500 Days (39 page)

Buffam consulted another officer with the Mounties. They agreed—the meeting with Arar should be canceled if they couldn’t use his comments in a prosecution. It was a waste of time to question him just to gather information.

•  •  •  

The final debate about the Geneva Conventions issue was scheduled to be held at a meeting of the National Security Council. In preparation, officials were pulling together memos in support of their positions.

The day after returning from Guantanamo, Yoo had sent Gonzales a new thirty-seven-page opinion; it contained modest changes, but the document still amounted to a robust argument that the conventions were irrelevant in the war against the Taliban and al-Qaeda.

Memos from other administration officials—including Powell—hadn’t arrived yet, but Gonzales decided to put together a document summarizing the various arguments so that Bush wouldn’t be caught off guard at the meeting. On January 25, he turned the job of preparing the summary memo over to his deputy, Flanigan, who in turn sought Addington’s help.

Flanigan was already at his computer working on a first draft when Addington arrived, placed a chair behind him, and started reading. At first, Addington made some suggestions while Flanigan did most of the writing. When he finished, Flanigan sent an electronic copy of the memo to Addington for an edit.

The draft strongly supported Bush’s original position. It presented a truncated—and inaccurate—representation of Powell’s arguments along with a lengthy series of bullet points about why Bush had been right.

The legal opinion of the Justice Department, the memo said, was definitive: Bush had the constitutional power to deem the conventions inapplicable, and
such a decision was allowable under the treaties. From a policy perspective, this was a new kind of war, one never conceived by the original negotiators of the conventions, and Bush could not allow himself to be locked into an inflexible system that didn’t apply to the current situation.

Addington reviewed that portion of the memo. Too many people seemed to be unaware of the scope of Geneva’s requirements. He wanted some way to emphasize how off the mark the conventions were in this new world.

He started typing.

“This new paradigm renders obsolete Geneva’s strict limitations on the questioning of enemy prisoners,” he wrote, “and renders quaint some of its provisions requiring the captured enemy to be afforded such things as commissary privileges, scrip [i.e., advances in monthly pay], athletic uniforms and scientific instruments.”

That was good, he thought. Anyone wondering why the conventions didn’t fit with this war would now have to contemplate the al-Qaeda football team marching to the grill for some bin Laden burgers.

•  •  •  

By 3:30 that afternoon, Flanigan and Addington were running up against a deadline. Gonzales had promised to have a draft of the memo sent to other officials, particularly Powell, and the time had come to ship out what had been written so far.

Flanigan printed Addington’s edited version and handed it off to Gonzales, who wrote in a few revisions by hand. Flanigan typed in the changes, printed the draft again, then sent it to be faxed from the Situation Room.

He took a moment to catch his breath, then gave Addington’s edit a careful read. While going over the second page, he winced.

“. . .
and renders quaint some of its provisions
. . .”

A little too snide, Flanigan thought. He liked the idea Addington was trying to convey, but hated the words. He edited out the line.

•  •  •  

Powell was annoyed. Gonzales’s draft memo was wrong, or at least misleading.

The memo said that Powell wanted Bush to rule that the Geneva Conventions applied to both al-Qaeda and the Taliban, but gave no further explanation what that meant. Then it suggested Powell was willing to settle on an agreement whereby al-Qaeda and Taliban fighters could be determined not to qualify as POWs under the conventions, but only on a case-by-case basis.

Completely false. Powell never said any such thing. But that was why he
needed to see the draft. Gonzales wanted Powell’s comments, and now he could try to get the memo to be accurate.

His comments filled up a one-page, single-spaced memo. At the top, he rewrote the summary of his position.

The Secretary of State believes that al Qaeda terrorists as a group are not entitled to POW status and that Taliban fighters could be determined not to be POW’s either as a group or on a case-by-case basis.

Somehow, his argument had just slid by others in the administration. Powell was not demanding that
anyone
to be granted POW status. He just wanted Bush to publicly proclaim that the Geneva accords applied to the Afghan War. That’s all. Under Geneva, the administration would be in its right to declare that neither group qualified as POWs. There was no need to take the extreme step of announcing that the United States was going to ignore the conventions, Powell thought, when the same result could be reached by following them.

From there, Powell tore at the underpinning of the memo’s logic. The “failed state” argument that had been advanced by Yoo and Delahunty was problematic—it contradicted the policies of the United States and the international community, which consistently held Afghanistan to its treaty obligations and identified it as a party to the Geneva Conventions. If Afghanistan was no longer a sovereign nation, then there could be no consequences for its failure to abide by
any
treaties. Again, a serious and unnecessary outcome, growing from a flawed legal interpretation.

Powell attached his summary comments to his own letter for Gonzales. In it, he presented his real argument. There were two choices—the president could choose to determine that Geneva did not apply to the Afghan War and deny POW status to the Taliban and al-Qaeda. Or the president could determine that Geneva
did
apply to the Afghan War and deny POW status to the Taliban and al-Qaeda.

Both options, he wrote, provided the same flexibility on how detainees were treated, including with respect to interrogation, detention, and trials. Both allowed the administration to withhold the benefits and privileges of POW status. Neither option entailed significant risk that American officials would be prosecuted under domestic law on the grounds that they had committed a grave breach of the conventions.

By applying Geneva to the Afghan War, the president would be
continuing to espouse the country’s unwavering support for the conventions. It would preserve America’s credibility and moral authority, provide the strongest legal foundation for the administration’s actions, and maintain the POW status for American soldiers.

His argument, Powell thought, was hard to refute.

•  •  •  

The next morning, Gonzales checked his BlackBerry and saw that the
Washington Times
had an exclusive story on its front page.

POWELL WANTS DETAINEES TO BE DECLARED POWS
, the headline read.
MEMO SHOWS DIFFERENCES WITH WHITE HOUSE
.

A memo. It was Gonzales’s draft memo, the one he was preparing for Bush. The one that incorrectly portrayed Powell as pushing for al-Qaeda and Taliban detainees to be deemed POWs. Now that error had been publicized as fact.

Worse, this was legal advice to the president from the White House counsel. This wasn’t just some policy memo; it was protected by attorney-client privilege. And someone had handed it over to the press.

Gonzales was furious. The draft had been circulated to the State Department and the Pentagon. It had gone out the previous afternoon specifically seeking everyone’s comments, so that it could be revised. A new version already existed, and there was at least one more rewrite to go. What was the purpose of leaking a work in progress, particularly when it was wrong?

He placed some calls to determine who had had access to the draft memo. The answer stunned him—once a document went into regular circulation, the number of officials able to get their hands on it was very large.

This was a harsh lesson for Gonzales. Washington played a type of hardball that was new for him. He couldn’t drop his guard or assume that everyone was on the same team. He would have to be more careful.

The final version of the memo went directly to the president. No one on the staff other than Gonzales, Flanigan, and Addington was allowed to even hold a copy.

•  •  •  

That same day in Damascus, guards entered the cell of Ahmad El-Maati and once again pulled a hood over his head.

His interrogation in Syria was complete—he had confessed to the bogus plot to bomb the Canadian Parliament, he had implicated Abdullah Almalki and Maher Arar as al-Qaeda members, he had admitted that the map found in
his truck so many months before was part of a terrorist plan. All lies, but the torture stopped.

Now he was rushed to an airport and put on a plane. He prayed that he was being taken back to Canada but soon realized his torment was not over. The jet landed in Cairo, where he was handed off to the Egyptians. Once again, he was imprisoned and brought into a room for interrogation. When asked about his confessions in Syria, El-Maati tried to persuade his new captors that he had been lying. In response, they beat him.

At one point El-Maati could hear the screams of a woman nearby, obviously being subjected to torture. One of his interrogators leaned toward him, smiling.

“That’s your sister in the next room,” he said. “We’re about to rape her.”

•  •  •  

In Building 1425 at Fort Detrick, an FBI agent sat across from Bruce Ivins, conducting his second interview with the anthrax researcher. The bacteria contained in the Daschle letter had been identified as a virulent form called the Ames strain, and investigators had turned to a handful of labs and researchers around the country that held samples of the microbe. Ivins was one of those scientists.

Ivins lectured the agent about the history of the Ames strain, explaining that the researchers in Fort Meade had first obtained it around 1981. He provided some information about a number of labs with the bacteria.

Then he offered suggestions of others the FBI should interview. There were plenty of people who had raised his suspicions, he said, some of whom had even talked about how to weaponize anthrax. He gave a list of names. The FBI, he said, should take a close look at those people. One of them might be the anthrax killer

•  •  •  

The House sergeant at arms stood just inside the doors of the House chamber, facing the rostrum.

“Mr. Speaker!” he called out. “The president of the United States!”

Hundreds of politicians and government officials stood and applauded as Bush made his way down the center aisle in the chamber of the House of Representatives. He stopped frequently, shaking hands and pointing through the crowds in an informal greeting to certain members of Congress.

It was just after nine o’clock on January 29, the night of Bush’s first State of the Union address. Not everyone in the administration was in attendance; a large group of officials, including a cabinet officer, was outside of Washington in a secure location. They were the shadow government for the evening, the
people who would step in as the new administration if terrorists somehow managed to kill everyone attending the president’s speech.

Bush took his place at the clerk’s desk, then turned around and handed manila envelopes containing copies of his speech to Cheney and Tom Daschle, the House Speaker.

After more applause, Bush began his address. Despite all of the troubles facing the country, he said, the state of the union had never been stronger.

“The American flag flies again over our embassy in Kabul,” he said. “Terrorists who once occupied Afghanistan now occupy cells at Guantanamo Bay. And terrorist leaders who urged followers to sacrifice their lives are running for their own.”

He provided a litany of the American’s actions and successes in taking on terrorists. While the most visible military action was in Afghanistan, he said, the United States was acting elsewhere. American troops were in the Philippines, providing counterterrorist training to that country’s military. The navy was patrolling off the coast of Africa to prevent the establishment of terrorist camps in Somalia.

And specific threats had been quelled. “Our soldiers, working with the Bosnian government, seized terrorists who were plotting to bomb our embassy,” he said.

•  •  •  

Three days later, on the morning of February 1, members of the war council arrived at the Situation Room for another meeting about the Geneva issue—this time with the president.

Everyone stood when Bush walked into the room. He said a few pleasantries, then took a seat. He already had a good sense of what was coming; Gonzales had just briefed him again on everyone’s opinion.

After Condoleezza Rice opened the meeting, Powell calmly stated his case. He laid out the two choices he had described in his memo, underscoring that Bush could accomplish everything he wanted without abandoning the conventions.

“We have an image to uphold around the world,” Powell said. “If we don’t do this, it will make it much more difficult for us to try and encourage other countries to treat people humanely.”

Every day, Powell said, they were working on persuading more nations to work with the United States in the war on terror. Deciding not to apply Geneva could make that job much more difficult.

General Pace spoke next, giving his now-familiar refrain about the military’s
commitment to the accords. The discussion went around the table, and then Cheney spoke.

“This is a matter of law,” he said. The Taliban and al-Qaeda were not lawful combatants; they didn’t follow the rules of war.

“We all agree that they’ll be treated humanely,” Cheney said, “But we don’t want to tie our hands. We need to preserve flexibility. And under the law, we can do that.”

After about forty-five minutes, Bush gave a nod and thanked everyone for their input. The discussion was over.

•  •  •  

About an hour later, Ashcroft called a meeting in his office for a group of about half a dozen department lawyers. Powell, he told them, had written a memo for Bush about Geneva before the NSC meeting. Now he wanted to write something, too.