Others showed less restraint. Asked by a reporter for her view, Roselyne Bachelot, the French environment minister, responded, “If you knew what I felt like telling Mr. Rumsfeld . . .”
She stopped herself, saying that the word she had in mind was too offensive.
• • •
Yoo’s draft memo for the Pentagon on interrogations was delivered that same week to Mary Walker, the air-force general counsel. As head of the working group reviewing interrogation policy for Guantanamo, Walker declared that she alone would be allowed to keep a copy of the legal analysis. To ensure the highest level of security, she said, her counterparts at the other military branches would be allowed only to read the document in her office.
Her fellow lawyers grumbled among themselves about her pronouncement. They were supposed to be working together to form policy. The Yoo opinion—and who was this guy John Yoo, anyway?—was going to be the template for everything they did. Forcing them to rely on notes scribbled during a reading session in Walker’s office would crimp their ability to do their job. And the lawyers couldn’t help but wonder—since Jim Haynes had appointed Walker, did that mean he didn’t trust the rest of them either?
Still, Alberto Mora was looking forward to reviewing the memo. The Office of Legal Counsel, he knew, was the most respected group of lawyers in government, composed largely of academics renowned for the brilliance and subtlety of their reasoning. Years before, as general counsel of the United States Information Agency, he had read plenty of OLC memos and unfailingly found them to be models of legal draftsmanship. He was eager to see how attorneys with that level of expertise and knowledge would configure the legal limits for detainee interrogation.
Mora scheduled an appointment to study the Yoo memo in Walker’s office. When he arrived, Walker removed the document from a safe where she kept classified material. Mora sat at a table and started taking notes as he read.
He gave a start. Something was missing. He stopped writing and leafed through the memo, his consternation growing as he flipped each page.
He found references to torture—reference after reference after reference. A law said this about torture, a treaty said that. And that was it.
What’s the boundary where harsh treatment becomes degrading? When did degrading treatment become cruelty? The answers weren’t there! The memo frequently mentioned “the Torture Convention” but even that nickname ignored the international agreement’s wider scope. Its actual name was “the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.” The terms cruelty and degrading treatment were right in the title, but didn’t make it into the analysis.
Mora turned back to the first page and read through the memo again, this time more closely. It wasn’t possible, he thought, that such a core element of the issue had simply been ignored. But it had been.
This memo doesn’t get it, he thought. It can’t reach the right conclusions if it’s not asking the right questions.
Then Mora reached the portion that dealt with the president’s authority in wartime, and what he read struck him as grotesque and dangerous. Yoo’s assertion that the executive’s power was virtually unbounded during war amounted to a declaration that the presidency was a supreme branch of government, beyond the law, beyond the authority of Congress, beyond the review of the courts.
My God. They’re arguing that the president can do whatever he wants.
Walker left her office before Mora finished. He planned to call her as soon as possible so he could let her know that this memo was garbage.
• • •
A chief petty officer at the Pentagon took an elevator down to the main level and found John Yoo waiting. The first meeting of the Detainee Interrogation Working Group was being held on this day, January 23, and Yoo had been invited to give a presentation.
The working group was already reviewing thirty-six aggressive techniques, including sleep deprivation, stress positions, use of phobias, and waterboarding. Before anything was approved, though, the military lawyers wanted to get a better understanding of Yoo’s reasoning and to challenge him on some of his conclusions.
Yoo arrived upstairs to find more than a dozen people waiting in a conference room. Walker introduced him.
“John’s here to discuss his draft memo and then answer whatever questions you have about it,” Walker said. “So, John, go ahead.”
Yoo explained each element of his analysis—the definition of torture, the requirement that an interrogator must intend to cause pain, and the sweeping powers a president was permitted to exercise during wartime.
“Under the conventional doctrine, the president can order that the U.S. violate international law,” he said. “That doesn’t mean it’s legal under international law. It still could be a violation if a country gets harmed or asks for a remedy or whatever compensation it’s seeking. But we do have the right to violate international law.”
Across the table, an army officer with the Judge Advocate General’s Corps shook his head. “No, that’s not true,” he said. “International law binds us.”
Yoo leaned forward. This is going to be like being a law professor again.
“The Constitution creates certain powers and gives them to the president,” he said. “Where does it mention international law binding the constitutional powers of the executive branch?”
“That’s what we always teach to every soldier in basic training, that they are bound by international law.”
“But there’s a landmark case, Paquete Habana v. U.S., that says a president can order actions inconsistent with international law.”
“Well, we have to be bound by international law,” the army officer responded.
“Why?” Yoo asked.
“If we violate international law, the other side is going to violate it, too, in treating our soldiers when they’re captured.”
“Look, if you think al-Qaeda is going to follow any rules of war, that’s nice, but we have no factual evidence that’s true.”
The other issue to consider, Yoo said, was that their objections were about policy, and that wasn’t relevant in a discussion about constitutionality.
Another JAG officer spoke. “This is going to be very bad for the image of the military in other countries.”
Yoo nodded. “That’s a very good point, and it could certainly be valid,” he said. “But again, that doesn’t tell us anything about how to interpret the law.”
The meeting lasted for an hour and a half. The military lawyers raised objection after objection, but Yoo remained unflappable, batting down their arguments as being in the realm of policy, not the law. Then, after Walker thanked Yoo for his input, he headed out.
The meeting was a disaster, Yoo thought. I knew we shouldn’t be doing this with the Pentagon. The use of harsh treatment by soldiers wasn’t going to work. The military was too big, and the resistance to adopting such a policy was going to be too strong.
But he fervently believed that it wasn’t his place to make such an argument to the Defense Department. He was just a lawyer, not a decision maker.
• • •
The next day, Tony Blair sent a confidential note to Bush. The two men were set for another tête-à-tête on Iraq, and the prime minister wanted to do as much spadework as possible. He felt confident, he told his advisors, that he could persuade the president to postpone any invasion until after the Security Council approved a second resolution.
Blair opened his missive with flattery. Bush’s strength, the prime minister wrote, had forced Saddam to allow weapons inspectors into Iraq. But much more needed to take place before gearing up for war.
Public support for military action was essential, Blair wrote, and time was needed to build it. The British people opposed an aggressive Iraq policy; he couldn’t even say that a majority of his own cabinet was in support.
They needed to keep their effort on a multinational track, Blair wrote, but it wasn’t going to be easy.
•
• •
Haynes was doing his best to juggle the wildly divergent opinions coming in about interrogations. Yoo, and, in turn, Walker, were insistent that the military had the authority to conduct aggressive questioning. But Mora was banging the drum that the legal analysis leading to that conclusion was incompetent. Cruelty and degrading treatment had to be defined and contained, he insisted.
He telephoned Alberto Gonzales.
“Al,” Haynes said, “there’s a lot of friction over here about interrogation policy.”
“Well, you’ve got to work it out.”
Thanks so much for your help.
“A lot of the push-back on this is coming from Alberto Mora,” Haynes said. “He is strongly disagreeing with John Yoo on this.”
There are always going to be disagreements about legal interpretations, Gonzales replied, even when they come out of the Department of Justice.
“But at the end of the day, somebody’s got to make the final call on the legality,” he said. “And it’s not Alberto Mora. It’s the DOJ.”
• • •
At a BBC television studio in London, the sounds of a brassy orchestral piece faded and a camera crane swung over David Frost. The British talk-show host was seated on an overstuffed armchair, with Tony Blair perched on a couch beside him. It was January 24, and Blair had decided to appear on a Sunday-morning program—BBC Breakfast with Frost—to again make his case on Iraq to the British people.
Frost looked into the camera lens. “And now the news is that the prime minister’s here. Good morning, Prime Minister.”
“Good morning, David,” Blair responded with a smile.
Straight to Iraq. Hans Blix would be presenting a new report to the U.N. the next day, Frost said. If the weapons inspectors hadn’t been able to complete their work yet, would they be allowed to keep searching?
“They’ve got to be given the time to do the job,” Blair said. “But it’s important to define what the job is, because this is where I think a lot of the confusion comes in.”
The inspectors were charged with certifying whether Saddam was cooperating, and that meant more than just granting access to sites, Blair said. Saddam had to say where the weapons material was hidden, show it to the inspectors, and then destroy it.
“So, we would give him extra time—Hans Blix?”
“We’ve gone down the U.N. route precisely because the inspectors have got to be the means of trying to resolve this peacefully. If the inspectors are able to do their job, fine. But if they’re not able to do their job, then we have to disarm Saddam by force.”
His talking point out of the way, Blair returned to Frost’s question. Blix’s team should be allowed whatever time it needed, he said, but Saddam had to cooperate by revealing everything.
“What we know is that he has this material,” Blair said. “We know there is something like three hundred and fifty tons of chemical warfare agent. We know that there is something like thirty thousand special munitions for the delivery of chemical and biological weapons.”
What’s more, Saddam was engaged in a deadly game of hide-and-seek, moving his illegal weaponry to different parts of the country in an elaborate scheme of concealment.
With the U.N. weapons inspectors playing such a critical role in the decision for military action, Frost asked, would the British government need, require, or prefer a second resolution on Iraq?
“Of course we want a second resolution,” Blair replied. Without one, he said, Britain would take military action only under two conditions.
“That is the circumstance where the U.N. inspectors say he’s not cooperating and he’s in breach of the resolution that was passed in November,” Blair said, followed by a U.N. failure to act “because someone, say, unreasonably exercises their veto and blocks the resolution.”
• • •
As he spoke, the prime minister was engaged in a complex balancing act—or, more accurately, was deceiving the world. For just ten days earlier, Blair had received an analysis from his attorney general declaring that the very policy he was now advancing was, in fact, illegal.
In the confidential memo, the attorney general, Peter Goldsmith, wrote that Britain was very limited in what actions it could legally take regarding Iraq. Unless the U.N. adopted a second resolution to authorize a military campaign, Britain could deploy troops only for self-defense or as a humanitarian intervention—and neither condition applied here. He was, Goldsmith wrote, “ruling out the use of force without a further decision of the Council.”
Some members of the Blair government had suggested the U.N. could be ignored if one of the permanent members of the Council “unreasonably” vetoed a second resolution. But, Goldsmith wrote, the international organization’s charter did not support that supposition.
“In these circumstances, I do not believe there is room for arguing that a condition of reasonableness can be implied as a precondition for the lawful exercise of a veto,” Goldsmith wrote.
The attorney general’s analysis was a bitter secret, one Blair was unwilling to share even with Bush. How could he tell the president that, despite their months of planning, Britain might not join the United States in a war against Iraq?
• • •
The next day in Manhattan, the Security Council chamber was packed with delegates, reporters, and other observers. The anticipation was almost palpable as the crowd awaited the latest report from the Iraqi weapons inspectors.
Representatives from the fifteen state members of the Council found their seats at the horseshoe-shaped mahogany table. Blix and ElBaradei from the International Atomic Energy Agency were at the side of the room, waiting to be invited to make their presentations.
Blix spoke first. “Iraq has not come to a genuine acceptance—not even today—of the disarmament which has been demanded of it and which it needs to carry out to win the confidence of the world and to live in peace,” he said.
Iraq had cooperated on the process of the undertaking, Blix said, granting access to all sites the inspectors wanted to see. Even so, problems remained—the Iraqis refused to guarantee the safety of a U-2 plane that the inspectors wanted to use for aerial imagery and surveillance, for example. And there had been instances where inspectors were harassed.
Substance was another matter, Blix said. Iraq was not providing active assistance but simply allowing the inspectors to look around. “It is not enough to open doors,” he said. “Inspection is not a game of ‘catch as catch can.’ ”
There was evidence that the Iraqis possessed a weaponized version of a toxic nerve agent known as VX. Also, records indicated that Iraq had produced more anthrax than it had disclosed, and officials provided no convincing proof that the biological agent had been destroyed. There was more: Baghdad maintained that its missiles could fly no farther than the 150-kilometer limit imposed by its disarmament agreements, but the inspectors were skeptical.
“Our Iraqi counterparts are fond of saying that there are no proscribed items and if no evidence is presented to the contrary, they should have the benefit of the doubt, be presumed innocent,” Blix said. “Presumptions do not solve the problem.”
Then, ElBaradei. His take on Iraq’s nuclear capabilities was far more upbeat.
“We have to date found no evidence that Iraq has revived its nuclear weapons program since the elimination of that program in the 1990s,” he said.
The lack of substantiation, of course, wasn’t enough to give Iraq a clean bill of health. But, with the verification system that had just been put in place, a final verdict would be possible.
“We should be able within the next few months to provide credible assurance that Iraq has no nuclear weapons programs,” ElBaradei said. “These few months would be a valuable investment in peace because they could help us to avoid a war.”
Time. All they needed was more time.
• • •
“The start date for the military campaign is penciled in for March 10,” Bush said. “That’s when we
’re planning to get going with the bombing.”
It was five days later, January 31. Bush and Blair were meeting in the Oval Office for another review of the strategy for Iraq. Joining Bush in the American contingent were Andy Card, Condoleezza Rice, and Dan Fried, one of her senior assistants. Blair was aided by Jonathan Powell, his chief of staff; David Manning, his foreign policy advisor; and Matthew Rycroft, his private secretary.
Blair was, once again, urging Bush to join him in pushing for a second U.N. resolution. He was trying not to sound desperate, but couldn’t bring himself to reveal the terrible truth that if America chose to attack without U.N. support, the British might have to stay on the sidelines.
Bush wasn’t buying that the U.N. was important. “We’re going to put everything we can into getting a new resolution,” he said. “We’ll twist some arms and even threaten if we have to. But, I’ve got to say, if we fail, we’re going to take military action anyway.”
The air campaign would probably last four days, Bush said, demolishing as many as 1,500 targets. “We’re going to be very careful to avoid hitting innocent civilians,” he said. “But I don’t think there’s going to be much danger for them for too long. The bombing is going to ensure a quick collapse of Saddam’s regime. It’s going to destroy his ‘command and control’ very quickly. The army’s going to fold.”
The military timetable was tight, Bush said, so they could give the Security Council only a short time for a second resolution.
Blair nodded. “It’s essential for us both to lobby for the second resolution,” he said. “It would give us an insurance policy against the unexpected.”
And they had to recognize that there were plenty of unknowns. “If anything went wrong with the military campaign,” Blair said, “or if Saddam increased the stakes by burning oil wells, or killing children, or fomenting internal divisions within Iraq, a second resolution would give us international cover, especially with the Arabs.”
It was important, though, for the wording of the resolution to be tough. “I think we should make it clear that it amounts to Saddam’s last opportunity to comply,” he said. “We have been very patient. Now we should be saying that the crisis must be resolved in weeks, not months.”
500 Days: Secrets and Lies in the Terror Wars Page 59
