Haynes said nothing, but his eyes were fixed on Mora as he drank in every word. He was in his “downloading information” mode, Mora thought.
“And you shouldn’t rely on the Beaver legal brief,” he continued. “It’s an incompetent piece of legal analysis.”
Its chief flaw was to set torture as the start and end point of the analysis. But that was not the boundary for permissible behavior; the treatment of a detainee did not have to rise to the level of torture to be illegal. Beaver’s memo was an astonishing repudiation of historic laws and jurisprudence that prohibited cruel, inhumane, and degrading treatment—actions that fell short of torture.
Take a step back and look at the conclusions, Mora said—international law didn’t apply, because the president says it doesn’t; domestic law doesn’t apply, because the detainees were being held at Guantanamo; and even if the laws were deemed worthy of consideration, only the most horrendous violations would be reviewed.
Then there was the approval signed by Rumsfeld, and the potential for political fallout from the secretary’s flippant remark about how many hours each day he spent on his feet.
“I’m confident that the secretary was meaning to be jocular,” Mora said. “But the defense attorneys for the detainees are sure to view it differently. If the memo isn’t withdrawn quickly, it’s going to be discovered and used at the military commissions. And, since his signature is on it, the secretary is certain to be called as a witness.”
Any competent defense lawyer would portray Rumsfeld’s note as a signal to interrogators that they shouldn’t worry about the limits spelled out in the authorization and instead should feel free to do whatever was necessary to obtain the information they needed.
The stakes were enormous, Mora said. “These memos and the practices they authorized threaten the entire military commission process.”
That was all Mora had to say. Haynes nodded.
“Thank you for bringing this to me, Alberto,” he said. “I’ll pay attention to what you said and think about it.”
Mora left the office in a flush of relief. Haynes had listened to everything he had said. Problem solved, and just in time. He and his family were about to jet off to Florida for the holidays. Now Mora could enjoy his vacation.
• • •
December 21, 10:23 P.M. Into the tenth hour of interrogation.
An army sergeant shoved al-Qahtani into a sitting position on the floor and stood over him.
“You don’t deserve to be seated in a chair like a civilized human being,” one of the interrogators said. “You’re beneath me. You should be at my feet.”
Al-Qahtani looked down.
“You’re a weak-minded coward,” the interrogator said. “You kill innocent women and children who are created by God.”
Nothing.
The interrogator launched into a monologue about Saudi Arabia, al-Qahtani’s homeland. The Saudi government had been making big changes, she said. It was cracking down on the terrorists, locking them up. As she spoke, she moved closer to al-Qahtani.
“Get away from me!” he snapped.
He pressed his hands and feet against the floor to thrust his body backward, but the guards lunged at him and flattened him on his back. The interrogator straddled him without putting any weight on him. As she continued speaking, al-Qahtani tried to knock her off by bending his legs; the guards grabbed his shins and held him down.
He turned his head and started praying loudly. The interrogator ignored him.
Al-Qaeda was on the run, she said. Qaed Salim Sinan al-Harethi, one of bin Laden’s top associates and a suspect in the Cole bombing, had recently been killed by the CIA.
“He was in a car in Yemen,” she said. “He probably thought he was safe, didn’t think we could find him. We hit him with a missile. Blew him up where he sat. Al-Qaeda can’t hide from us. It’s done.”
The linguist leaned in toward al-Qahtani as she translated the interrogator’s words.
“Get out of my face!” he spat.
She didn’t move and continued interpreting.
• • •
December 23, 12:30 A.M. Thirty minutes.
The lead interrogator walked into a booth where al-Qahtani was being held. A recording of white noise was playing and pictures of swimsuit models dangled from his neck. He looked distraught.
“How are you doing, Mo?” the interrogator asked.
“I have problems.”
“What are the problems?”
Al-Qahtani glared. “They are between me and God.”
“Tell me your problems. They can’t be solved unless you say what they are.”
Al-Qahtani wept.
The pictures of the swimsuit models he was forced to wear, the incessant questioning he was forced to endure, the stiff metal chair he was forced to sit on, all the other indignities he was forced to endure—those were his problems.
“I cannot handle this treatment much longer,” he said.
“Is there anything else that’s a problem for you? Are you in pain?”
No, al-Qahtani said.
For several minutes, the interrogator explained to al-Qahtani why he was being treated so roughly. The soldiers knew that he found all of these things unpleasant. That was the point. They wanted al-Qahtani to understand that they were in charge, that his situation was futile, that no matter how hard he resisted, they would never relent.
“You chose this lifestyle,” the interrogator said.
Al-Qahtani said nothing.
After a moment, the interrogator removed the pictures of the scantily clad women from around al-Qahtani’s neck.
“The test of your ability to answer questions is going to begin now.”
Al-Qahtani fell into a sullen silence. Then he looked up at the interrogator.
“I will answer your questions after you pour water over my head, and tell me you will do that to me day after day,” he said.
Al-Qahtani seemed to be looking for a way out. Perhaps he thought he could rationalize cooperation with the enemy if he himself set the rules for his mistreatment. But the interrogators couldn’t allow him to take control, even by agreeing to his request to mistreat him.
“Think about your decision to answer questions,” the interrogator said. “I’ll only ask questions if you fully cooperate.”
• • •
January 1, 11:00 P.M. Fourth hour.
Al-Qahtani was struggling to stay awake. An interrogator was discussing the Koran and the obligations it imposes on Muslims to observe justice for orphans. Al-Qaeda had left many children orphaned, the interrogator said. They deserved justice. Al-Qahtani could bring them justice by telling the truth.
“What made nineteen Saudi Arabian men want to kill themselves?” the interrogator asked.
“I’m not sure. Maybe they were tricked.”
“How could one man, bin Laden, convince nineteen young men to kill themselves?”
Al-Qahtani’s head rocked and his eyes closed. He was drifting in and out of sleep.
The interrogator loudly repeated the question. Al-Qahtani opened his eyes.
“They were tricked,” he said. “He distorted the picture in front of them.”
“Does that make you mad?”
“Yes.”
“Are you mad that your friends were tricked?”
“Yes.”
The interrogator felt pleased. Al-Qahtani did not realize he had just been lumped in with the hijackers.
“Did your friends know about the plan?”
“No.” Al-Qahtani’s head lolled.
“Did you know about the plan?”
“No.”
“Did Mohammed Atta know about the plan?”
“I don’t know.”
“Does it make you mad that he killed your friends?”
“Yes.”
“Are you glad you didn’t die on the plane?”
“Yes.”
“Are your parents glad you didn’t die?”
“Yes
.”
“Did you call your parents after you didn’t get on the plane?”
“No.”
“You knew getting on the plane was wrong, didn’t you?”
“Yes.”
“But you still wanted to fight?”
“Yes.”
Al-Qahtani’s head drooped and his words slurred. He said nothing more.
• • •
The weary eyes of John Leso, the army psychologist, filled with tears.
He had been stationed at Guantanamo Bay for six months, and had been deeply shaken by what he had seen. When given the assignment, he thought he would be treating psychologically distressed soldiers but was soon ordered to join the Behavioral Science Consultation Team, with responsibility for serving as a psychological advisor for interrogations. He had sat through a meeting that fall where members of the military and the CIA nonchalantly bandied about theories on how best to conduct abusive questioning—and how to make sure the Red Cross never found out. Now, in January, he was being rotated out and replaced as chief psychologist by an associate, Colonel Larry James. He was ready to leave Guantanamo, but feared that it would never leave him.
When James arrived at Guantanamo, he was shocked by Leso’s appearance. Once a bundle of eager energy, he had become a haggard, listless hulk of his old self. James couldn’t imagine what had happened but recognized the signature symptoms of trauma.
Leso had escorted James to his quarters and the two men had sat down. James waited for Leso to tell him what had happened.
Then the tears began.
“I was pressured to teach interrogators procedures and tactics that were a challenge to my ethics as a psychologist and my moral fiber as a human being,” he said. “Being part of this has been just devastating to me.”
Leso had witnessed bodies twisted in pain, sexual humiliation, the snarling of attack dogs used to frighten defenseless detainees. He had spent two days observing the interrogation of al-Qahtani, a near bystander with no authority to put a halt to even the most abusive treatment. The senior officers had not uttered a murmur of protest—in fact, they got their marching orders from higher-ups back home. He had tried to persuade the interrogators to ease up, and while they sometimes relented for a while, they always went back to playing rough. They were convinced that abusive tactics worked, even though detainees clammed up when they were used.
For the better part of the evening, Leso spilled his stories, and James played the role of caring sage to suffering patient. By the end of the discussion, Leso’s frayed nerves seemed to have steadied. He proposed a quick trip to the mess hall before the place closed. The two headed outside to the SUV.
As they bounced along, Leso stole a glance at his visitor. The hurt in his eyes, James thought, was startling.
“Colonel . . .” Leso began, and then stopped.
He paused, then started again.
“Colonel, you need to be real careful down here,” he said. “You can step in a minefield every hour of the day at this place.”
Buried explosives, at Guantanamo? Then, in a flash, James realized that Leso wasn’t talking about munitions. He was warning him to step carefully, because at any moment he might confront a direct attack on his values—not only as a psychologist, but also as a human being.
• • •
Alberto Mora walked into the kitchen in his mother’s Key Biscayne home and picked up the phone. It was David Brant, the head of NCIS.
“I’m sorry to be calling you during your vacation,” Brant said. “The abuse is still going on in Guantanamo.”
Mora took a deep breath and glanced out the window at his mother’s swimming pool, collecting his thoughts.
Nothing had changed? Maybe he had been wrong. Maybe this policy of abuse wasn’t some fumbling mistake.
“I’ll have to deal with this when I get back,” Mora said. He returned that same week.
• • •
At his fifth-floor office in the heart of historic Old Town Alexandria, Frank Dunham Jr. was reading the ruling just handed down in the Hamdi case. More than two months had passed since Dunham, the federal public defender, had argued before the Fourth Circuit Court of Appeals that the administration had to provide evidence that its detention of Hamdi was legal. But the three-judge panel disagreed.
Since Hamdi was picked up on a battlefield in Afghanistan, the administration had the legal right to designate him as an enemy combatant, the ruling said. An American could go to court to compel the government to justify his detention, but that required officials only to provide the basic facts and legal authority for the determination. Of course, the panel’s decision did not grant the government unlimited power—their ruling, the judges said, applied only when the detainee had been seized in a theater of war.
By the time Dunham reached the final page of the ruling, he knew the case was far from closed. It was heading to the Supreme Court.
• • •
“Jim,” Mora said, “I was really surprised when I got back to hear that the detainee abuse is still going on.”
It was the afternoon of January 9. Mora was in Haynes’s office again, this time ready to make a stink. Since his return to the Pentagon six days earlier, Mora had been consulting navy officials and reviewing a legal analysis about the issue written by the navy’s legal arm, the Judge Advocate General Corps. The brief was detailed and lawyerly, and its conclusion was straightforward—what was going on in Guantanamo was beyond the legal pale.
Mora handed Haynes a copy of the navy’s new legal opinion. Haynes gave it a glance; more advice on the pile of conflicting information.
“I understand your position, Alberto,” Haynes said. “But there are people here who believe these techniques are necessary to get information out of a few Guantanamo detainees.”
These were some of most dangerous enemies faced by the United States, the worst of the worst. They had been entwined in the 9/11 plot and were privy to al-Qaeda’s designs to kill more innocents. This wasn’t a simple, black-and-white issue, and the administration was doing its best to walk the fine line between respecting their rights and protecting American lives.
“I understand,” Mora replied. “I recognize that the ethical issues here are very difficult.”
He raised the classic “ticking bomb” scenario. What if a captured terrorist knew of an imminent nuclear attack on an American city? What limits should be placed on interrogating him? Mora said he didn’t know.
“If I were the interrogator, I would probably apply the torture myself,” Mora said. “And I would do so with the full knowledge that I could face potentially severe personal consequences.”
But none of that had any bearing on Guantanamo, Mora said. There was no ticking bomb. There was no justification for abandoning America’s cherished laws and values.
“Does the threat of one common criminal against the life of one citizen justify torture or mistreatment?” Mora asked. “If not, how many lives have to be in jeopardy? Where’s the threshold? I just don’t think that that’s something we should be deciding in the Pentagon.”
As Mora pressed his case, Haynes gave him his full attention, but his face was inscrutable. Mora’s frustration got to him.
“Jim, these policies could threaten the secretary’s tenure and could even damage the presidency,” he said. “Protect your client.”
• • •
In a closed session that day, Hans Blix and Mohamed ElBaradei briefed the U.N. Security Council on the weapons inspectors’ progress in Iraq.
The inspections had been under way since late November, and the team had searched a long-suspect presidential palace. In early December, Iraq had issued what it called a complete accounting of its weapons programs. The Americans had dismissed the disclosure as a sham. Iraq, they claimed, was hiding information about nerve gas, anthrax, fuels for ballistic missiles, mobile labs for biological weapons, and its efforts to obtain uranium from Niger—a false allegation that later would be proved to have been based on f
orged documents.
The U.N. inspectors spent several weeks reviewing Iraq’s twelve-thousand-page assessment, and also weren’t happy with what they found.
Blix opened the briefing with a rundown of the inspectors’ recent findings. “If we had found any ‘smoking gun,’ we would have reported it to the Council,” he said. “Similarly, if we had met with a denial of access or other impediment to our inspections, we would have reported it to the Council. We have not submitted any such reports.”
The Iraqi declaration, however, was far from adequate. “It is rich in volume but poor in new information about weapons issues and practically devoid of new evidence on such issues,” he said. Almost all of the supporting documents were nothing more than rehashes of what had been provided to the U.N. during the inspections of the 1990s.
“Iraq must present credible evidence,” he said. “It cannot just maintain that it must be deemed to be without proscribed weapons so long as there is no evidence to the contrary.”
Years later, looking back on the declaration, Blix acknowledged that Iraq had been in a difficult bind.
“It was very hard for them to declare any weapons,” he said, “when they didn’t have any.”
• • •
The next day, Larry Di Rita, a Pentagon spokesman, burst into Haynes’s office with urgent news.
“There was an enema administered to al-Qahtani in his interrogation,” Di Rita said.
“What?”
“They gave al-Qahtani an enema.”
Haynes sat back in his chair. Not good. Using enemas for interrogation, that would be way over the line. He doubted it was true; there were plenty of rumors flying around. Then again, maybe it did happen, maybe there was something to this concept of force drift after all. Whatever the case, jitters were spreading through the Pentagon. They needed to step back and take a closer look at the interrogation policies.
As soon as Di Rita left, Haynes walked down to Rumsfeld’s office.
“Boss, I just received a report that al-Qahtani was given an enema as part of his interrogation,” Haynes said. “We have to stop this and take another look.”
500 Days: Secrets and Lies in the Terror Wars Page 56
