500 Days (31 page)

Katyal listened in silence as other experts testified in support of the plan. Michael Chertoff, the head of the criminal division of the Justice Department, presented the administration’s case. Finally, it was Katyal’s turn. From his opening sentence, he attacked the order, calling it an unconstitutional assumption of power by the president.

“Our Constitution’s structure,” he said, “mandates that fundamental choices such as these be made, not by one person, but by the branches of government working together. Ignoring this tradition charts a dangerous course for the future.”

While there had been rare times in history that the government had to
temporarily dispense with civil trials, such an action was never before taken by a single person.

“A tremendous danger exists if the power is left in one individual to put aside our constitutional traditions when our nation’s at crisis,” he said. “The safeguard against the potential for this abuse has always been Congress’s involvement in a deep constitutional sense. The default should be faith in our traditions and faith in our procedures.”

Bush’s decision to bypass Congress set a dangerous precedent, Katyal said. Any future president could unilaterally declare that specific types of crimes—such as drug trafficking or gun offenses—should be outside the legal system and shifted, instead, into the commissions. The examples might seem unbelievable, Katyal said, but they were smaller steps than the ones already being taken.

“I believe the administration is trying to do its best, but that’s part of the point,” he said. “Our constitutional design can’t leave these choices to one man, however well intentioned or wise he might be.”

Katyal paused. “We don’t live in a monarchy.”

With those final words, Neal Katyal took his first tentative steps in what would prove to be his multiyear court challenge to the Bush order. His client would be Salim Hamdan, the bin Laden driver who had been seized at a roadblock in Afghanistan just four days earlier.

•  •  •  

Over several days near Kunduz, combatants loyal to General Dostum continued taking custody of men who surrendered, including confessed Taliban members and Muslims who claimed to be innocents trapped by the bombing. Dostum maintained his policy of sending the Afghanis back home while detaining the foreigners captured by his troops.

On November 28, another group of Muslims riding in a truck outside of Kunduz gave themselves up to Dostum’s militia. At gunpoint, the men were removed from the vehicle and forced to their knees while Dostum’s fighters searched them for weapons and identification. Three of the men—Shafiq Rasul, Ruhal Ahmed, Asif Iqbal—were British citizens from Tipton, England, who would later insist that they had come to Afghanistan the previous month to provide humanitarian aid. The only reason they were in the region, they would say, was that they had traveled to Pakistan in September for a wedding.

But they mentioned none of this when they were seized on the road outside of Kunduz. As Britons, they were foreigners, no different under Dostum’s edict from Pakistanis or Egyptians or any other outsiders. The Northern Alliance
fighters tied the hands of the hundreds of new prisoners behind their backs then drove them for more than a day to Mazar-e Sharif, where they were sealed into large containers ordinarily used to transport cargo. From there, they were moved to Dostum’s prison at Sheberghan and locked into large cells.

Many of the detainees died during the journey, from the heat and cramped conditions in the containers. But the British men survived and would be turned over to the American military for interrogation.

Before long, they would be dubbed the “Tipton Three,” and their names would be known worldwide.

•  •  •  

The Battle of Tora Bora began on November 30. The Jawbreaker team had conducted an arduous expedition to a mountaintop and discovered hundreds of al-Qaeda fighters. An air force combat controller in the group called in airstrikes; a laser that the team had brought with them was used to “paint” the targets, giving the bombers something to lock onto. Explosions rocked the mountainous region.

•  •  •  

The rebellion at Qala-i-Jangi was put down six days after it blazed through the fortress. When guns and bombs failed to quell the uprising, the Northern Alliance turned to more vicious alternatives. They poured liquid fuel into the basement where the prisoners were making their last stand. When that didn’t force them out, the soldiers diverted a stream, sending down a flood of freezing water. The fort filled with the screams of drowning men until finally the remaining Taliban announced their surrender.

More than eighty prisoners crawled out of the subterranean vault—dirty, hungry, and suffering from hypothermia. A few guards handed out fruit to the starving survivors. One gave an apple to a thin, disheveled man who was holding himself up on a stick.

“Thank you,” John Walker Lindh said in English.

•  •  •  

The flatbed trucks pulled into the rubble-strewn fortress courtyard, evidence of the American bombs that struck Qala-i-Jangi over the past few days. Forcefully, the Northern Alliance soldiers wrangled the survivors on board.

Rumors circulated that one prisoner could speak English and perhaps was an American. Colin Soloway, a freelance reporter from
Newsweek,
heard the story from his translator and decided to find out for himself. He stepped up on a truck bumper, then looked around at the dirty, injured Taliban members
inside. A guard pointed to a man sprawled on the flatbed. Soloway thought this fighter looked like a hippie.

“Are you an American?” Soloway asked.

“Yeah,” Lindh replied.

A fifteen-minute conversation ensued. Lindh spoke in measured, carefully chosen words. He had come to Afghanistan, he said, to help create a true Islamic state.

But Lindh was with a Taliban fighting force. Was he al-Qaeda? “Did you support the September 11 attacks?” Soloway asked.

“That requires a pretty long and complicated answer. I haven’t eaten for two or three days, and my mind is not really in shape to give you a coherent answer.”

Soloway pressed the question. Did he support the terrorist attack on the United States?

Lindh relented. “Yes,” he said. “I supported it.”

•  •  •  

Nearby, Matthew Campbell, a correspondent for the
Sunday Times
of London, was counting the drenched and tattered men as they passed, asking questions that none of them would answer. Then a barefoot prisoner wearing a soaked green tunic stopped in front of Campbell.

“Where are you from?” the reporter asked.

“Where am I from?” the man replied. His English was perfect.

He glanced around the compound and sniffed the air before responding. “I was born in America,” he said.

“Where?”

Another pause. “Baton Rouge,” he said. “Baton Rouge, Louisiana. You know it, yeah?”

An American?
Who was he? How had he come to fight here, so far from his home? Campbell asked.

Before the detainee could answer, a guard pushed him forward. The man glanced back once as he walked away, heading toward the trucks.

Months would pass before United States officials would realize that the man, Yaser Esam Hamdi, was indeed an American, the second to be captured at Qala-i-Jangi. Until then, he would be held by the military alongside the foreign fighters.

•  •  •  

Bombs ripped apart a valley in Tora Bora that al-Qaeda had hoped would be a stronghold. With the fighters cleared out, a member of the Jawbreaker team went to inspect the area.

On the ground, he saw a mangled body clutching a Yazoo radio, the kind al-Qaeda favored. He listened to it and realized that it was tuned to the frequency used by the terrorist group. He could hear them calling for food and water, and proclaiming their desire to kill Americans.

Then there was a voice he recognized from more than fifty intercepts and tape recordings. It was bin Laden, urging his men to keep up the battle.

Another fighter spoke. “Zamat, how is the sheikh?”

Someone answered, “The sheikh is fine.”

This was the proof. Bin Laden was nearby, no farther than the radio frequency’s range.

•  •  •  

The reporters at Tora Bora seemed to outnumber the American fighters. The Jawbreaker teams were convinced that more troops were necessary—they were at a watershed moment, just days or maybe hours from a final confrontation with bin Laden. The terrorist leader who had brutally killed so many Americans could soon be dead or imprisoned, if the Pentagon was willing to make a push.

At this point the Pakistanis and the Eastern Alliance were the only hope of catching bin Laden, but neither seemed up to the job. Since it was Ramadan, the Eastern Alliance members who had been fasting all day retreated from the battleground for dinner once the sun set; the Pakistani military had left numerous paths from Tora Bora to their border uncovered, and members of the Jawbreaker units questioned whether those soldiers would stop—or aid—escaping al-Qaeda members.

The Americans could fix those problems. All that was needed, the Jawbreaker leaders agreed, was a battalion of Army Rangers dropped behind al-Qaeda’s positions. They would stand the best chance of blocking the terrorists from reaching Pakistan.

The request reached Tommy Franks and Rumsfeld. And they turned it down. Both now wanted to avoid committing many troops and instead rely on the Afghani allies working with Special Forces teams. The United States needed to keep a light footprint in Afghanistan, Rumsfeld argued, or there might be a rise in anti-American sentiment that would fuel an insurgency. Plus, throwing together the troops and the means for keeping them supplied might be too difficult to accomplish in such a short time. Suddenly, when the Pentagon was most needed for the fight, Rumsfeld was no longer willing to become more involved. With the CIA and Special Forces having led the way to victory without much input from the Pentagon—and over Rumsfeld’s demands that the armed forces
spearhead the fight—the defense secretary and his lead general packed up their marbles and went home.

The escape routes into Pakistan remained open.

•  •  •  

Seasoned oak crackled in the fireplace of the Oval Office on the morning of December 10. Ashcroft and Bush were there, separated only by the presidential desk built from planks of the nineteenth-century British frigate HMS
Resolute.

“Mr. President,” Ashcroft said, “I have been discussing this issue with my senior staff and recommend that Zacarias Moussaoui be tried in civilian court by the Department of Justice.”

This was the man suspected of being the twentieth hijacker for the 9/11 attacks, Ashcroft said, but who had already been arrested weeks before the strike took place. Bush had stated that military commissions were another option and that, when appropriate, terrorism trials would be conducted in civilian court. That would be the best choice for Moussaoui. He would be the first suspected al-Qaeda member tied to 9/11 who would be brought to justice. A public trial would allow the American people to have a greater understanding of the evil facing the country.

“This case has already been presented to a grand jury,” Ashcroft said. “We are ready to indict, as soon as tomorrow.”

“If this was handled in a criminal court, civilian criminal court, would national security be endangered?” Bush asked. “Would sources or methods be compromised?”

“No, sir,” Ashcroft replied.

Moussaoui had been arrested by the FBI inside the United States. Proper criminal procedures had been followed—Moussaoui had been read his rights, no searches had been conducted without warrants, and only civilian law enforcement had been involved in the case. No intelligence agencies played a direct role in the investigation.

Ashcroft finished his presentation. Bush nodded thoughtfully.

“I agree,” he said.

•  •  •  

The next afternoon, an al-Qaeda lieutenant radioed General Zaman of the Eastern Alliance to negotiate terms of surrender.

As a Pashtun, Zaman could scarcely refuse. His people’s identity and social structure are defined by a unique social code called Pashtunwali. Under its precepts, Zaman was obligated to grant personal protection to anyone who
requested it, even an enemy. Had he turned away the al-Qaeda entreaty, Zaman would have been accepting a great shame by abandoning his honor.

A translator ran to a sergeant on Alpha Team 572.

“Stop,” the translator said. “No more bombs.”

That was a good sign. Air assaults were always halted when Eastern Alliance forces moved forward, to avoid shelling them by mistake. Then, when they seized their new position, the attack resumed.

Time passed—ten minutes, twenty minutes, more. Usually the Eastern Alliance troops reached their destination faster than this. Perplexed, the staff sergeant approached the translator.

“Why are we stopping for so long?” he asked.

The translator waved his hands. “No, no. Don’t drop any more.”

•  •  •  

Bin Laden, still hiding miles from his fighters, knew nothing about the supposed negotiations being conducted with the Eastern Alliance. Instead, they were being orchestrated by Ibn al-Shaykh al-Libi, the commander for the Tora Bora fight and an al-Qaeda loyalist who was considered by the Americans to be one of the terrorist group’s most dangerous members. Yet here he was, ignoring his longtime leader and forging a policy of his own.

Over the past few days, al-Libi’s opinion of bin Laden had sunk. The vaunted jihadist leader was blithely putting his fighters in harm’s way while keeping himself at a healthy distance. Even when the three clusters of al-Qaeda fighters moved back into Tora Bora, bin Laden had seemed more concerned about his own self-preservation than that of his men and had implored al-Libi to lead his group. But al-Libi had refused. Instead, he chose to protect a squadron of untested al-Qaeda combatants by guiding them to the mountains.

Just as damning as bin Laden’s faintheartedness, in al-Libi’s mind, was his strategic ineptitude. By leading his men into a single location, the al-Qaeda leader had increased the risk of pulling back farther. If the fighters attempted a mass escape, al-Libi knew, they would have to move into the open, blundering their way toward Pakistan, potentially making them easy prey for the American bombers roaming the skies.