500 Days (26 page)

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 was 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.

As he happily dreamed of his wedding that day, El-Maati couldn’t have guessed that he would never see his fiancée again.

•  •  •  

Rumsfeld pulled no punches.

“The Northern Alliance is not going to overcome the Taliban,” he said. “The CIA’s plan is failing.”

The militias would not seize strategically important cities, Rumsfeld argued, particularly Mazar-e Sharif. The Afghani capital, Kabul, would not be captured before the brutal winter arrived, and the alliance—even working with the CIA and the A-teams—would be incapable of encircling the city.

To prove his point, Rumsfeld produced an analysis from the Defense Intelligence Agency, handing it out at a meeting of the National Security Council. The report’s conclusions were equally stark.

“The Northern Alliance will not secure any major gains before winter,” it read.

There was no real option, Rumsfeld argued. The CIA needed to surrender its independent authority and start reporting to General Tommy Franks. The armed forces should take over.

Tenet argued that Rumsfeld was wrong. “We are closing in on our objectives,” he said. All they needed was a little more time.

Other members of the National Security Council were skeptical; less than three weeks after the bombings began, there were news articles that proclaimed that the United States was sinking into a quagmire, another Vietnam.

Tenet was steadfast. The plan was going to work.

•  •  •  

The battle for Mazar-e Sharif began at dawn on November 5. In the opening salvo, a group of MC-130 aircraft dropped two BLU-82 “Daisy Cutters” on Taliban locations at the city of Aq Kupruk.

American A-Team 595 moved toward enemy positions, but the Taliban counterattacked in an effort to trap the soldiers. Using satellite radios, the Americans called for air support. F-14 jets flew in, strafing the Taliban.

The bombing, followed by Northern Alliance attacks, was relentless. Taliban commanders were killed. An attack on the Taliban forces by an F-18 Hornet aircraft pushed most of the enemy back; on horseback, the Northern Alliance launched a cavalry charge immediately after the explosion. The remaining Taliban retreated to the north.

•  •  •  

A Middle Eastern country passed on the intelligence—another al-Qaeda hijacking was in the works, with at least one terrorist planning to divert a Canadian flight to strike a new, high-profile American target.

The information reached CSIS on November 8, and this was something the intelligence services could act on. The country that had developed the intelligence knew the name of a hijacker: Amer El-Maati, the brother of Ahmad, the man with the map.

Amer had long been suspected of being an al-Qaeda member, and the new intelligence said that he had already arrived in Canada to prepare for the hijacking. CSIS provided multiple agencies with the information, but there was no record of Amer having traveled there.

The next morning, Canadian law enforcement dug up another frightening scrap of evidence. Ahmad El-Maati was planning to fly from Canada to Syria, supposedly for an impending wedding. Investigators considered that to be nothing more than a ruse—El-Maati, they feared, might instead be planning to fulfill his brother’s hijacking plan.

An official with a division of the Mounties took steps to make sure El-Maati was not allowed to fly. But, unknown to the official, another unit was planning to let him board the plane and place him under surveillance.

The Canadians decided to tell the Syrians nothing about El-Maati’s itinerary; there was no threat to their country, and letting them know that a suspected terrorist was arriving in Damascus might put him at personal risk. The CIA, on the other hand, needed to know, since the threat involved the United States.

El-Maati’s travel plans were passed to the Americans. They, in turn, notified Syrian intelligence.

•  •  •  

A group of lawyers arrived in Ashcroft’s office. Bush had instructed Gonzales to inform the Justice Department about the plans for military commissions, and the attorney general was not pleased with what he heard.

He was particularly angered to find out that two of his
subordinates
—John Yoo and Pat Philbin in the Office of Legal Counsel—had not only known about the proposed order but had even helped the White House write it. And neither of them had said a thing about it to Ashcroft.

Yoo and Philbin were told to come to the meeting, and they were the last to arrive. They already knew this was about the White House plan.

“Tell me why you two are involved in this and why didn’t I know about it?” Ashcroft asked.

Philbin answered, explaining that Yoo had been called over to the White House counsel’s office and given the draft order without any warning. Yoo had brought it back to the office and discussed it with Philbin. Then the two of them came up with the preliminary thinking about the legality and took that to the White House. Philbin mentioned their research on the
Quirin
case and another Supreme Court decision.

Ashcroft broke in. “Why does Rumsfeld get to decide who’s going to be designated for the commissions? Why isn’t it me?”

This was weird.
They had been in Ashcroft’s office for five minutes, and every question had been about turf. Nothing about constitutionality, nothing about how the commissions would work, nothing about their history. Many department lawyers whispered that Ashcroft had no interest in law, only politics, and Yoo had seen that for himself. But on a matter of such import, he thought the attorney general would ask
something
about the law. No such luck.

“We look on that as a legal issue,” Philbin said. “This is all going to be reviewed by the courts someday, and it’s more likely to be upheld if it’s the military deciding who goes to the military courts, because that’s a function of fighting war.”

On the other hand, Philbin continued, if the attorney general made that decision, it would seem more of a law enforcement effort than a function of a military campaign. That had far less probability of winning court approval.