Europe and a guy from South Texas?”
Most of the detainees were rural laborers, not trained soldiers or cunning spies. The majority were terribly unsophisticated. An individual approach had to be used for all of them—a cookie-cutter plan might work with some and shut down others. Questioning them was a delicate dance.
The intelligence officer sneered. “I’ve been around,” he said. “I know how to do this.”
Mallow’s heart sank. The ranks of the intelligence interrogators were filled with kids in their late teens, with all of the arrogance and ignorance of youth. Many didn’t bother to read the files of the captives they berated. They were green, Mallow had told himself. They would grow into their jobs.
But this intelligence officer had been around the block on interrogations. And he had no idea what he was talking about.
There was no one to teach these kids how to do the job. This was a problem with no easy fix.
• • •
The lawyers gathered at the White House counsel’s suite were ready to do battle. With just days to go before the next hearing in the Hamdi case, the debate over how best to win legal support for administration policies had yet to be resolved. Judge Doumar was beside the point—his ruling would certainly be appealed, no matter what his decision. But Ted Olson continued to worry about the Supreme Court; however valid the White House considered its legal analysis to be, Olson was doubtful the court would agree.
At the meeting in Gonzales’s office, Bradford Berenson was arguing that Olson had good reason for his misgivings. Berenson had worked as a clerk for Justice Anthony Kennedy, who was frequently the swing voter between the Supreme Court’s conservative and liberal jurists; Brett Kavanaugh, another White House lawyer who had worked for Justice Kennedy, agreed.
“You have to understand,” Berenson told the group, “Justice Kennedy will never accept that the president has absolute discretion to lock up an American citizen and deny him access to a lawyer. His feelings about the right to counsel are very, very strong.”
Addington broke in. “It’s ridiculous to surrender the president’s authority based on a supposition about what Kennedy might do. No one knows that.”
“David, you’ve got two people in this room who have both worked very closely with Justice Kennedy,” Berenson said. “We are the best source of information you’ve got about how he thinks. And both of us are telling you the same thing. He will never go along with this.”
“That’s naive,” Addington said.
“And that is know-nothingness!” Berenson shouted, slapping the coffee table. His hand caught the edge of an empty candy dish; it flipped into the air, landing with a clatter.
The shouting continued, when a secretary appeared at the door of the office.
“Everything okay in here?” she asked.
“Yes, it’s fine,” Gonzales replied with a smile. “Don’t worry.”
The secretary left and closed the door. For a moment, no one spoke.
Addington broke the stillness. His voice was calm. He had shifted from anger to teaching mode. He glanced around at each of his colleagues.
“Is there anybody in this room who believes that what we are about to do here is actually unlawful or unconstitutional?” he asked.
No one replied.
“And is this the policy that is the most protective of the citizens of the United States?”
Again, silence.
Addington sat back as he raised his arms and shrugged. “So what more is there to discuss?” he asked.
• • •
The debate ended, and the decision was left to Gonzales. He sided with Addington. The administration would push the most aggressive legal position possible.
• • •
On the afternoon of June 24, a group of reporters was waiting in the White House Rose Garden when Bush stepped behind a podium to deliver a speech that had been billed as a major policy address.
He opened his remarks at 3:47. “For too long, the citizens of the Middle East have lived in the midst of death and fear,” he said. “The hatred of a few holds the hopes of many hostage.”
It was intolerable: Israelis were captive to terror, Palestinians were living in squalor and humiliation. Without change, there was little reason to hope for a resolution of the Middle East conflict. But there was a way out of the impasse.
His vision, Bush said, was for the creation of two states living side by side in peace. To accomplish that, changes had to be made.
The Palestinians had to elect new leaders, people who were not compromised by their involvement in terrorism. They needed to construct new political and economic institutions, implement new security measures with their neighbors, adopt a new constitution granting authority to the Palestinian parliament, and embrace a working democracy.
“Today, Palestinian authorities are encouraging, not opposing, terrorism,” he said. “I’ve said in the past that nations are either with us or against us in the war on terror. To be counted on the side of peace, nations must act.”
Bush spoke of the obligations of the Palestinians for almost eight minutes. He stated that the United States would support the creation of a Palestinian state only once all of those conditions were met. Then for just over a minute, he said that, once steps were made to improve security in the region, the Israelis had to withdraw their forces to positions he
ld the previous year, stop settlement activity in the occupied territories, and release frozen Palestinian assets.
“The choice here is stark and simple,” Bush said. “The Bible says, ‘I have set before you life and death . . . therefore choose life.’ The time has arrived for everyone in this conflict to choose peace and hope and life.”
• • •
The Bush speech landed with a decided thud in the Blair government. British officials were at a loss to understand why the president had bothered making it. It could only stir up more enmity.
They found the concluding words particularly astonishing. In addressing a conflict between Jews and Muslims, the president quoted from the fifth book of the Hebrew Bible? Who thought that was a good idea?
The problem wasn’t with the speech’s premises; on those, Bush was right. Palestinian terrorism was undermining the peace process. Palestinian leaders were advocating violence. The Palestinian legislature was toothless, and needed real power that could come only from a new constitution. And Israel could not change its policies until the country’s security was ensured.
No, the largest problem was with the speech’s timing in the midst of heightened hostilities. The Palestinians saw the Israelis as the aggressors and viewed terrorism as the only choice they had to stand up to a regional superpower. They considered demands by the United States to be suspect from the start. Dismissing all of those realities would do nothing to calm the churning waters.
Perhaps, some of the British officials suggested, the speech was Bush’s attempt to satisfy Blair’s insistence that his Iraq policy must be folded into the pursuit of a broader Middle East peace initiative. If so, it failed miserably.
• • •
There were no federal judges in the Richmond courtroom when the June 25 hearing began on the Hamdi appeal. Instead, the three-judge panel was listening in from their chambers by teleconference, with one in Charlottesville, Virginia, and the other two in Greenville, South Carolina.
Clement presented his argument first, describing the historic power of the military and the president to detain an enemy during a time of war.
500 Days: Secrets and Lies in the Terror Wars Page 40
