Mastermind

by Richard Miniter

  Osama bin Laden has weighed in with a threat to kill more Americans if KSM is executed.25 The archterrorist didn’t make a distinction between an execution following a civilian trial and one resulting from a military commission. Nor did he get into whether waterboarding was torture or not.

  These debates absorb America and her allies—but not Al Qaeda. It is too busy planning the next attack.

  It is a strange feature of contemporary American politics that the evidence of KSM’s crimes is clear, but the details of his confessions are not.

  It is admittedly hard to independently evaluate the effectiveness of the CIA program. I have spoken to a number of government officials who interrogated KSM or who were responsible for evaluating the results of those interrogations. No two accounts agree.

  There are several reasons for this. For one, the FBI and the CIA have different approaches to interrogation and color their accounts to vindicate their agencies’ cultural preferences. More important, following the 2006 elections, which handed control of the U.S. Congress to the Democratic party, and the 2008 presidential election of President Barack Obama, career intelligence officials feared that they would face criminal prosecution for the conduct of those interrogations. Thus, every account seems to be sloped to avoid legal liability or endangering a career.

  While it may seem like an overreaction to an outsider, the spy agency’s internal culture has a long memory. Many of the CIA’s senior managers began their careers just as the CIA received its first serious political attack.

  America’s intelligence agencies (especially the CIA) have yet to recover as institutions from the hearings launched by Senator Frank Church in the mid-1970s and the actions taken by President Carter’s CIA director, Stansfield Turner.

  A liberal Democrat from Idaho, Church was a self-proclaimed “dove” who opposed the Vietnam War. When the war ended with U.S. withdrawal in 1973 and the invasion of South Vietnam in 1975, Church set his sights on the CIA. As chairman of the Senate Foreign Relations Committee from 1976 to 1981, Church held a series of hearings, treating the CIA as if it were an ongoing criminal enterprise that routinely violated the constitutional rights of Americans at home and foreign nationals abroad in the name of a “paranoid” anticommunism.

  The effect on the culture of the CIA was devastating. Since its creation in the 1940s, the clandestine service had always been treated with respect, even reverence. Now some senators saw it as run by potentially mentally unstable people engaged in a pointless anticommunist crusade. The stab of betrayal was immediate and deep. Those who didn’t find their careers ruined, retired. The remainder vowed to take no risks.

  Even the definition of risk changed. Formerly, a risk was defined as being caught by a foreign government; now it was defined as being caught by your own.

  The next body blow came from inside the CIA. In 1978, Admiral Turner, as CIA director, gutted the agency’s directorate of operations, firing more than eight hundred veteran operators. These were the people the public thinks of as spies, people who developed personal networks of sources in foreign lands and collected secret documents.

  Instead Turner wanted to replace so-called human intelligence (known inside the agency as HUMINT) with signals intelligence and technical intelligence (known as SIGINT and TECHINT). This move touched off a thirty-year trend inside the intelligence community that preferred spy satellites and phone intercepts over tips and documents from well-placed sources. As a result, the agency became very good at photographing the tops of people’s heads and very poor at understanding what was going on inside those heads.

  In fact, it wasn’t the intelligence community that was paranoid, but its critics. They believed that the CIA, the FBI, and other agencies were run by lawless thugs who would use any pretext, or none at all, to peer into the private lives of others.

  Nevertheless, the legal landscape changed. Senator Church sponsored and Director Turner supported the Foreign Intelligence Surveillance Act of 1978, which required American intelligence investigators to receive a warrant from a special “FISA” court in order to listen in on the phone calls of anyone inside the United States—including officials of foreign governments or other foreign nationals. Other 1970s-era restrictions made it essentially illegal to bribe foreign government officials for information or to subject foreign nationals to adverse treatment in the hopes of gleaning valuable intelligence.

  Thus, an intelligence culture of risk aversion and a welter of restrictive new laws set the stage for the intelligence failures in the run-up to the September 11 attacks and the political debate that raged throughout the Bush years.

  This history shaped the internal debates over what to do with KSM and other “high-value” detainees. Outside the intelligence community, both President Bush’s domestic critics and Al Qaeda detainees knew this history—and how to manipulate it.

  Under a tropical night sky, KSM was led in shackles down the ramp of an American military cargo plane. The tarmac was hot and stank of diesel fuel. It was September 2006 and he had just arrived at Guantánamo. He and several other detainees were herded to a staging area just off the runway.

  Next, a U.S. Navy vehicle took KSM to a small boat to ferry him across a choppy tidal bay to an American prison built on an old golf course. KSM was destined for Camp 7, the most restrictive. His biggest battle was about to begin.

  Days later, to thunderous applause, President Bush walked rapidly through the door of the White House’s East Room and climbed onto a small temporary stage. It was September 6, 2006, and the president was about to make a surprising announcement about KSM.

  The East Room is usually reserved for state dinners, signing ceremonies, and other momentous events. It is known for its formal elegance. Gilbert Stuart’s famous 1797 portrait of George Washington, which was rescued just as British troops burned the White House, hangs prominently over a red marble mantel. The windows are hung with long, custom-made gold silk drapes, specially designed under Laura Bush’s direction.

  As the television cameras zoomed in, President Bush announced that every high-level Al Qaeda leader in custody, including KSM, had recently been transferred to an American prison facility in Guantánamo. Al Qaeda’s captive leaders were now held in public view, where reporters, lawmakers, and lawyers could contact them. A new front in the war on terror had opened.

  President Bush’s speech—and the major policy change it signaled—had been secretly in the works for months.

  By the spring of 2006, senior Bush administration officials had realized that they could not continue with the current CIA interrogation program without exposing the president to political risk and CIA officials to legal jeopardy.

  In Congress, Senator John McCain had shamelessly used his own experiences of severe torture in a North Vietnamese prison to push the Detainee Treatment Act of 2005. Senator McCain knew he had the major television networks and the editorial pages of The New York Times and The Washington Post at his back when he confronted President Bush, the man who had defeated him in his quest for the Republican nomination for president in 2000. Whether motivated by high ideals or bitter revenge, it didn’t matter. The Detainee Treatment Act attracted crowds of Republicans in both houses of Congress. McCain’s law made it virtually impossible for President Bush to hold KSM and other high-value detainees incommunicado in secret locations. Instead KSM and other detainees would win many of the rights of prisoners of war, including visits by the Red Cross and the right to send and receive letters from family members. Virtually all “enhanced interrogation techniques,” including waterboarding, were essentially outlawed.

  Once the act passed Congress, CIA Director Porter Goss informed the White House that he was stopping all interrogations of high-value prisoners including KSM. The CIA director didn’t believe that his officers had “adequate legal protection.”26

  History played a silent part in Goss’s decision. He had served in the CIA in the early 1970s and knew several CIA officers whose careers were sidelined by Senator Ch
urch. He wasn’t going to let himself or his agency fall into the hands of Senator McCain.

  Meanwhile, the United States Supreme Court was also limiting the president’s options. In June 2006, the high court had handed down its decision, in Hamdan v. Rumsfeld, requiring the president to win congressional approval before trying Al Qaeda detainees before military commissions. To secure congressional support, the president would have to press his case before the press and the public. In short, Congress and the Supreme Court had forced the president’s hand. The secret CIA program would have to end.

  The new CIA director, Mike Hayden, was in the midst of a grueling internal review to design interrogation techniques in compliance with the 2005 Detainee Treatment Act when the 2006 Supreme Court decision forced the spy agency to put those efforts on hold. Clearly there was nothing the CIA could do until Congress adopted new legislation. Questioning high-value detainees had been suspended since the middle of 2005. There was no hope of restarting them now.

  Inside the Bush administration, a high-octane debate flared. Every agency involved brought its own lawyers and its own legal opinions. No one knew who was right and who was wrong, because they were now in uncharted constitutional territory. From the time of George Washington until 2005, there were essentially no limits on the president’s ability to hold and question enemy prisoners, except for the gentlemanly “laws of war” and the treaty obligations under the various Geneva Conventions. Since neither Al Qaeda nor Afghanistan was a signatory to the Geneva Conventions, and violated them at every opportunity, some administration officials contended that the conventions did not limit the president’s constitutional authority in this case. Others pointed out that Congress had just limited the president’s powers to hold and question prisoners. The Supreme Court, after Hamdan v. Rumsfeld, was unlikely to support the view that Congress’s encroachment on the president’s prerogatives was unconstitutional. A solution had to be found that would maximize the CIA’s ability to extract lifesaving information from Al Qaeda detainees within the confines outlined by Congress and the Supreme Court.

  CIA Director Hayden was eager to transfer all of the detainees out of CIA custody and into the hands of the U.S. Navy. He was shrewdly shifting responsibility from his agency to the Department of Defense. When Defense officials objected, insisting that the CIA could still produce vital information from those detainees, Hayden was ready with his counterblast: “The intelligence value is never zero. But I’m willing to concede that the intelligence value of the remaining people in our custody is such we no longer need to hold them in these circumstances. So let’s move them on.”27

  Secretary of State Condoleezza Rice agreed with Hayden. She knew that the CIA’s secret prisons were becoming a major impediment to U.S. diplomatic efforts with its Western European allies and were hurting public perception of America around the world. Then she made a moral argument—and a prudent political one. She stressed that, for the 9/11 families and for the nation, KSM and the other terrorists responsible for the 9/11 attacks needed to be brought before the bar of justice and held accountable for their crimes. She also realized that the legacy of presidents is determined not just by their actions but by the actions of the presidents who follow them. “Sooner or later there was going to be a new president and you don’t want to have a new president suddenly lift the lid and say, ‘Ooh, what have we in here,’” she said.28 In short, they needed to develop a policy that would make it difficult for the next president to prosecute either CIA officers or senior Bush administration officials. Rice’s insight caught the attention of everyone in the room.

  The debate about defending the CIA’s interrogation was over. Senior officials had given up trying to save the current CIA interrogation program—they were now trying to save themselves.

  By July 2006, President Bush agreed with CIA Director Hayden’s plan of “disclosing the program in order to save it.”29

  Throughout the summer, in a series of meetings between President Bush, Secretary of State Rice, CIA Director Hayden, Defense Secretary Donald Rumsfeld, and others, the president decided that all prisoners (including KSM) currently held in secret prisons around the world would be transferred to Guantánamo before any public announcement was made. The president and other officials feared that announcing any transfer in advance would invite Al Qaeda attacks designed to rescue the prisoners.

  As the Labor Day weekend approached, the president and his senior advisers were still debating how much of the CIA’s secret interrogation program should be made public. The concern was that waterboarding and other techniques would be labeled torture. With his characteristic directness, the president brought the debate to a halt: “You know, if anyone asks me ‘did you water board KSM?’ you know what I’ll say? Damn right.”30

  The Camp 7 guards looked at the passes proffered by the men in suits from Washington, D.C., and waved them in. Drawn from several agencies, including the FBI and the Department of Justice, these men were the “clean team.” Their job, which would take them more than a week, was to question KSM without using any coercive techniques that might taint his testimony. The government lawyers would have to persuade KSM to admit to everything that he had said in the previous three years without once directly referring to his prior admissions. They had to act as if they were friendly observers who knew nothing about KSM’s confessions to the CIA. It was part of a deliberate legal strategy.

  Their aim was to get a complete record of KSM’s crimes that could be presented in court, either civilian or military, without giving defense attorneys an opening to have KSM’s admissions excluded on the legal grounds that they were improperly obtained (i.e., the result of “torture”).

  The clean team was in for two surprises. The first was KSM himself. He freely admitted that he had planned and supervised the 9/11 attacks and was responsible for at least thirty acts of actual or attempted mass murder. He was proud of his crimes.

  The second surprise would take a few years to emerge. Nothing the clean team accomplished would stop KSM or any of his various advocates from claiming that his testimony should be thrown out on the grounds that it was wrung out of him by torture. In a better world, the clean-team effort would have been seen as a good-faith attempt to present and preserve evidence for timely administration of justice. Instead, it was a waste of time.

  The U.S. Navy facility at Guantánamo Bay is not the gulag that some imagine. Detainees are entitled to eight hours of uninterrupted sleep every day and cannot be woken up for questioning. They are served three halal meals per day and their guards eat the very same food. Nor are the detainees starved. They receive more than three thousand calories of food per day. They are free to pray five times a day, without interruption, and may set their own prayer schedule. As a result, there are almost as many prayer schedules as there are prisoners. This is no accident; it allows detainees to confuse or fool their guards. And, of course, the timing of daily prayers is often changed, sometimes every other day. In practice, prayers are used as a “get out of jail free” card to get a detainee out of any activity he doesn’t like—including questioning by intelligence officials.

  Every detainee is entitled to a minimum of two hours of outdoor recreation per day, with the U.S. government supplying shoes for basketball, soccer, and volleyball. If they are injured playing soccer, U.S. Navy doctors treat them free of charge.

  Detainees receive better treatment than American citizens convicted of crimes in the United States. At Guantánamo, doctors and dentists performed almost a hundred surgeries and five thousand dental operations between 2002 and 2006. A hundred and seventy-four pairs of eyeglasses were passed out in the same period. At least twenty-two detainees have prosthetic limbs supplied to them by the U.S. Navy.31

  Interviews with detainees do not involve the rubber hose or even the “third degree.” Sessions are limited to four hours and usually run less than half that. Usually, interviews are interrupted by prayers, often at the spontaneous suggestion of the detainee.

 
; As a result, interrogators are often forced to act like a kindergarten teacher trying to coax her reluctant pupils. One interrogator baked cookies for her detainees, while another bribed them with sandwiches from Subway and McDonald’s. Both fast-food franchises are available on base. Filet-O-Fish is an Al Qaeda favorite, one Guantánamo interrogator told me.32

  But while the detainees are treated well, the guards are not. Between July 2005 and August 2006, there was an average of 8.8 attacks on the guards per day. Almost anything can be sharpened or shaped into a weapon. Springs were taken from the insides of faucets and rubbed on concrete to make knifelike blades. Ceiling-fan blades have been smashed and fashioned into impromptu swords. Detainees even use broken fluorescent light tubes as daggers. Rear Admiral Harry B. Harris Jr., who commanded the Guantánamo facility in 2006, told me: “These folks are McGyvers.”

  The Combatant Status Review Tribunal met in a temporary building roughly the size of a double-wide trailer, ringed by chain-link fences and topped with razor wire. The meeting was a hearing to determine whether KSM should be officially classified as an “enemy combatant.” It was March 10, 2007, and KSM was just beginning to turn America’s legal procedures into a propaganda theater.

  When KSM was called to address the tribunal, he alternately spoke in broken English and accented Arabic. He confessed to masterminding the 9/11 attacks as well as thirty other terror plots. He clearly wanted the credit.

  The Department of Defense’s official finding, issued on August 9, was hardly a surprise. KSM was now officially an “enemy combatant” of the United States. That was but step one in a long process mandated by Congress. If anything, KSM was pleased. He would have years to torment Americans using their bizarre legal process.

  By June 5, 2008, it was clear that holding KSM accountable for the murder of three thousand people on September 11 was taking longer than the plot itself. He had been formally charged in February 2008 with carrying out the attacks, but legal delays and procedural questions were continuing to slow the process.