The Black Banners

by Soufan, Ali H.

  On December 2, 2002, Secretary Rumsfeld signed the recommendation, adding a handwritten note at the bottom of the page regarding limits on the use of stress positions: “I stand for 8–10 hours a day. Why is standing limited to 4 hours?”

  While Secretary Rumsfeld only officially approved the techniques on December 2, some were already being introduced in early October, after the Bush administration lawyers and the CIA’s CTC general counsel left the base. Dogs were used to intimidate Qahtani and he was put into stress positions. Later a host of much more aggressive techniques were used on him over a period of three months. These included, according to the Senate Committee, being stripped naked and “made to wear a leash and perform dog tricks.”

  When Mark Fallon was shown the proposed interrogation plan for Qahtani by members of the military command at Gitmo, he said that it was “illegal” and that he would recommend that CITF members be barred from taking part in the interrogations.

  “It can’t be illegal, the secretary of defense authorized it,” was the reply.

  “The secretary of defense doesn’t have the ability to change the law. He can’t determine what is legal and illegal.”

  Fallon’s boss, Brittain Mallow, initially disagreed with him: while he was completely opposed to the techniques, he thought that CITF agents could go in as observers and temper what the military interrogators did. Fallon’s response was unequivocal: “It will put agents in a bad position. Either they’ll watch the law being broken, or, as sworn law enforcement officers, seeing laws being broken, they may try to arrest the military interrogators. Nothing good can come of this.”

  Mark Fallon, a New Jersey native from a family of law enforcement officials, found himself in a position he had warned his staff members about during their orientation. “Even if I give you an illegal order,” he told them, “you can’t follow it. You are bound by the Constitution. Remember that at Nuremberg we prosecuted Nazis who claimed just to be following orders. And remember in the United States there are no secrets, only delayed disclosures. One day, whether one year away or ten years away, people will be looking at what we did, so make sure you act with the utmost integrity.” He told Mallow that he would resign from CITF and from the government, if necessary, if Mallow authorized CITF agents to sit in on harsh interrogations. Mallow saw the wisdom in Fallon’s logic and ordered CITF personnel not to take part in any interrogation in which harsh techniques were being used. This angered General Miller, who lambasted the CITF commanders: “You either are with us or you are against us, and your guys are out.”

  Like Fallon, NCIS chief psychologist Mike Gelles objected to what the military interrogators were doing, and together they went to see NCIS director David Brant. He agreed with them and they spoke to Alberto J. Mora, the navy’s general counsel. Mora told them: “I don’t understand how they can be doing these things. You guys are the ones with the interrogation experience. I suggest you go back to Gitmo and try talking to General Miller.”

  Fallon and Gelles flew to Gitmo to see General Miller and again explained their objections. Based on their experience dealing with terrorists, they told him, these techniques didn’t get results. Furthermore, they were illegal under U.S. law. Miller dismissed them: “You have got to put on the same jersey if you want to be on the team.”

  “Listen, General,” Fallon replied, “we don’t work for you. We’ve got a separate chain of command. We’re not going to participate and will continue to oppose these techniques.”

  When Mora learned of the conversation, he contacted Jim Haynes a few times to object to the use of the techniques. At one point, the Senate report states, he told Haynes that he thought the techniques authorized by Rumsfeld “could rise to the level of torture.” Haynes ignored Mora’s warnings.

  Having failed to get Haynes or his superiors in the Pentagon to listen, on January 15, 2003, Mora drafted a memo saying that the techniques were clearly illegal and sent it to Haynes, warning him that he’d sign the memo by the end of the day unless the use of the techniques ended. A senior administration lawyer calling what the administration was doing “illegal” would cause serious problems; Rumsfeld, later that day, signed an order rescinding his approval of the techniques.

  Mora’s victory was short-lived, however. In March 2003, Rumsfeld secretly reauthorized twenty-four techniques, at which point Mora had left the navy for private practice.

  The Pentagon, at the time of this back-and-forth, declared that Qahtani’s questioning was “worthwhile,” and a spokesman from the Defense Department said that he was “a valuable source of information.” Unnamed Bush administration officials told reporters that his interrogation provided information about planned attacks and the financial networks used by terrorists.

  Later, when the techniques were no longer being used, I was asked to go back to interrogate Qahtani because basic information was still missing. Despite claims of success, not only did those employing the harsh techniques not get any valuable information, they hadn’t even managed to get the basic stuff.

  I spoke to Qahtani and he gave me details we wanted about his training and his interactions with KSM and other plotters, among other information. He told me about his difficulties in learning English phrases and using e-mail, and KSM’s frustrations, and told me that when Mustafa al-Hawsawi was training him, he would go to the beach at sunset to pray.

  “What did you pray about?” I asked.

  “I asked God to give me a sign showing whether he agreed with my mission. I told him if he agreed with my mission then he should facilitate my trip. If he didn’t, then he should stop it.”

  Contrary to Bush administration claims about Qahtani’s importance, nothing gained from Qahtani while he was subjected to the coercive techniques could have saved a single life. The 9/11 Commission concluded that he was a “muscle hijacker,” as we had predicted from the start. To date, Qahtani has not been charged for his role in 9/11. All previous charges against him have been dropped. That he was subjected to the use of harsh techniques makes any trial legally difficult. As we warned when the techniques were being introduced, not only are they unreliable, ineffective, and un-American, they also ignore our long-term goals and make prosecution unlikely.

  When the Department of Justice’s inspector general investigated detainee abuse and asked Qahtani about me, he complained that I had put him in the brig and let no one else see him, but he said I had “some sense of humanity.” The IG noted that the logs showed that I wasn’t the only person who saw Qahtani; other agents saw him, including members of the FBI’s Behavioral Analysis Unit.

  Agents reading the report told me that it seemed as if the IG were almost trying to get Qahtani to say something negative about me. And Qahtani had reason to hate me: I was the face that he associated with his having been identified and taken from the general population—but I had “some sense of humanity.” What was strange, however, was that the IG only asked Qahtani, the would-be twentieth hijacker, about me, and never asked for my version of what had happened. Perhaps because Qahtani didn’t say anything negative, the IG didn’t feel he needed to.

  While Secretary Rumsfeld and members of his team such as Haynes, Wolfowitz, and Feith were busy approving the use of these techniques, they were also getting in the way of successful interrogations. FBI and CITF investigators identified detainee No. 37 as a Yemeni al-Qaeda operative called al-Batar, based on information and a description I had gotten from Abu Jandal. Batar was the person to whom Abu Jandal had delivered money—the sum turned out to be five thousand dollars—to procure a Yemeni wife for bin Laden. As Abu Jandal had told me, he went into the errand thinking that the money was for a mission. At the airport in Sanaa, he was met by Nibras, one of the Cole suicide bombers, and Batar, and together the three men went to the al-Jazeera Hotel. There Abu Jandal gave the five thousand dollars to Batar, who thanked him and told him that the money was for a dowry. Disillusioned and chagrined, Abu Jandal returned to Afghanistan shortly after.

  Given his connecti
on to bin Laden’s Yemeni wife, I thought that Batar would be especially valuable in tracking down the al-Qaeda leader. After I had introduced myself to Batar, he said to me, “So you’re the FBI agent Ali?”

  “Yes.”

  “Saqr told me about you,” he said, referring to Hamdan by his alias.

  “What did he say?”

  “He told me that originally he wouldn’t cooperate, but he met you, and said you are trustworthy and said he cooperated with you.”

  “That’s true.”

  “Saqr told me he releases me from my oath so that I can speak to you.”

  “What was the oath?”

  “When we were captured, we both swore to each other that whatever happened in interrogations, we would never admit to knowing each other.” (Hamdan had kept that oath, as he had never mentioned Batar’s name to me.)

  “And?”

  “Hamdan told me that you treated him well, and were honest, and let him check on his family to see that they were okay.”

  “I did.”

  “Hamdan told me he thought it was in our interest to cooperate. And so we canceled the oath.”

  “Great,” I said. “Let’s start with your background.”

  “I’ll tell you everything, but I would also like to check that my family is okay.”

  “We can arrange that.”

  “What I’ll do is that I’ll tell you half my story. From what Hamdan told me, you know al-Qaeda well and will know whether I’m telling the truth. And then I will tell you the other half after I make a phone call.”

  I spoke to the FBI and the CITF commanders. They agreed that it made sense to let Batar make a call and said they’d get permission from General Miller. (Miller had instructed that any calls had to have prior approval from him.) I returned to Batar and told him he had a deal.

  He admitted, for the first time, his true identity, and detailed his background, his path to al-Qaeda, and his connection to bin Laden. The investigators had recovered a document that appeared to be a handwritten martyrdom letter, signed by “Al-Battar,” which he admitted was his. As promised, he was cooperating.

  In the meantime, the CITF and FBI commanders had put through a request for permission from General Miller to make the call. He responded: “No prisoner can make a phone call without approval from Paul Wolfowitz,” Rumsfeld’s deputy secretary of defense. The commanders argued that there was a precedent in Hamdan; in that case, approval had come from General Dunlavey.

  The approval never came, and we never heard the second half of Batar’s confession. We could have learned important information about bin Laden’s Yemeni wife, which would have helped us track bin Laden and others. When bin Laden was finally tracked down and killed, in May 2011, his Yemeni wife was among those with him. Who knows how much more quickly we could have gotten to bin Laden and what lives could have been saved?

  While General Miller wouldn’t approve a phone call, he had no qualms about employing harsh interrogation techniques on Qahtani without proper formal approval from the secretary of defense. The same is true of his bosses: they wouldn’t let a detainee use a phone for a minute, which would have led to bin Laden, but they didn’t mind disregarding the U.S. Constitution.

  “Ali, you’re heading to Gitmo, right?” asked a member of the 9/11 Team. It was August 2002, and I was leaving headquarters, preparing to head back to interrogate Hamdan further.

  “Yes, I’m leaving shortly.”

  “While you’re there, will you take a look at prisoner No. 39?”

  “Sure, who is that?”

  “His name is Ali Hamza Ahmed Suleiman al-Bahlul.”

  “What has he done?”

  “We don’t know. In fact, we don’t know anything about him. He’s been in Gitmo for several months, and, according to the military, he’s fully cooperative. They do not believe he is a member of Al-Qaeda.”

  “But?”

  “But we recovered, in Afghanistan, a phone book with the names and numbers of al-Qaeda operatives. Its contents range from the contact details of the terrorists involved in the USS Cole bombing, such as Quso and Nibras, to the address and phone number in Malaysia where the 9/11 planning summit was held. It’s probable that whoever had access to the phone book knew about 9/11 and was a central figure in al-Qaeda. After it was tested for fingerprints, one got a positive hit: Bahlul.

  “There’s one more thing about Bahlul,” the agent continued, “that makes us suspicious about him. He was picked up with the dirty thirty.”

  “Can I see the phone book?” I asked.

  “Sure,” the agent said, and handed me a copy. It was filled with the numbers of high-level operatives, including Khallad, identified by his alias Silver.

  “Where did this book come from?”

  “It was found in the car Hamdan was driving when he was arrested.”

  “And Bahlul’s fingerprints?”

  “They appear on pages eight and nine, so he had access to it. My gut feeling is that this person is important in al-Qaeda.”

  “I think you’re right. I’ll speak to him at Gitmo and see what I make of him.”

  Also found in Hamdan’s car were two SAM-7 missile launchers, along with cards detailing numerical codes used internally to refer to al-Qaeda members, entities, locations, and specific tactical words: bin Laden was 4; Zawahiri, 22; Saif al-Adel, 11; and KSM, 10. The military command was 33; the al-Banshiri camp, 31; bin Laden’s bodyguards, 47. Number 77 referred to families; 115, to chemicals; 129, to an ambush; 100, to a tank; 67, to food. Different locations at which fighters were based also had numbers: 108, for example, meant “in town.”

  When I arrived back at Guantánamo I requested access to Bahlul from the military, but the interrogators who had been handling him refused. He had been put in a restricted-access location, as he was deemed to be cooperating. The military interrogators explained that he had told them everything he knew, and that any questioning “by you guys from the FBI” was “unnecessary.”

  I talked to General Dunlavey about the phone book and the fingerprints. “I believe he’s been lying to the interrogators.” He agreed to grant me access, and I was given Bahlul’s file. I saw that he had been in Gitmo for almost eight months and had been telling the same story consistently: he had been in Afghanistan teaching the Quran and knew nothing about al-Qaeda. It was the cover story that the rest of the dirty thirty had given. Otherwise, the file revealed little about Bahlul.

  I was sure that during the previous eight months Bahlul had learned how standard military interrogations worked. I wanted to deliver the message that this interrogation was different, and I wanted him to arrive at different conclusions concerning who I was, why I was there, and what I knew.

  The first thing I did was change the interrogation setting. Bahlul had been questioned in a standard room and kept cuffed. We took him to a room designed to look like a small living room, which we furnished with couches, a carpet, a coffee table, and pictures. Matt, the CIA chief, helped us obtain the location and set it up.

  When Bahlul was brought into the room, I was sitting on a chair next to the coffee table, waiting for him. He was wearing an inmate’s orange jumpsuit, and both his arms and legs were shackled, but he had a confident, bored look, as if to say, Here’s yet another interrogator who I’m going to have to run through the same issues with. Once he was unshackled, he sat down on the couch, across the coffee table.

  I asked him how he was being treated. “Acceptable.” He went on to say that, while there were some instances where the Quran was desecrated “at the beginning,” he felt that they had been dealt with. “Overall, the treatment has been good, and as Muslims, we have to acknowledge justice.”

  We started talking to Bahlul about his family and the place he was from in Yemen. I had spent a good deal of time in Yemen investigating the USS Cole bombing, and I surprised Bahlul with my knowledge of the land, people, and culture. “You know more about Yemen than the others did,” he told me.

  Next I asked him w
hat had made him go to Afghanistan. He gave what appeared to be his stock answer, that he had gone to help people learn the Quran. He said that he had no interest in al-Qaeda or jihad, and that he had gone solely for religious reasons. He also insisted that he hadn’t met any Arabs fighters there, and that he had spent all his time with poor Afghanis who needed religious instruction. We discussed his impressions of the country.

  “What do you think of Osama bin Laden’s fatwa to expel the infidel Americans from Muslim lands?” I asked.

  “I don’t believe in that fatwa, and there are religious scholars in Saudi Arabia who ruled that America’s presence was not an occupation but legitimate assistance, as it had been requested by the king of Saudi Arabia.”

  I played devil’s advocate and gave al-Qaeda’s justifications for jihad in response. He countered them and we had a debate. That Bahlul was so familiar with arguments that countered al-Qaeda’s arguments was a sign that he was familiar with al-Qaeda’s arguments as well. When I kept responding with more of al-Qaeda’s arguments, he continued to respond with religious ideas that contradicted them, but slowly his arguments got weaker and he seemed less sure of himself. It was clear to me that he was repeating things that he had been practicing to say if captured, not saying things he passionately believed in.

  “Where is your family now?” I asked, switching topics. “Have you heard from them recently?”

  “I don’t know, but I hope that they made it home safely.” I asked this to see whether he had taken his family with him to Afghanistan, following bin Laden’s declaration that it was a religious duty for devout Muslims. The indication that they had been in Afghanistan was a sign that he was likely a member of al-Qaeda. Why else would people take their families to a war zone?

  After a while I stopped taking notes, even though I was still asking questions and he continued to answer them. I also began to look disinterested, and at one point I even closed my notebook, put my hand on my head, and yawned. Bahlul looked puzzled—he was used to military interrogators writing down everything he said.