500 Days (25 page)

For fifteen minutes, Berenson described the debate in the Prosper group, laying out how each topic had been considered. The same questions were being mulled over three or four times. It didn’t feel as if the discussion was narrowing. In fact, Berenson said, it was expanding.

As he spoke, Flanigan and Addington exchanged glances. This didn’t sound good. They had hoped Prosper would wrap up the job quickly, and that certainly wasn’t happening.

They’re still deciding what kind of corners their conference table should have,
Addington thought.

Berenson shrugged. “This thing’s going slow,” he said. “At this rate, you won’t see an order until after Thanksgiving.”

The room was silent for a moment. Gonzales gave a half smile, then dropped his head to his chest. Flanigan brought his hand up to his forehead.

“This is ridiculous!” he snapped. “This is starting to be like the damn NSC!”

Things weren’t going to get much better, Berenson said. “Look, if you want to keep your hands off this, it’s just going to roll along at its own pace,” he said. “But then it’s going to be a long time before you have the answers you want and, more importantly, before the president has the authority you think he needs.”

The discussion ended and Berenson headed back to his office. The other three lawyers stayed behind.

Addington was shaking his head. “We’re never going to get there with these guys,” he said.

“No,” Flanigan replied. “We’re not.”

They needed other options, the three men agreed. Maybe the best idea would be to forget about the Prosper group and just put together a presidential order on their own, without worrying about other agencies’ opinions.

Addington returned to his office. On his computer, he searched for a copy of Roosevelt’s original order to convene a military commission.

•  •  •  

Tony Blair was frustrated. He had deployed British Special Forces to the fight in Afghanistan but worried that the Bush administration wasn’t throwing its complete support behind any particular strategy.

General Franks was a good leader, Blair thought, and the right man to head the military’s effort in Afghanistan. Rumsfeld was another issue—the prime minister considered him erratic, wrapped up in bureaucratic turf battles when he should be focusing on winning the war.

Blair was astonished that no one was stepping in to compensate for Rumsfeld’s inadequacies. There was no clear political direction coming out of the White House; critical decisions were being shoved off. The Americans had only a halfhearted commitment to the Northern Alliance—a consequence of the Pentagon’s sniping at the CIA plan.

The moment had come, the prime minister told his aides, to take a stand—the Americans needed to fully back the Afghani fighters or not. He wanted to plow ahead, but there wasn’t much time. They couldn’t afford for Washington to keep dithering.

“The Northern Alliance must be sitting there thinking the Americans are just scared of suffering casualties,” Blair told an aide.

At 2:00
P.M.
On October 17, he reached the president and explained his concern that the administration had not signaled unwavering support to the Northern Alliance.

“We have to go for the Northern Alliance, let them do what they can, put them on a leash if need be, and hold them back later,” Blair said.

“You’re right, as always,” Bush replied. “The Northern Alliance are the best people to help us, but they have to be willing to share power later.”

Blair got off the phone feeling cautiously relieved. Bush seemed to have understood his message—the Taliban were not going to fold unless the militias drove them out.

•  •  •  

Soldiers with Operational Detachment Alpha 585—an “A-team”—stood before their leader, Master Sergeant John Bolduc. The group, stationed at Fort Campbell, was one of the first Army Special Forces teams in Afghanistan for the battle against the Taliban and al-Qaeda. Today, Bolduc wanted his soldiers to understand that the coming fight to protect their fellow countrymen could well be a suicide mission.

“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 about 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.