500 Days (33 page)

Hundreds of al-Qaeda and Taliban fighters were being captured in Afghanistan. The president had already decided how they would be tried; top advisors were debating where they should be held. The open question remaining: How should they be treated?

At the center of the debate were the Geneva Conventions, a group of four treaties that set international standards for the humanitarian treatment of enemy soldiers and civilians during wartime. The treaties were adopted over many decades, the natural outcome of the horrors of war. At one time, abuse of enemy soldiers and civilians was something that took place in secret—rumored, but unseen and often unreported. With the growth of international communications and the evolution of increasingly brutal weaponry, images and tales of ever more gruesome abuse came out of the shadows, shocking the public consciousness. Nations decided that all was not fair in war, that rules had to be established to ensure that anyone captured by the enemy was treated humanely.

Then came World War II and with it the onset of some of history’s most vicious and abhorrent cruelty during international hostilities. The Holocaust, the Bataan death march, the Malmédy massacre, the Katyn Forest massacre—these crimes demonstrated a willingness on the part of combatants to torture and murder wantonly. In response, the conventions were updated and expanded.

In the years that followed, three parts of the revised conventions grew to particular significance. Article 4 of the Third Geneva Convention spelled out who would qualify for prisoner-of-war status during a conflict. In turn,
Common Article 3, which appears in each of the treaties, governed the treatment of prisoners of war.

That did not mean, however, that people who did not qualify as prisoners of war could be abused. The Fourth Geneva Convention dictated requirements for humane treatment of civilians. That left one question seemingly unanswered: Do fighters who are not part of a regular army and who violate the laws of war—placing them outside the requirements for POW status—qualify for protection under the Fourth Convention? While that had been a subject of debate for some time, in 1998 a United Nations war crimes tribunal stated that
everyone
held by an enemy during a military conflict fell under the protections of either the Third Convention or the Fourth Convention.

At bottom, though, for all the apparent complexity, the conventions had long been interpreted broadly to mean, simply, that people captured during wartime, regardless of status, were to be treated humanely and with dignity.

In the United States, a failure to apply the conventions properly was fraught with legal peril for administration officials. In 1996, overwhelming majorities of both houses of Congress approved the War Crimes Act, which made it illegal for any nation—including the United States—to commit a “grave breach” of the Geneva Conventions. The punishment for violating the law could be life imprisonment, unless the breach led to someone’s death. If so, the defendant could be executed.

These were the issues on the table at the meeting convened for this day by Gonzales. The primary question: Should al-Qaeda members or the Taliban—or both—be granted prisoner-of-war status, and if not, what rights would they then have?

That required resolving different perceptions and interpretations of the conventions throughout the administration. Gonzales brought together everyone with an interest in the outcome—representatives from the Joint Chiefs of Staff, the Pentagon, the CIA, the State Department, the NSC, and the Justice Department.

While he fell far lower than almost everyone else in the room on the bureaucratic ladder, John Yoo was easily the most important person there. Weeks before, Gonzales had instructed him to prepare a memo that would provide the analysis of both the conventions and the War Crimes Act which Bush could then use to reach a decision. All the other officials there could only make suggestions; it was Yoo who would ultimately put everything on paper.

Gonzales took his seat at the center of the table.

“I’ve asked you all here to discuss the options under the laws of war,” he said. “Because we’re definitely capturing people, and we need to know how we’re supposed to treat them.”

The first to respond was William Taft IV, the general counsel at the State Department. Al-Qaeda, he said, was an easier issue—no one thinks terrorists are prisoners of war. But Taliban fighters were a different matter.

“The plain language of Geneva demands that they be granted POW status,” he said. “The Taliban is the government in Afghanistan. The Taliban we’re capturing are their armed forces.”

Yoo spoke next. He agreed that the status of al-Qaeda under the Geneva Conventions was an easy call—it was a criminal organization, not a nation. The issues involving the Taliban, on the other hand, were more complex. They were not the leaders of Afghanistan. Indeed, he said, the State Department had maintained for years that there was no central Afghani government, just groups of warring factions. The Taliban controlled only 90 percent of the country, and its borders of authority were continually shifting. They were incapable of maintaining government institutions or law and order. Civil society had been destabilized by violence.

“Throughout the time of Taliban’s existence, Afghanistan has been incapable of meeting the conditions and responsibilities of a sovereign nation,” he said. “It is a failed state, and the United States can’t apply a treaty to a country that effectively doesn’t exist.”

Taft strongly disagreed. The United States couldn’t simply analyze its way out of the obligations of the treaty by redefining the enemy.

“This country had consistently applied Geneva in every conflict for the past fifty years,” he said. Changing that now would contradict the position of every nation that signed the treaties.

From the other side of the table came another objection, this time from Jane Dalton, the legal counsel to the chairman of the Joint Chiefs of Staff.

“Our position is that everyone, al-Qaeda and the Taliban, should be treated as POWs,” she said. “Merely from a policy point of view, we should give them protections because we want our soldiers to have protections.”

That was unrealistic, one official argued. Neither the Taliban nor al-Qaeda was going to treat the American military in accordance with the conventions. Any soldier who was caught would be killed, probably by beheading.

The debate continued for more than an hour, and by the end, no one had
given an inch; each agency had simply reiterated its original stance. Gonzales thanked everyone for coming. He promised that the discussion would continue.

•  •  •  

Leaflets fell from the sky like snowflakes, littering the ground around the border between Pakistan and Afghanistan.

Some showed a drawing of a man with a disheveled beard and wearing a
hijab
head covering. To the right of that, a sketch of a large pile of money. Then the third and final image depicted the same man, this time behind prison bars. The leaflet had been designed by the Psychological Operations unit of the U.S. Army Special Operations Command to communicate a message for illiterate Afghanis and Pakistanis: Anyone who turned in members of the Taliban or al-Qaeda would be paid.

The written versions of the pamphlets were much clearer. “You can receive millions of dollars for helping the anti-Taliban force catch al-Qaeda and Taliban murderers,” one read. “This is enough money to take care of your family, your village, your tribe for the rest of your life.”

The United States was as good as its word and started shelling out bounties. A member of al-Qaeda brought in as much as $20,000; one of the Taliban, about $5,000. The money was an enormous incentive to turn over somebody—
anybody
—to the American military.

In the desperately poor country crippled by centuries of bitter factionalism, tribes turned on tribes, Pakistanis on Arabs, neighbors on neighbors. Around the country, hundreds of farmers, shepherds, ne’er-do-wells, and nobodies were snatched up by locals, tossed into trucks, and driven to the nearest American military unit. Cash filled outstretched palms, and the new detainees were thrown into cells. Al-Qaeda and Taliban members were part of the mix, but no one in the military or intelligence community knew how to tell the terrorists apart from the innocent.

•  •  •  

In Paris, American Airlines flight 63 pulled onto the runway at Charles de Gaulle International Airport just before 11:45 on the morning of December 22. The Miami-bound plane was already an hour behind schedule, but few of the almost 180 passengers on board grumbled about the delay. With the images of 9/11 still fresh, there were more jitters than complaints.

Close to three hours later, as the plane flew over the Atlantic, the man in seat
29H stood up and made his way to the lavatory in the back. In the adjoining seat, 29J, a man with long hair and a scraggly beard glanced over his shoulder, watching until the other traveler passed a video monitor at row 33.

The man, Richard Reid, bent over, removed his ankle-high shoes, and placed them on his lap. The waffle-patterned cushioning cells at the bottom of the hiking shoes were packed with plastic explosives. Fuses laced with black powder ran from an improvised detonator with the unattached end at the inner sole.

Reid took the right shoe in his hand and pulled out the fuse. He opened a book of matches, lit one, and held it to the blackened cord.

A flight attendant, Hermis Moutardier, was walking down the aisle, picking up trays from the meal service. Passengers mentioned that they smelled an odor, and Moutardier detected a whiff of sulfur. She walked past row 29 and saw Reid bent over, a lit match in his hand. “Sir,” she said, “you have to extinguish that. Smoking is not allowed.”

Reid looked up at Moutardier and promised to stop. He placed the burning side of the match in his mouth, extinguishing the flame.

Unnerved, Moutardier walked away to find a member of the flight crew so that she could report what she had just seen. A few minutes later, she returned and saw Reid bending down in his seat again.

“Excuse me,” she said, sounding angry. “What are you doing?”

Then she saw it. Reid had a shoe between his legs, and was holding a burning match to a cord coming out near the tongue. It was a fuse.

Moutardier reached down and grabbed Reid. He pushed away. She tried again, and this time he pushed so hard that she fell back against the armrest across the aisle. For a moment she thought Reid might not be stopped.

I’m going to die.

She jumped up and tore down the aisle toward Cristina Jones, a flight attendant who was working in the galley.

“Get him!” Moutardier shouted. “Go!”

No mention of the shoe or the match. But Jones ran back toward Reid’s seat and realized something terrible was happening. Even though she saw only that this passenger had his back to the aisle, she knew he was trying to destroy the plane and kill them all.

“Stop it!” she yelled, grabbing Reid around the upper body.

He bent his head down and bit Jones’s hand, and she let out a scream. Other passengers heard the commotion and came running. Jones wanted to get out of the way, but Reid wouldn’t open his mouth, as if he were trying to rip the flesh
off her hand. As the other passengers finally restrained him, Reid let go. Jones, in shock, reverted to her usual duties; she lifted and fastened the tray table in the seat next to Reid.

Fearful that there might still be a lit match, Moutardier returned carrying bottles of Evian water that she and a few passengers poured all over Reid. Within minutes, Reid was restrained with plastic handcuffs, seat-belt extensions on his feet, plus belts and headphones wrapped around his body. Valium was brought out of an in-flight kit and administered by a doctor on board.

Reid did not lose consciousness. A flight attendant later offered him water; he bared his teeth, saying nothing. He tried to get loose, but failed. Finally, he gave up and started to rock and pray.

•  •  •  

On a tree-shaded street in the Philadelphia suburb of Wynnewood, a smattering of academic psychologists gathered with law enforcement and intelligence officers to brainstorm about Islamic extremism.

They were at the home of Dr. Martin E. P. Seligman, a renowned psychologist who in 1967 conducted foundational research involving a theory called “learned helplessness.” Experiments by Seligman and a colleague appeared to demonstrate that experiences of pain or other distress beyond subjects’ control could drive them into a state of emotional surrender. The research led to fundamental reevaluations of depression and won Seligman international acclaim.

The meeting on this evening focused on what drove some Muslims to fanaticism and what measures could be taken to counter the trend. At a break in the discussion, a man approached Seligman with his hand extended. He introduced himself as Dr. Jim Mitchell, a psychologist who had recently retired from a military survival-training program called Survival, Evasion, Resistance, Escape, or SERE.

In the ensuing conversation, Mitchell heaped praise on the older psychologist for his groundbreaking work. His compliments struck Seligman as a bit effusive, perhaps even bewildering. Still, after all these years, it lifted his spirits to hear a colleague express such admiration for his work.

Years later, Seligman’s good feelings about that night were replaced by grief and horror when he discovered that, even as the psychologist was lauding him, Mitchell had been at work preparing to use the findings on learned helplessness to justify an American program of brutal interrogation for suspected terrorists.

•  •  •  

For the most part, the experts on interrogation in military intelligence and at the CIA were old, retired, or dead. With the collapse of the Soviet Union and an interlude of relative peace that had lasted since the Vietnam War’s end in 1975, captured enemy combatants had become all but extinct. By the mid-1990s, intelligence and military interrogations were a subject more of academic study than of practical application.

But now the emerging terror wars would be changing all that. The agency and the military needed people skilled in the art of getting the enemy to talk. Al-Qaeda members were almost certainly going to be the largest source of intelligence about the group but only if someone knew how to get them to spill the information.