500 Days (38 page)

The briefing persuaded Bush. That day, he decided that Common Article Three did not apply to the conflict with either the Taliban or al-Qaeda.

•  •  •  

Rumsfeld got the word out to the military the next morning, a Saturday, in a memo to General Pace.

“The United States has determined that al Qaeda and Taliban individuals under the control of the Defense Department are not entitled to prisoner of war status for purposes of the Geneva Conventions of 1949.”

However, he wrote, commanders were to make sure that the detainees were treated humanely and “to the extent appropriate and consistent with military necessity” in a manner in line with the conventions.

The directive, Rumsfeld wrote, was to be sent immediately to all combatant commanders, who in turn were ordered to provide it to their subordinate commanders, including the head of Task Force 160, the military unit responsible for the care of detainees at Guantanamo. The memo was transmitted that afternoon to officers in the field by secure telex. By morning, those officers began notifying the troops. The standards of the Geneva Conventions that soldiers had been taught almost from the first moment they joined the military were no longer fully in effect.

•  •  •  

Within hours, it became clear that the debate about the Geneva Conventions hadn’t quite ended. When Powell heard Bush’s decision, he reached out to the president, urging him to reconsider. There were options that had not been presented to Bush, he said, and downsides of the decision that had gone unexplored.

None of Bush’s close advisors could ever remember the president changing his mind once he made a decision. But given Powell’s impassioned plea, the president agreed to reopen the discussion.

•  •  •  

“Where’s bin Laden?” the CIA officer barked.

Al-Libi said he didn’t know, an answer he knew carried severe risks. From the moment when he had been snatched away from Bagram Air Base, his captors had threatened that they were going to take him to Cairo for questioning, a terrifying prospect. The Egyptians were widely known as brutal interrogators who resorted to horrific torture if they didn’t like a prisoner’s answers.

Now he was being questioned by the Americans while on board the USS
Bataan,
and it was clear that they didn’t believe him. What chance would he have of persuading the Egyptians?

The CIA officers told al-Libi to remove his socks and gloves, then put him onto the floor. The room was freezing, but that was nothing compared with what might happen to him in Egypt. After about fifteen minutes, the interrogators brought him back up and put him into a chair.

By then, al-Libi had decided—he would tell the Americans what they wanted to hear. Maybe if he lied, they might change their minds about sending him to Cairo.

Yes, he told them, he was a member of al-Qaeda, and proceeded to recite names he had already told the FBI. The American interrogators eventually came back to the issue of Iraq. What were the connections? How was al-Qaeda tied to Saddam Hussein?

There might be training of al-Qaeda fighters in Iraq, al-Libi said. An extremist named Abu Abdullah had told him that a senior al-Qaeda leader had sent him to Iraq three times since 1997 so he could be trained in the use of poisons and mustard gas.

As al-Libi fabricated his stories, the treatment from his interrogators improved. But it still wasn’t enough. He was flown to Egypt a few days later.

•  •  •  

No one in the government could reasonably argue that he didn’t know what would happen to al-Libi in Cairo. CIA computers were bursting with voluminous files about the brutal techniques of torture employed by the Egyptians.

The agency knew from a source in the country’s security service that twelve suspects had been tortured to death by authorities since 2000. The CIA files revealed that subjects of interrogation were taken to the offices of the State Security Investigations Services, where they were handcuffed, blindfolded, and abused to extract information and confessions. Suspects were electrocuted, doused in cold water, beaten with metal rods, raped, suspended in the air for hours by ropes that pulled their tied hands behind their backs—the list of inventive cruelty was endless.

Now the Egyptians would be employing their brutal skills on al-Libi, searching for more secrets about al-Qaeda, including its connections to Iraq that the Americans considered undeniable.

•  •  •  

A team of administration lawyers boarded a Gulfstream jet at Andrews Air Force Base two days later for their first trip to the Guantanamo Bay detention camp.

On the way down, Gonzales approached John Yoo and Will Taft, legal advisor to the State Department. The stalemate about the Geneva Conventions decision had to be resolved. Given that they had some time on their hands, he wanted them to hammer out their differences.

“Figure out a compromise,” Gonzales said.

The two lawyers sat beside each other, with Taft on the aisle and Yoo at the window. One of them brought out a pen and paper and started taking notes as they spoke.

Yoo restated his argument, with Taft at first only asking questions. When Yoo finished, Taft shook his head.

“I don’t agree with your ‘failed state’ analysis,” he said. “And you’re hanging a lot on that one definition.”

Maybe, Yoo said, they were handling this wrong. Even if Afghanistan was not a failed state, there were other reasons to deny the Taliban POW status—they didn’t follow the laws of war, for example. There was evidence that they had become so thoroughly intertwined with al-Qaeda that they were not so much a government as an extension of the terrorist organization. That alone was reason to justify treating them as unlawful combatants.

“The president can go two possible routes,” Yoo said. “We could include both options.”

Yoo promised to send the next draft of his memo over to the State Department and try to incorporate Taft’s position.

•  •  •  

“Gentlemen, welcome to Guantanamo Bay.”

Brigadier General Michael Lehnert smiled as he greeted the group of lawyers who had just joined him in a meeting room at the naval station. Everyone found a seat, the lights were dimmed, and Lehnert began a PowerPoint presentation about the detention center.

An image was projected on the screen. “Guantanamo Bay,” it read. “The least worst place.”

Everyone laughed. Rumsfeld said those words at a recent press conference, when a reporter asked what made Guantanamo the best location to hold the detainees.

“Any day, we’re going to have T-shirts made up with that on it,” Lehnert joked. The soldiers were clearly proud of Rumsfeld’s nickname for the base.

From there, Lehnert laid out the plans for the detention center. The PowerPoint displayed an image of Camp X-Ray.

“We don’t have a new facility, but here’s what we’re doing with the existing facility,” he said.

The next image. Drawings of a new camp.

“Here’s what we’re going to build, what it’s going to look like,” Lehnert said.

Then, the basic statistics. How many detainees could X-Ray hold, how many
were already there, how long until the new camps were built. From there, it was on to the tour. An aide to Lehnert escorted them to old empty cages made from chain-link fencing.

“We used these to hold the Haitians back in the 1990s,” the aide said. “We don’t have enough space otherwise.”

“How do you know they’re still secure?” one of the lawyers asked. “It’s been ten years since they were used.”

“Simple. We locked a couple of our guys in there and told them that if they could get out, they could have all the beer they wanted. They were shaking it and banging it, and they couldn’t get out. So, yeah, I think they’re secure.”

The group walked around the holding area, most of the lawyers averting their eyes from detainees who were sitting cross-legged inside their cells.

“We’re trying to emphasize safety,” the aide said. “No one’s allowed to be alone with a detainee. They’re constantly under observation from the watchtower. There are guard dogs. Last thing we want is for one of these guys to try and hurt somebody.”

None of the marines on base questioned whether these were dangerous men. “The first guy who got here, when he landed, started shouting that he wanted to kill Americans,” the aide said. “We’re not going to let that happen. There are always people watching to make sure that the detainees don’t surprise anybody.”

The tour ended, the lawyers ate lunch, and then they returned to the jet. As they took their seats, one of them chuckled.

“Just a few weeks ago, those people were fighting in Afghanistan,” he said. “And now look. They’re all sitting back here.”

Everyone agreed—this was a moment to be happy. The administration was taking down the enemy.

The plane took off. As it was winging its way over the Caribbean, Addington approached Gonzales. Under the commissions order, Bush was supposed to designate each person who was to be tried before a military tribunal. But no one at Guantanamo was going to be heading into the American courts.

“I think you should seek a blanket designation of all of the detainees being sent to Guantanamo as eligible for trial under the president’s order,” Addington said.

Gonzales agreed.

•  •  •  

The intelligence was sketchy. A detainee had told American interrogators about a man known as Sufaat—they hadn’t yet divined his full name—who was
rumored to be running al-Qaeda’s biological weapons program. The previous summer, members of the group had helped Sufaat move laboratory equipment from Karachi to Kandahar, and while no one was told why al-Qaeda needed the sophisticated material, there was gossip that it was being used to grow the bacteria that cause anthrax. When the anthrax attacks began in the United States, at least one of the men involved in transporting the equipment believed that al-Qaeda was striking America with Sufaat’s microbes.

The CIA ran the name through its bulging list of al-Qaeda members and associates. There were more than a few “Sufaats,” so there was no telling who, if any of them, was the right man.

The raw intelligence was included in the threat matrix report, delivered through the national security system. There were strong reasons to suspect, administration officials concluded, that al-Qaeda was behind the anthrax mailings.

Then, another scrap of information: Sufaat had fled Afghanistan for Pakistan to set up a new anthrax lab. The Americans believed they had even learned the location where the experiments were being conducted. FBI agents involved in the investigation of the anthrax attacks headed to Pakistan and searched for the laboratory.

They were close to the truth. Sufaat was the researcher responsible for al-Qaeda’s anthrax program, he had fled from Afghanistan to Pakistan, and he had resumed his work there. But the information divined by the Americans about where he was hiding was wrong.

The FBI agents returned to the United States, convinced that the lab was in some part of Pakistan. They just didn’t know where.

•  •  •  

Canadian authorities fanned out across Ottawa on the morning of January 22, conducting searches and interviews in their continuing investigation of Maher Arar and Abdullah Almalki.

At that point neither man was in the country. Almalki had traveled to Malaysia with his wife, children, and parents to visit his wife’s family. Arar was in Tunisia to attend to his father-in-law, who was ill. His wife, Monia Mazigh, was pregnant and couldn’t make the trip.

At 7:30
A.M.
, two Mounties arrived at Arar’s apartment in Nepean, a city adjacent to Ottawa. Corporal Randy Buffam knocked on the door and Mazigh answered. Buffam and his colleague identified themselves.

“Could I speak to Maher Arar?” Buffam asked.

“He is not home.”

There was a moment’s pause. “Where is he?”

“Abroad.”

“What do you mean by abroad?”

“Overseas.”

“How long has he been gone?”

“He’s been away for three weeks.”

Mazigh grew increasingly uncomfortable. She had no idea why these men were at her door or what they wanted with her husband.

“How long until he returns?”

“Maybe three days.”

“Whereabouts is he overseas?”

“Tunisia.”

This wasn’t going anywhere. Buffam left his business card and asked Mazigh to have her husband call.

In a different part of town, the Mounties were questioning Almalki’s brother. They wanted to know about the radios that Almalki’s company, Dawn Services, was selling to a Pakistan corporation. Similar radios had been found in Afghanistan—not necessarily the same radios, just the same make and model. Still, they believed Almalki might have been the one who was shipping the technology to al-Qaeda. The brother knew nothing, and the Mounties left.

As the years passed, the Mounties would conduct innumerable interviews trying to connect Almalki’s radios to the ones found in Afghanistan. But they would never check serial numbers against those in Almalki’s shipping documents. They wouldn’t even contact Microelectronics, the Pakistani company that Almalki had told them was his customer. Officials with Microelectronics later said they would have gladly confirmed their purchases from Almalki if someone had just asked.

•  •  •  

Arar telephoned Canadian officials from Tunisia later that day and left a voice mail. Why, he demanded, were the Mounties going to his apartment so early in the morning without warning? They had disturbed his pregnant wife.

Buffam called back and for several days they traded calls until Arar returned to Ottawa. The officer reached him there and asked him to come in for an interview.

“For what reason?” Arar asked. “How did you get my name?”

He couldn’t discuss an ongoing investigation over the phone, Buffam said.
“We’d like to meet you in person to simply clarify some issues which have surfaced as a result of our inquiries.”

Arar said that he had just returned from Tunisia and could not meet Buffam until the next day.

The call unnerved Arar. He decided that, if he was going to be questioned by the police, he wanted a lawyer there. He telephoned Michael Edelson, who agreed to meet with Arar. The lawyer immediately called Buffam and left him a voice mail. He said that he was representing Arar, and if the police wanted to speak to his client, they needed to go through him. Moreover, Edelson said that if he arranged for officers to speak with Arar, his client’s statements couldn’t be used against him in any future legal proceeding. The interview would be used to provide whatever clarification was needed. Nothing more.