500 Days (28 page)

How can he do that?

Neal Katyal, a visiting professor at Yale Law School, watched CNN in disbelief. A news crawl at the bottom of the screen read that Bush had just issued an order creating military commissions to try suspected terrorists. Katyal jumped up off the couch where he had been sitting with his wife, Joanna Rosen, and strode to the computer. The news report couldn’t be accurate.

This was not a new issue for Katyal. Years before, as a lawyer in the Clinton Justice Department, he had researched a similar proposal, concluding that the president could not construct his own legal system: Congress had to approve legislation establishing the arrangement, the president had to sign it, and the courts had to uphold the new rules from certain challenge. That was basic constitutional law out of a seventh-grade civics class. But from the sound of it, Bush had decided to skip a few steps and instead rule by presidential decree.

Katyal sat at the computer and saw he could access the Internet only by phone; he and his wife had just moved to New Haven and were staying at the home of another professor who apparently didn’t want to pay for broadband.

The modem connected to the dial-up service provider with the usual squeaks and squawks. Katyal opened a browser and typed in the address for the White House Web site.

Slowly, the page loaded, and Katyal found the order. As he read it, he chuckled. This had to be a joke. Some hacker was playing around and had set up a fake Internet page designed to look like the White House site. The release was too preposterous to be true.

Checking the address, Katyal felt his heart drop. This was no fake. Bush had engaged in an unconstitutional power grab.

Katyal’s sense of alarm grew as he kept reading. Bush proclaimed that he could set up a trial system on his own, then determine what constituted a crime and what rights would be afforded the defendants. He would handpick the prosecutors, the defense attorneys, and the judge. He declared that a suspect could be convicted based on the votes of just two-thirds of the panel. His administration was going to determine the punishments, including life imprisonment and death.

Katyal read down to the last lines of the order.

“The individual shall not be privileged to seek any remedy . . . in any court of the United States, or any State thereof.”

Amazing.
Bush believed that he could establish a new legal system, and then declared his order exempt from judicial review? Had anyone in the White House even
read
the Constitution?

•  •  •  

Less than half an hour after the announcement, Stephen Hadley, the deputy national security advisor, knocked on Flanigan’s door. Inside he found Addington hunkered down, trying to avoid the backlash from officials who had been cut out of the debate that led to the commissions decision.

Hadley was slow to anger, but his face was etched with disappointment. He fixed his gaze on Cheney’s counsel.

“You should have trusted me on this,” he said, an edge to his voice. “You know how the process works.”

Everyone heard the unspoken message. Hadley wasn’t there just for himself. He was an emissary of Rice. The national security advisor was fuming, too.

“David, you know Dick has to have his papers managed,” Hadley said. Cheney often wanted to sidestep usual procedures. Bush needed to be protected from premature, poorly briefed decisions.

Addington shrugged. “The vice president and the president wanted to do it this way,” he said. “They’re in charge, so that’s how it got done.”

As Hadley spoke, Flanigan thought of another run-in he’d had minutes before, that time with Harriet Miers, the staff secretary. She would never raise her voice or hurl accusations—she was too nice for that—but she had also bitterly criticized the way the commissions order had been handled. Flanigan, she said, should have made sure that things were done the right way.

Flanigan had nodded sympathetically, biting his tongue. Was she kidding? Was Hadley? Cheney wanted something to go straight to Bush, and
the staff
was supposed to stop that runaway train?

•  •  •  

Jim Haynes was in his office at the Pentagon when the call came in from John Bellinger, the legal advisor to the National Security Council.

There were no pleasantries.

“Did you know about this?” Bellinger asked.

“Yes,” Haynes replied. “I knew about it.”

Bellinger said nothing.

“Go talk to Judge Gonzales if you have a complaint,” Haynes said.

•  •  •  

As soon as Hadley left, Bellinger stormed into the White House Counsel’s suite and through the open door to Gonzales’s office.

“What is going on?” he barked. “Why wasn’t I informed? Why weren’t we brought in?”

Gonzales stood and closed the door.

“It’s very serious that the NSC staff was not involved,” Bellinger said, his voice raised. “We should have been part of this.
I
should have been part of this.”

As Bellinger’s steady drumbeat of criticism mounted, Gonzales reverted to type, nodding his head without saying a word.

•  •  •  

They couldn’t hear what was being said in Gonzales’s office, but Flanigan and Addington understood the message. Bellinger’s tone and volume were enough to communicate his wrath.

Addington turned to Flanigan and smiled. “Hey,” he said. “I hope he offers to resign.”

•  •  •  

Bellinger took a breath. “Judge, you always say there is one team. So is there one team? Or two?”

“Well, John,” Gonzales said, “we have one team, but there are certain matters where it’s important to have smaller meetings.”

Bellinger circled back, explaining that the National Security Council couldn’t do its job if it was left in the dark on policy development. Gonzales listened, nodded, and told Bellinger he appreciated his thoughts.

As Bellinger left the office, the White House counsel took a seat. While
Gonzales had been willing to allow the new policy to be developed outside the normal channels, Bellinger had persuaded him that adopting the unusual process had been a mistake. The National Security Council should have been included in the discussion. But there was nothing that could have been done about it—Bush and Cheney had wanted to keep the commissions order secret from most of the senior staff until it was too late to stop.

•  •  •  

In the heart of downtown Damascus, blocks from the lush Sheraton Hotel, stands an unassuming group of three unattractive concrete buildings. There, behind thick concrete walls patrolled by heavily armed guards, reside the damned—prisoners held by Syrian military intelligence at Far’ Falastin, or the Palestine Branch.

This place would now be the home of Ahmad El-Maati, who had just been snatched from the Damascus Airport. After he arrived, El-Maati was hustled inside and up a flight of stairs to an office. There, Syrian officials opened his suitcases, tossing his clothes and personal items to the floor and pocketing the gifts he brought for his in-laws. But they wanted something else.

“Where are the documents?” one asked. “Where is the map?”

El-Maati asked them to explain. In response, they punched and kicked him, then led him to a dark hallway in the basement. Along the wall were narrow doors, like small closets. Number five was opened, and the Syrians threw him inside.

The cell had no window, no light, no toilet, and reeked of urine and feces. It was only about three feet wide, and his head almost reached the ceiling. El-Maati felt as if he were standing in his own coffin.

The door slammed shut and El-Maati stood alone in the darkness, perplexed and terrified. From upstairs, he heard screaming.

•  •  •  

At nine o’clock that night, an elongated Toyota Corolla came to a stop in Jalalabad, about the sixth car in a convoy of hundreds. The back door opened, and bin Laden emerged, gripping a machine gun. As he barked orders at his men, he seemed nervous; he was heading to an al-Qaeda base at Tora Bora, trying to stay ahead of the American bombers and the advancing Northern Alliance troops.

Bin Laden stood under a tree beside a mosque, flanked by dozens of guards. He met with the governor of Jalalabad, then both men spoke with the son of the city’s patriarch, who had ties to both al-Qaeda and the Taliban.

The discussions ended, and bin Laden returned to his car. Then he and his al-Qaeda fighters fled town, taking a rocky dirt road toward Tora Bora.

•  •  •  

Just before dawn, the Northern Alliance began its wild dash for Kabul.

Military leaders in the Pentagon had been planning for a calculated assault, fearful that the Taliban would brutally repel a direct attack by the Northern Alliance on the capital city. General Franks wanted plans drawn up for paratroopers to drop somewhere near Kabul, hoping to lure the enemy away from the front lines north of the capital and opening the way for the Northern Alliance to storm into the city.

But with the Taliban rapidly falling apart, Northern Alliance leaders didn’t want to wait. Instead, General Mohammed Fahim, defense minister of the Northern Alliance, moved his forces ahead of schedule across the Shomali Plain. Taliban resistance evaporated. Thousands of fighters advanced twelve miles in record time. Near the city, the roads were littered with the bodies of former Northern Alliance supporters who had switched sides to the Taliban in what proved to be a fatal gamble.

The leaders of the American coalition feared a hasty influx of fighters into Kabul, and Fahim agreed. Quickly pouring into the city might threaten—and frighten—some of its Pashtun tribal leaders; the situation called for a more measured approach. To ensure that his troops didn’t succumb to the thrill of the chase, Fahim ordered armored vehicles into position to block the advance.

Hours later, the Northern Alliance reached Kabul in orderly fashion. People rushed into the street, arms raised in exultation. A chant arose from the crowd.

Kill the Taliban! Kill the Taliban!

•  •  •  

About 6:30 that same morning at his West Village home in Manhattan, Michael Ratner poured himself a cup of coffee and lay down on his couch. Following his morning routine, he picked up that day’s
New York Times
and scanned the front page. A headline caught his eye.

Bush Sets Option of Military Trials in Terrorist Cases

That immediately captured his interest. As president of the Center for Constitutional Rights, a public interest law firm that used the courts to defend civil liberties, he spent much of his time fighting what his organization deemed as
inequities in the justice system. But this sounded as if the Bush administration was planning to abandon that system entirely.

As he read on, Ratner’s dismay grew. Inside the paper, the
Times
had printed the text of the order, and it was worse than he feared. The
president
would decide who was a terrorist, personally designating defendants for the commissions. The government could put anyone—picked up anywhere—on trial. The prosecution would not have to prove guilt beyond a reasonable doubt. There would be no strict rules of evidence. No one would be able to challenge his incarceration in the courts. The administration could hold anyone it chose, forever, without having to prove a damn thing.

This is unbelievable,
he thought.

He went for the phone and called Bill Goodman, the center’s legal director.

“Bill, go pick up the
Times
right now,” Ratner said. “You will be completely floored by what you see.”

He summarized the details of Bush’s gambit. “Essentially, the president is taking over the country,” Ratner said. “And we have to figure out what to do about it.”

“Okay, I’ll look at this,” Goodman said.

They agreed to meet at the office immediately. There, they reviewed the order line by line. The more they understood it, the worse it seemed.

“This idea that you can hold people forever is unbelievable,” Ratner said.

“Michael, I agree with you. We’re going to have to do something.”

In a matter of seconds, they decided. They would wait until the first defendants were moved into the military commissions system. And then they would run immediately to court to fight the administration.

•  •  •  

His classroom was filling up with law students when Neal Katyal arrived carrying copies of Bush’s military commissions order.

The discussion this day, he thought, was sure to surprise his students. For weeks, Katyal had given lectures about presidential authority, advancing his views that the clout of the executive branch increased markedly at a time of war. He had argued that a president could order the rendition of a suspected terrorist from another country. He had voiced his support for the Patriot Act, the controversial, recently passed statute granting law enforcement new muscle in dealing with terrorists. Katyal’s support of executive power during a national threat was so consistent that students often joked that the government could do nothing he would deem outside the law.

Today, he would prove them wrong.

“Okay,” he announced as he handed the document around. “Here is something that I think is
really
unconstitutional.”

Katyal spoke passionately, criticizing Bush for ignoring Congress and the courts in making this declaration. Under the process used by Bush, he said, a president could declare laws independently, with no checks or balances.

As one student listened, she had a thought. She had once worked for Senator Leahy, who sat on the Judiciary Committee. Katyal would make a perfect witness for a hearing on the military commissions order. Maybe that was something she could arrange.

•  •  •  

Two guards brought El-Maati into a poorly lit room. George Salloum, the head of interrogations, waited inside. He smiled as he approached his new prisoner.

“There is no point hiding information,” Salloum said. “I already know so much about you.”

In a calm voice, Salloum ticked off El-Maati’s address in Toronto, plus the make, color, and license-plate number of his car. The moment was terrifying—the Canadians, El-Maati thought, had to be working with the Syrians.