500 Days (48 page)

The agents sat with Zubaydah and spoke kindly to him. It took time to regain his trust, but finally, the relationship was restored and Zubaydah started talking again. He told the agents that he had heard about an Islamist with a Latino name who had plans to use a “dirty bomb” that would spread radiation over a small area inside the United States. Sheikh Mohammed had instructed the man to get a new passport in Jordan, then head to America for the attack.

The agents contacted the American embassy in Amman and asked officials to search their records for a Hispanic man who had recently applied for a passport.
The name José Padilla turned up. The embassy sent the photo on file back to Thailand, and Soufan showed it to Zubaydah.

“Is this the guy?” Soufan asked.

Zubaydah nodded. Padilla was the terrorist.

This breakthrough did nothing to persuade the CIA to change course. With Zubaydah no longer resistant to talking, Mitchell proclaimed, he could now be induced to spill more information under aggressive questioning.

The CIA took over. And again, Zubaydah went silent. Increasingly frustrated, the intelligence agents issued a murder threat.

“If one child dies in America and I find out you knew something about it,” one of the CIA officers shouted at Zubaydah, “I will personally cut your mother’s throat!”

The Yoo memo had specifically forbidden interrogators from telling a detainee that either he or another person would be killed. But a later review by CIA lawyers declared that the threat that Zubaydah’s mother would be killed was lawful. Grammatically, the sentence began with the subordinate conjunction
if.
That meant it was conditional. And that, the lawyers declared, was fine.

•  •  •  

The sequence never varied. The FBI used relationship building and Zubaydah talked. The CIA stepped back in with its harsh methods, and he stopped. Then the agency officers brought back the FBI and the cycle repeated itself.

None of this meant that rough questioning techniques didn’t work, Mitchell told the agency officers. They just needed to be more aggressive.

•  •  •  

Days later, John Rizzo, the acting general counsel at the CIA, telephoned Bellinger, the NSC legal advisor.

The agency had captured Abu Zubaydah, Rizzo explained, and was interrogating him overseas. They had already been using some severe tactics in questioning him, but nothing had worked. A psychological consultant was urging the interrogators to step up the intensity of the interrogations by using some rougher techniques, including waterboarding. But the CIA officers feared that if they followed the recommendations of the consultant, Jim Mitchell, they might face criminal charges.

The agency, Rizzo said, wanted the Justice Department to issue a formal decision that it would decline to prosecute any CIA interrogators for violating antitorture statutes in their questioning of Zubaydah.

Bellinger promised to set up a meeting with the Justice Department. The CIA could make its case directly to officials there.

•  •  •  

That Saturday, John Yoo was shopping when he received a call on his cell phone from the Justice Department Command Center. The official on the line told him that a meeting had been scheduled for 11:00
A.M.
that day in Bellinger’s office. The man offered no details before clicking off the line.

Yoo drove to the Eisenhower Executive Office Building across from the White House and headed upstairs. Bellinger was already there, along with a few men Yoo did not recognize.

“We have a problem,” Bellinger said. He nodded toward the other men in the room. “They’ll tell you about it.”

They were from the CIA. One of the men introduced himself only by a first name, which may or may not have been his real one. He was an average-looking guy, dressed in a blue button-down shirt without a tie.

They needed Yoo’s input, the official said. The agency had captured Abu Zubaydah, the operational planner for al-Qaeda, and CIA officers had been questioning him.

“He’s resistant to interrogation,” he said.

Resistant?
“What do you mean?” Yoo asked.

“For everything we do, he already has a countermove ready,” the official said. “It’s like playing a grand master in chess. He’s the most difficult person I’ve ever encountered.”

Zubaydah would talk sometimes, the official said, but never gave away anything worthwhile. And everyone at the agency knew this man had a treasure trove of knowledge about al-Qaeda. He was someone who could unquestionably help the United States deter terrorist attacks.

“If we can break him,” the official said, “it will be the greatest achievement in my career at the CIA.”

“Isn’t there some kind of truth serum?” Yoo asked.

“No, we don’t have one. We’ve never had one. People seem to think the Russians had one, but we don’t know if that’s for real.”

Okay. No truth serum. That’s just the movies.

“We may want to use more aggressive interrogation methods,” the official said. “And we need to know what’s legal and what’s not legal.”

Yoo looked at Bellinger. “Who’s allowed to know about this? Who can we
consult with? I mean, obviously, I can’t give you an opinion off the top of my head. I’m pretty sure this is a complicated issue.”

Secrecy was paramount, Bellinger cautioned. Yoo could inform Ashcroft and whatever colleagues in his office were needed to conduct the legal analysis. But no one else.

“Can we consult with the State Department?” Yoo asked. The top experts on the laws of war worked there.

Bellinger shook his head. “Access to this program is extremely restricted,” he said. “The State Department shouldn’t be informed.”

•  •  •  

Condoleezza Rice walked briskly into the White House Situation Room and took a seat at the head of the conference table. Other officials straggled in over the next few minutes.

“All right, let’s get started,” Rice said after everyone found a seat.

She nodded toward Tenet. “George believes that we need to do some things in the interrogations of terrorists to help gather information,” she said. She turned the floor over to him.

“We are facing a very dedicated adversary, and they have been trained on how to resist our interrogation techniques,” he said. “Now we have intelligence about specific possible threats that are potentially coming, and some of the people we’ve captured have knowledge of these threats.”

The types of people being targeted for murder by al-Qaeda were across the board, from schoolchildren to shoppers—all innocent, all in danger.

“The interrogations we’ve been conducting up to this point have not been sufficient to get the al-Qaeda members in our custody to give up the information they have about these threats,” Tenet continued. “And so, some of our experts in interrogation have put together a series of new techniques that they think might be more effective.”

Rizzo, the CIA lawyer, explained that he had already appealed to the Justice Department for a formal statement declining to prosecute agency officers who conducted harsh questioning. But no such assurance had been provided.

The interrogators were already taking risks with some of the less controversial techniques—forced nudity, slaps, exposure to cold, sleep deprivation—without legal clearance. But their most important capture, Abu Zubaydah, was still resisting. He had obviously gone through the training contained in the Manchester Manual, the CIA officials concluded. The officers needed greater leeway to wring information out of him.

There were a series of techniques that had been recommended by the agency’s psychological consultant, Tenet said. He passed around a document that contained a list of them—confining an interrogation subject in small boxes, taking advantage of his fears, forcing him to stand in uncomfortable positions for hours, extending the length of time he was deprived of sleep. The most aggressive, Tenet said, was a technique called waterboarding.

“Do we really need to do this?” Gonzales asked.

“Under the right circumstances to get the right information, yes,” Tenet said.

•  •  •  

As the discussion continued, Gonzales decided to let Bush know that the CIA had come in with an important request. But he had already concluded that the president shouldn’t be told much else.

Gonzales reached the Oval Office and stood in the doorway. Bush was working at his desk.

“Mr. President,” Gonzales said.

“Fredo!” Bush replied, using his nickname for the White House counsel.

Gonzales stepped into the room and sat down in a chair next to the president’s desk. He explained that Bush’s top aides were meeting downstairs in the Situation Room.

“Tenet is saying that the CIA needs to adopt some new interrogation techniques for al-Qaeda terrorists,” he explained. “There are some threats the agency knows about, and he thinks this is the best way to get the information.”

“Well, what are we talking about?” Bush asked.

“Mr. President, I think for your own protection you don’t need to know the details of what’s going on here,” Gonzales replied.

Bush paused, then gave a nod of understanding.

“All right,” he said. “Just make sure that these things are lawful.”

•  •  •  

Downstairs, the conversation had turned to the legality of the CIA’s requests. The Office of Legal Counsel, Ashcroft said, was already working on that analysis.

“All right, John,” Rice said. “But I’d like you to review their work personally.”

•  •  •  

Yoo reached a preliminary finding that certain of the CIA’s proposed tactics, such as confinement, were lawful. The analysis of others, like waterboarding, was going to take more time.

•  •  •  

Two dark wooden boxes were placed in a room at the secret prison where Zubaydah was confined. One looked something like a coffin; the other was much smaller.

Soufan saw the larger box and was horrified. His mind raced with questions and fears. Was the CIA planning to bury Zubaydah alive? He immediately confronted the agency interrogators.

“We’re the United States of America, and we don’t do that kind of thing!” he shouted. “Has anybody given you the legal authority to do what you’re doing?”

One of the officers brought out a document. “This has been approved at the highest levels in Washington,” he said, waving the paper in Soufan’s face. “These approvals are coming from Gonzales.”

The White House counsel.

Soufan didn’t care
who
had approved this; he wanted no part of it. He stormed off to a secure phone. His bosses at the FBI, he decided, needed to know what was happening.

•  •  •  

“I swear to God,” Soufan shouted, “I’m going to arrest these guys!”

On the other end of the line, Pasquale D’Amuro, the bureau’s assistant director for counterterrorism, spoke in measured tones, trying to calm Soufan. He understood his concerns, D’Amuro said. This wasn’t the way that the FBI would do the job. But the CIA was in charge.

Soufan, he said, should just come home. Gaudin would join him a few weeks later.

•  •  •  

When the time came to use the boxes, the interrogators started with the larger one, placing Zubaydah inside and putting a cover on top.

His movements were severely restricted. The heat was oppressive and Zubaydah found it difficult to breathe. Sweat, pressure, and friction combined to make it impossible for him to squirm into a comfortable position. He was left inside for up to eight hours at a time.

The smaller box was worse. It was shorter than Zubaydah, forcing him to crouch down as long as two hours. Once again, he could not move.

Over time, the CIA’s Office of Medical Services would deem that the cramped confinement technique should no longer be used. The problem: It was too much of a relief for the detainee, since being sealed inside the box
offered hours-long breaks from interrogation. This experimental, untested technique simply didn’t work.

•  •  •  

On the afternoon of May 8, two FBI agents from New York were hiding in a utility closet near U.S. Customs at Chicago’s O’Hare International Airport, preparing to confront a suspected terrorist.

Outside the door, a passenger who had just arrived from Zurich was speaking with Andy Ferreri, a customs agent. Ferreri asked the man for his passport and declaration form. He read the name on the documents.

José Padilla.
The American who had just been identified by Abu Zubaydah as an al-Qaeda terrorist planning to detonate a dirty bomb.

Ferreri searched Padilla’s belongings and found a wad of cash—$10,526. But Padilla had declared only $8,000.

“Sir, I’m going to have to confiscate this currency,” Ferreri said. He escorted Padilla about twenty yards to a conference room and asked him to sit down.

Ferreri left the room and walked to the utility closet. He went inside and told the two FBI agents—Russell Fincher and Craig Donnachie—about the cash Padilla had been carrying.

The investigators had flown in that day from New York, where they worked with the counterterrorism squad. Almost a dozen other Chicago-based FBI and customs agents had been assigned to help in the confrontation with Padilla, mostly by making sure he didn’t escape or hurt anyone.

After briefing the two agents, Ferreri took them to the conference room where Padilla was waiting. About eight other FBI and customs agents stood guard at the door.

Fincher and Donnachie went inside accompanied by two colleagues, R. J. Holley and Todd Schmitt. A long table surrounded by almost two dozen chairs dominated the room. Padilla had settled near one end.

Fincher sat down at Padilla’s left, while Donnachie took the chair to his right. Holley and Schmitt sat at the far end of the table; they would be only observers. Just before 3:15, the agents brought out their credentials.

“Mr. Padilla, my name is Russell Fincher, and I’m an FBI agent. This is Craig Donnachie, and he’s also an FBI agent, as are our colleagues at the other end of the table.”

He stared directly into Padilla’s eyes. “We need to ask you some questions,” he said.

“All right.”

“We’ve been made aware of the ten thousand dollars that you were carrying into the country. Would you be willing to talk to me about where it came from and what you were planning to do with it?”