Judge J. Harvis Wilkinson III interrupted from Charlottesville. “How will you decide when the end of hostilities has happened, and the detainees can be released?”
True, Clement said, that posed a challenge. “But it’s crystal clear that there are hostilities now,” he said.
Wilkinson pressed his point. “This is a different kind of war,” he said. “There is not going to be a VE Day. There is not going to be a VJ Day. What does it mean for this detainee? Is it open-ended?”
The real issue, Clement said, is whether the executive branch had the right to hold a detainee during wartime. The fact that the end of a war couldn’t be predicted didn’t deprive the president and the military of that authority.
If, instead, the courts intervened and required evidence justifying the designation of an individual as an enemy combatant, the consequences would be enormous.
“Are we really going to call as a witness a U.S. military official who right now is on the front waging a war, and call him back to Norfolk so he can be a fact witness?” Clement asked. “Deference, a proper respect for the military’s judgment about who is an enemy combatant, a judgment the military has been making for two centuries, avoids that parade of horribles.”
Meddling with military judgments by bringing these cases into court, Clement said, would impede the ability of the armed forces to obtain critical intelligence and protect American lives.
“In an extraordinary case like this,” he said, “access to counsel would really interfere with the ongoing interrogation.”
Next, Hamdi’s side. Geremy Kamens, who worked with Dunham in the public defender’s office, stepped to the podium. “Your honor,” he said, “I believe the Constitution prevents the indefinite detention of an American citizen.”
Wilkinson broke in again. “What is the violation of constitutional law when the United States is detaining someone who has taken up arms against America and is captured on the field of battle?” he asked. “This has been done in every war that I know. I don’t know of any court decisions that said this is unconstitutional.”
Without the appointment of an attorney, Kamens replied, there was no check on whether the military’s designation was correct. They had provided no evidence that Hamdi was, in fact, an enemy combatant.
“The appointment of counsel means an end of intelligence-gathering efforts, doesn’t it?” Wilkinson asked.
“I’m not sure it would.”
“Sure it would!” Wilkinson snapped.
Once counsel was appointed, Wilkinson said, he couldn’t conceive of how the entire panoply of constitutional rights could be withheld from a detainee.
Then, trouble. Wilkinson suddenly lashed out at Judge Doumar, dashing any hopes of keeping the jurist from being antagonized by the appeal. “How in the world could the district court have proceeded to decide all these questions and potentially preempt them by appointing counsel without even giving the government a chance to be heard?” he railed. “That seems to have flunked the fairness test. I don’t understand it.”
The local paper in Norfolk picked up the words. By the next day, Doumar would be reading Wilkinson’s condemnation. Most likely, the lawyers figured, this was going to make their lives more difficult.
• • •
The next morning, Hamdi stirred as he heard footsteps approaching his cell at the Norfolk Naval Station. It was an officer he knew, coming by on his early rounds. He liked the man; he clearly cared about Hamdi’s well-being.
Still, Hamdi wasn’t feeling well. He was depressed and frustrated. He had tried to find ways to pass the time—asking for a deck of cards and a Game Boy—but his requests either went unanswered or were rejected. So he sat alone, hour after hour, with nothing to do and no one to engage in conversation. The morning rounds were the most exciting part of his day.
The officer arrived at Hamdi’s cell. “Good morning,” he said. “How are you today?”
“Not so good,” Hamdi replied. “I just . . . how much longer am I going to be kept here? And why haven’t I been given a chance to meet with a lawyer?”
“I understand this is very hard for you,” the officer replied. “I can assure you that your situation is under review, but it’s outside our control at this facility.”
Hamdi shook his head and tears welled in his eyes.
“Have faith,” the officer said. “In time, these matters will work themselves out.”
• • •
“All rise.”
The lawyers in the Washington, D.C., courtroom stood as federal judge Colleen Kollar-Kotelly took her seat behind the bench. It was 2:00 P.M. that same day, and Clement was ready to fight two more detainee cases.
These, he thought, were the easier ones—Rasul, brought by Clive Stafford Smith, Joe Margulies, and the Center for Constitutional Rights; and Odah, filed by Tom Wilner from Shearman & Sterling. None of the detainees were American citizens, all of them had been picked up by the military in Pakistan and Afghanistan. No one, he thought, could reasonably expect to win an argument that the United States was remiss in holding them incommunicado.
After the lawyers introduced themselves, Kollar-Kotelly glanced at some papers on her desk. There were two suits here, she said, one a habeas petition and the other—something else, premised on statutes and constitutional rights. She asked Clement to speak first. He ticked off the same arguments he gave in Richmond: The president had the authority, the military designation of an enemy combatant couldn’t be challenged, threats to national security had to be considered. At times, his words were identical to those he had delivered the day before.
“The notion that they have no access to courts does not mean they are without rights,” Clement said. “The scope of those rights is for the political and military branches to determine.”
Kollar-Kotelly launched into questions that echoed those asked by the judges in the Hamdi case. How were these men designated enemy combatants? When would hostilities be considered over? Would they ever be charged?
“Is it an open-ended detention that doesn’t have finality to it?” Kollar-Kotelly asked.
“There will be an end point to the detention, but it’s the government’s contention that that decision is for the executive branch to make,” Clement replied.
Margulies came next, arguing that his clients were being held improperly, that the United States was acting as judge and jailer, and that the court had the power to grant the habeas petition.
Then, it was Wilner’s turn, and from the outset, the judge questioned whether his case differed from the others filed on behalf of detainees.
“We are not at this time seeking their release,” he said.
The primary reason, he said, was that he had no basis claiming they should be freed, because the lawyers knew none of the facts that led to their detention. “We are seeking basic rights while they are in confinement,” Wilner said.
The judge was perplexed. Wilner wanted due process rights for his clients, she said, which were not significantly different from what Margulies was seeking. “I don’t understand why this is really not a writ of habeas corpus, although you have obviously framed it differently,” she said.
“Your honor,” he replied, “the total fact is we don’t know what we are entitled to, because we’ve had no access to them. We don’t know what’s happening. So, as a very first step at this point, we want basic rights for them.”
Kollar-Kotelly still struggled with the argument. “So,” she said, “you’re claiming that they are lawfully in custody?”
“We are not challenging the government’s right to take people into custody,” Wilner replied. “We are challenging the conditions of their custody, being held without certain rights.”
The judge flipped to a page in Wilner’s motion and took a moment studying a particular sentence.
“You say that the government’s position would, quote, enable federal officials to capture foreign nationals anywhere in the world, forcibly transport them to and hold them
incommunicado in exclusive enclaves,” she said, “denying them not only the most basic procedural rights of due process, but substantive rights as well, including guarantees against torture.”
She looked up at Wilner. “Isn’t this somewhat of an extreme proposition?”
• • •
At that moment, just over a mile away, lawyers at the Office of Legal Counsel were reviewing the latest memo defining torture.
They had successfully located the words severe pain in other statutes. But those laws had nothing to with punishment or the intentional infliction of harm; rather, they regulated government health care programs.
Still, just as in the antitorture laws, the phrase severe pain was not defined and instead was used as a descriptor for something else—in this case, an emergency medical condition. The language of the law identified such urgent threats as:
. . . a condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in placing the individual’s health [or the health of an unborn child] in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of bodily organs.
Even without a definition of severe pain, the language of the health care law made clear that the phrase referred to a symptom. Severe pain did not cause jeopardy to health, impairments of bodily functions, or dysfunction of bodily organs. Quite the opposite—those conditions could cause severe pain.
There was another issue: The wording of the health care statutes was as vague as that found in the antitorture laws. How could an interrogator determine whether a harsh technique caused “a jeopardy to health” or any of the other outcomes those laws listed?
To solve that puzzle, the lawyers resorted to creative linguistic license—they changed the words. Jeopardy to health became death. Dysfunction of bodily organs became organ failure. Serious impairment to bodily functions became the more unwieldy permanent damage resulting in a loss of significant bodily functions.
With that, the lawyers concluded, severe pain rising to the level of torture had been clarified.
• • •
The next phrase to parse: specific intent.
The antitorture statute didn’t just say that inflicting severe pain was illegal. Rather, its wording required that an individual had to have the “specific intent” to cause pain. That wording had always been applied in a simple way—essentially, if an action taken by an official accidentally caused severe pain, it was not illegal. If a prisoner tripped and landed on his face while being moved from one place to another, it didn’t qualify as torture under the law.
The attorneys at the Office of Legal Counsel concluded that they needed to provide a more detailed analysis of the term, at least in regard to its application to aggressive interrogation techniques.
Such questioning, they decided, did not fall under the specific intent to cause severe pain. When they used the harsh techniques, the interrogators did not have the objective of hurting detainees; rather, they were applying the tactics for the purpose of compelling answers to questions. They believed that the aggressive methods would not harm detainees—whether that belief was reasonable, the lawyers concluded, was irrelevant. And the fact that individuals with medical training would be observing the interrogations—and could stop them at any time—also suggested a lack of specific intent.
The antitorture prohibitions, the lawyers decided, did not apply to harsh questioning of suspected terrorists—in this case, Abu Zubaydah. No specific intent to cause severe pain, no legal violation.
• • •
The officer who checked on Hamdi at the naval brig every morning was at his computer, typing an e-mail to a superior. He related his encounters with Hamdi and expressed concern about the detainee’s deepening depression.
“After eight months in detention facilities (Kandahar, Camp X-Ray, Norfolk Brig) with no potential end in site and no encouraging news and isolated from his countrymen, I can understand how he feels,” the officer wrote.
Things weren’t helped by the fact that every time Hamdi asked a question, the officer had to reply with words that always amounted to “I don’t know.”
This was a delicate assignment. “I will continue to do what I can to help this individual maintain his sanity,” the officer typed, “but in my opinion we’re working with borrowed time.”
• • •
Officials from the Pentagon and Britain’s Ministry of Defense began three days of meetings on June 27 to discuss plans for a military strike against Iraq. And the Blair government reacted with near horror.
A report summarizing the discussions was sent to David Manning, Blair’s foreign policy advisor, and Jack Straw, the foreign secretary. Straw was bowled over by what he read. The Americans seemed to be planning a war based on wishful thinking that bordered on fantasy. There was nothing to suggest they understood the magnitude and complexity of military action against Iraq, and they seemed to have reverted to the mind-set that, if other nations didn’t see it their way, they would just go it alone.
On July 8, Straw prepared a three-page memo to Blair deriding the American plans as fatally flawed by logical inconsistencies and pie-in-the-sky assumptions.
The Bush administration had “no strategic concept for the military plan and, in particular, no thought apparently given to ‘day after’ scenarios,” Straw wrote.
It blithely took for granted the dubious conjecture that its military could swoop in, then rapidly identify and destroy Iraq’s weapons of mass destruction. The Bush team simply asserted that Kuwait would happily host a large-scale military action by the United States for up to two years, that other Gulf states would jump in with support, and that Iran and Syria would sit quietly on the sidelines as Western armies invaded their next-door neighbor.
“The support even of key allies such as Kuwait cannot be counted on in the absence of some serious groundwork by the US,” Straw wrote.
It also seemed that Blair’s discussions with Bush at the Crawford summit had been for naught. All of the prime minister’s conditions for British involvement in a war—first seeking new diplomatic action through the U.N., incorporating the Middle East peace process into any plan of attack, and pursuing an aggressive campaign to temper the global public hostility toward a military action—went unmentioned in the strategic discussion with the Americans.
“The fact that the US plan apparently ignores these conditions causes me particular concern,” Straw wrote. “Are they determined to go ahead regardless? Does the omission signal a weakening of US commitment to work for progress in these areas before deciding to launch a military action? None of them is getting any easier.”
The speech by Bush about the Israeli-Palestinian conflict had certainly done nothing to improve the situation, Straw added.
“The key point,” Straw wrote, “is how to get through to the Americans that the success of any military operation in Iraq—and protection of our fundamental interests in the region—depends on devising in advance a coherent strategy.”
Bush could not simply prepare to celebrate military victory. There also had to be a strong assessment of the economic and political repercussions of the war itself.
“They must also understand,” Straw concluded, “that we are serious about our conditions for UK involvement.”
• • •
Under CIA questioning, Abu Zubaydah was dribbling out bits of information. In Afghanistan, he told his interrogators on July 10, he had run two terrorist training camps, called Khaldan and Derunta. Al-Qaeda controlled neither, although Zubaydah had agreed that bin Laden could invite the trainees from those camps to join his group.
Scanty though the information was, it opened up a window on one of bin Laden’s methods for recruiting terrorists.
• • •
The ruling on the Hamdi appeal was handed down two days later, on July 12. And the results were a mixed bag.
The three-jud
ge panel was unanimous in its decision to throw out Doumar’s order. Hamdi did not have the right to a lawyer and could be held without charge. But it wasn’t a total victory for the government. The judges expressed deep skepticism about Clement’s position that the decisions of the administration and the military on detainees could not be contested in court.
If they accepted the administration’s argument, and threw out the Hamdi habeas petition, the ruling said, the judges “would be summarily embracing a sweeping proposition—namely that, with no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government’s say-so.”
The case would continue, with a judicial inquiry into Hamdi’s status as an enemy combatant. The lawyers were heading back to Judge Doumar’s court.
11
Security guards in dark SWAT uniforms patrolled an FBI compound hidden away in the rolling hills near Clarksburg, West Virginia. Inside the nine-mile perimeter, a small forest surrounded the world’s most technologically advanced storehouse for biometric crime data, the bureau’s Criminal Justice Information Services Division.
Since the 9/11 attacks, examiners at the sprawling headquarters had been searching through terabytes of records from the unit’s Integrated Automated Fingerprint Identification System, hoping to identify terrorists. Each scanned image of loops and swirls required about ten minutes to investigate, as high-powered computers combed through more than ninety million sets of fingerprints collected from civil and criminal agencies throughout government.
In July, one of the analysts punched a few keys on her computer, calling up a thumbprint that had been electronically recorded at Guantanamo on a portable Cross Match ID 1000 system. The mainframe started processing, and in minutes, a match appeared on the analyst’s screen. It was part of a complete set of fingerprints from a Form FD-249 that an immigration agent at Orlando International Airport had taken on August 4, 2001. The information was immediately forwarded to FBI headquarters in Washington.
500 Days: Secrets and Lies in the Terror Wars Page 41
