500 Days

by Kurt Eichenwald

“We might not survive,” he told them. “But I want you to fight to the death rather than surrender or be taken prisoner.” The enemy was not like any other they had encountered—they honored no military code and would certainly kill anyone they captured in the most brutal and gruesome way they could conceive.

  A-Team Detachments 555 and 595 arrived in Afghanistan on October 19. Eleven members of 555 traveled by MH-47 Chinook helicopters to the Panjshir Valley, landing late in the evening at the Jawbreaker camp in Astaneh. There, they received their initial briefing from the CIA operatives.

  Meanwhile, twelve members of 595 made it to Darya Suf Valley, linking up with a Northern Alliance force led by General Rashid Dostum. The plan was for the Americans and Afghanis to launch an assault on the strategically important town of Mazar-e Sharif, a Taliban stronghold.

  The operation would be difficult. The only means of transportation was horses, which would have to travel some seventy miles to Mazar-e Sharif. The Afghan saddles were too small, and the stirrups too short, but the soldiers managed to keep up with Dostum and his men. The Special Forces commander, Captain Mark Nutsch, was particularly skilled at riding; he had been a rodeo rider and calf-roping champion before joining the army.

  Relying on horses created some strategic issues—how, for example, would the animals be fed? Bales of hay would simply be too heavy to lug into battle. Instead, cargo planes flew over Afghanistan, dropping parachutes loaded with hay at prearranged sites.

  This band of American and Afghani soldiers proved inordinately superior to the Taliban. Two days after reaching Afghanistan, the fighters located Taliban positions in the Beshcam area, about eight miles from Dostum’s headquarters. Nutsch got on the radio and called in airstrikes. Delighted that the enemy would soon be bombed, Dostum radioed the commander of the Taliban unit.

  “This is General Dostum speaking,” he said. “I am here, and I have brought the Americans with me.”

  The airstrikes continued as the convoy moved relentlessly toward Mazar-e Sharif. On the journey, they drove enemy forces from more than fifty towns and cities, killing and capturing thousands of Taliban and al-Qaeda soldiers, while destroying vehicles, bunkers, and weapons.

  The soldiers were stunned at their success. “We are doing amazingly well with what we have,” Captain Nutsch wrote in his first field report. “Frankly, I am surprised that we have not been slaughtered.”

  • • •

  Weeks after being rebuffed in Congress, the administration was still ruminating about an unprecedented question: Could the president order the armed forces to conduct military operations inside the United States?

  Despite the new powers granted to law enforcement and intelligence agencies since 9/11, there still were no guidelines on the limits of the president’s power to pursue terrorist cells already operating inside the country.

  As the rules seemed to stand now, the FBI would be in charge. Then all of the rules for a criminal case would come into play—warrants, indictments, lawyers, standard rules of evidence. Afterward, there would have to be trials in federal courts, which the White House lawyers had already decided would put judges and juries in jeopardy.

  While the president hadn’t yet signed any order, the lawyers knew that captured al-Qaeda members were going to be tried through military commissions. To make sure that terrorists caught in the United States were subjected to those rules, the FBI couldn’t arrest them.

  But a law had been on the books for more than one hundred years—the Posse Comitatus Act—that specifically prohibited the use of the military for domestic law enforcement operations. Perhaps, Pentagon and White House officials suggested, there was an argument to be made that the law did not apply at a time of war.

  The question went to John Yoo in the Office of Legal Counsel. Working with Robert Delahunty, special counsel in the unit, Yoo reached a definitive conclusion: The century-old law could be ignored.

  “We conclude that the President has ample constitutional and statutory authority to deploy the military against international or foreign terrorists operating within the United States,” the lawyers wrote in a memo to Gonzales and Haynes.

  In undertaking an operation against terrorists inside the country, the military would not be bound by the same constitutional restrictions faced by law enforcement—there would be no need to establish probable cause or to obtain a warrant. Soldiers could raid any domestic location—a house, an office building, a meeting center—and capture any suspect. All they would need was an order from Bush or any other high-ranking administration official.

  • • •

  The White House mess is a group of three small dining areas adjacent to the Situation Room in the basement of the executive mansion. They were elegant, but without pretension—beige linens draped circular and smaller rectangular tables amid wood paneling. The food was tasty, but not what anyone would call gourmet.

  Flanigan was there at a junior staff table enjoying his lunch when Addington arrived and dropped into a seat beside him. He held out a few pieces of paper.

  “This is my draft of the military commissions order,” Addington said. “It’s carefully modeled on the Roosevelt order. I’d like you to take a look at it, and give me your thoughts.”

  Flanigan took the draft and gave it a once-over. After lunch, he went back to his office and reviewed the document more carefully. He marked it up with a pen; there were some issues about how suspected terrorists would be designated for a commission trial and also some problems with timing. But all in all, he thought, Addington had nailed it.

  • • •

  American ground forces were preparing for their first operation in southern Afghanistan. The plan was to launch a parachute assault with about two hundred Rangers from the Third Battalion, Seventy-fifth Ranger Regiment. Their goal: to capture a small desert airfield about fifty miles southwest of Kandahar, a target dubbed Objective RHINO. With the airfield under American control, it could then be used as an arming and refueling point for helicopters carrying Special Operations Forces for the next wave of attacks.

  First, the target had to be cleared of Taliban fighters by the Third Battalion’s A and C Companies. Then air force B-2 Stealth bombers hit various areas around RHINO, followed by strafing runs by an A-130 gunship.

  But the clearing operations missed a particularly grave Taliban position protected by a ZSU-23 antiaircraft gun. It was set on a mountaintop, overlooking the drop zone where the parachuting Rangers would soon be landing.

  Just as the transports were carrying the Rangers to the location for their assault, an armed Predator captured the image of the Taliban gun, transmitting it in real time back to CIA headquarters seven thousand miles away.

  • • •

  The video showing the antiaircraft gun appeared on a screen in the agency’s Global Response Center in McLean, Virginia. An agency staffer turned to Cofer Black.

  “What are we going to do?”

  “You’re armed?” Black asked.

  “Yes.”

  Black didn’t hesitate. “Shoot the thing.”

  • • •

  Seconds later, the Predator launched an AGM-114 Hellfire missile. It struck the antiaircraft gun, obliterating the Taliban position. Soon after, the Ranger paratroopers began landing at Objective RHINO. The airfield was secured that same night. Only one Taliban fighter defended it.

  • • •

  John Ashcroft was sitting at his desk, facing the wall, when John Yoo arrived. He swiveled around in his chair, facing the lawyer. Ashcroft was pleased. He had summoned Yoo only minutes before and didn’t tolerate dawdling.

  The attorney general stood and asked Yoo to follow him to the nearby Sensitive Compartmented Information Facility—the SCIF—where they could conduct a classified discussion. After setting the proper entrance codes and heading inside, Ashcroft went to one of the SCIF’s five safes that were used to hold highly classified material. He brought out a document, just a few pages in length.

  “What I’m abo
ut to talk to you about is extremely sensitive,” Ashcroft said. “No one else in the department is allowed to know about it. You are only allowed to talk to me about it.”

  Yoo was intrigued but still thought the restrictions were odd. He listened without comment.

  “This involves surveillance by the NSA,” Ashcroft continued. “You’ve been working on these matters, so you’ve been brought in on this to offer a legal opinion.”

  The attorney general held out his hand. “Take this. Let me know when you’re finished.”

  The discussion ended. Ashcroft had told him nothing, no background, no details of the program’s operation—Yoo was just supposed to figure it out from the presidential order he had just been handed by the attorney general.

  The NSA program had been in operation for about three weeks. Only now was someone going to do the analysis to make sure that the administration wasn’t breaking the law.

  • • •

  On the afternoon of October 24, Jack Straw, the British foreign secretary, settled onto a couch in Cheney’s ceremonial office. He and some aides had arrived in Washington earlier that day and had proceeded through a series of meetings to discuss the progress in the Afghanistan war.

  Cheney was bullish. “The military campaign is going extremely well,” he told Straw. “Everything is unfolding the way we planned. We are going to be victorious.”

  “Yes,” Straw said. “But what’s the strategy?”

  The question was blunt, almost designed to be insulting. The air campaign had begun three weeks before, the British Special Forces teams were deep inside Afghanistan engaged in brutal firefights with Taliban forces, and the Blair government was the Americans’ strongest ally in the war. Yet, Straw was suggesting, the Bush administration hadn’t yet explained the details of its military plan.

  Cheney paused, as if he were thinking through his answer. There was no life in his face; he struck Straw as cold, with slightly menacing body language.

  “The Northern Alliance should be taking Mazar soon,” Cheney replied. Then he laid out what might follow with the American drive to capture Taliban and al-Qaeda fighters.

  Straw listened, unsatisfied.

  What is the military strategy? Cheney was talking, but he wasn’t answering the question. The words of prediction—“We’re going to take this city and we’re going to capture that terrorist”—told Straw nothing about how the administration was going to accomplish those goals.

  Straw eased around the same question. What was the strategy?

  Cheney never answered.

  • • •

  Little girls’ dresses. That was the focus of the next classified mission for the battle in Afghanistan.

  The war plan was beginning to show progress. Jawbreaker and the A-teams were advancing, working with the Northern Alliance and American bombers to rout the Taliban from city after city, village after village.

  The key tactic now was gaining allies. Local warlords had no particular allegiance to the Taliban. Each of them who could be persuaded to side with the Northern Alliance and the Americans became another wall closing in on the Taliban and, more important, a source of intelligence to help locate, capture, or kill members of al-Qaeda.

  Winning them over became a practiced skill. The warlords wanted to support the likely victor, and sometimes that meant demonstrating the overwhelming power of the American military. One warlord questioned a member of a CIA team how, if the Taliban won, he and his people would be kept safe. The intelligence operative pointed at a nearby radio tower.

  “Watch that,” he said. The operative got on the radio and said a few words.

  Minutes passed. Then, an explosion. The tower was gone, destroyed by a missile launched from far away. The tribal leader agreed to oppose the Taliban.

  Others wanted to prove to their people that they could provide for them. Power was always in flux in Afghanistan, and each leader sought to keep his villagers as eager supporters. That meant gifts or other benefits.

  When the CIA agents arrived at one location, they met with the commander. They explained what they were doing, and that the Taliban were about to fall. What, the warlord was asked, would he need to support the effort?

  The answer—little girls’ dresses. Nice clothing for the children in his village was a rarity. The boys could make do, but parents hated to see their young daughters dressed so poorly. If the American military could arrange to bring girls’ dresses to the warlord, he could distribute them; that would gain him renewed support among his people.

  The message was relayed from the field, then back to Ramstein Air Base in Germany. An officer ordered a shopping mission. The dresses were purchased, loaded onto the next cargo plane, then parachuted into an agreed spot in Afghanistan. The CIA delivered the clothes to the warlord.

  With that, a new ally was won.

  • • •

  John Yoo was walking down Pennsylvania Avenue for a meeting at the White House. Shortly before, he had received a call from Flanigan to come over for an important discussion, but he didn’t feel the need to rush.

  He arrived at the South Gate in about fifteen minutes and, after being cleared through security, headed to the main entry for the West Wing, then upstairs to the White House counsel’s suite.

  Gonzales and Flanigan were waiting for him. Everyone took a seat around the coffee table. Addington was the last to arrive.

  Yoo nodded to him. “Hi, David.”

  Flanigan held out a piece of paper. “Look at this,” he said. “Do you have any thoughts on it?”

  Yoo glanced over the document. It was a draft presidential order, setting up military commissions to try terrorists. The wording was familiar.

  “This is very similar to the FDR order,” he said.

  Addington agreed. They had used Roosevelt’s order as a template, he explained, making very few changes, since it had already been challenged in the Supreme Court and ruled constitutional.

  “Well, it’s been sixty years,” Yoo said. “A lot has changed since then.”

  Yoo spent another minute reading.

  “This is a huge step,” he said. “If the president issues this, it’s going to be a big deal.”

  “We know,” Addington replied. “But we think things are going too slowly. We’ve got to make a decision.”

  Yoo noticed some wording that suggested that the White House lawyers wanted to exclude the courts from having the authority to review anything related to the commissions. Not a good idea—the Supreme Court had already considered military commissions in the Quirin case. That precedent established the authority of the judiciary. The justices wouldn’t agree to give that up just because a presidential order said they should.

  “Well,” Flanigan said, “what, if anything, in here might be considered unconstitutional?”

  Before Yoo responded, Addington broke in. “Why would any of it be unconstitutional?” he asked. “Tell me if I’m wrong. This is FDR’s order. The Supreme Court upheld it. Why would anything in it be unconstitutional?”

  Because the court had changed, Yoo replied. “Look, there is a political portion that you’re overlooking,” he said. “We’ve got a very divided court. Look at the Bush v. Gore lineup. The court is made up of politicians, they’re political actors. So just because FDR’s court upheld this sixty years ago doesn’t mean the court will do the same thing.”

  Politicians? The other lawyers chuckled. “That’s pretty cynical,” Flanigan said.

  No, thinking otherwise was naive. “I clerked at this court before,” Yoo said. “I’ve seen how the sausage is made. I wish they were like a machine that would do the law in a predictable way, and I think most of the people in this country think they’re like that. But they’re not.”

  “I don’t buy your explanation of the court,” Addington replied. “The court said this in Ex Parte Quirin, and that’s the law. They’re not going to change it.”

  Yoo shrugged. “They change the law all the time.”

  There w
as another issue, Yoo said—nothing legal, just political. The order said that the secretary of defense would have the power to decide who should be tried before a commission. That meant the Justice Department would play no role in dealing with captured terrorists. A criminal prosecution of the 9/11 plotters would never take place. Ashcroft was not going to be happy about that.

  • • •

  Bush and Cheney were eating lunch in the president’s private dining room, down a corridor from the Oval Office. This was their usual get-together where they could discuss pressing issues in confidence.

  About twenty minutes into the meal, Cheney produced the draft order on military commissions. “This is something my people have been working on,” he said, “and I think it deserves serious consideration.”

  Bush read the short document. He asked no questions and returned it to Cheney.

  “This is good,” he said. “Let’s keep going on this.”

  “Do you want to bring it to the NSC?” Cheney asked, without mentioning that he opposed doing so. If the members of the National Security Council got their hooks into this, the bureaucratic debate would delay everything.

  Bush agreed. Taking the order to the NSC was unnecessary.

  “Let’s just keep this thing moving,” he said.

  • • •

  Ahmed El-Maati had become engaged in the spring to a Syrian woman and had agreed with his fiancée to marry during Ramadan. Now, with the Islamic holy month fast approaching, he and his mother were preparing to travel to Damascus for the wedding.

  The timing was perfect. Government agents had not let up on shadowing him—as he walked down the street, when he drove. They made little effort to keep it secret, once tailing him with multiple cars that followed him when he took side streets in relatively untraveled areas. Between the news reports, the surveillance, and the government’s refusal to return his lawyer’s calls, El-Maati was glad to be getting out of Canada for the month.

  As he readied himself, he spent a few days purchasing gifts for his fiancée and her family. He wanted to impress them—marriage was important in his culture, and he had been searching for a wife for more than four years. When he met her months before, he knew that this was the woman he wanted to spend his life with.