500 Days (68 page)

The Beaver analysis and the Phifer memo were sent to General Dunlavey, the commander of the intelligence unit at Guantanamo. He signed off on the proposal, and forwarded it to the SOUTHCOM commander.

In a cover memo, Dunlavey, who was just days from being replaced at Guantanamo, wrote that the proposed methods would make it easier for interrogators to extract information from detainees.

And, based on Beaver’s analysis, he wrote, “I have concluded that these techniques do not violate U.S. or international laws.”

•  •  •  

A video teleconference over a secure satellite link was set up that week between Guantanamo and Washington. By then, the working relationship of FBI and military intelligence had frayed beyond repair, with each side arguing that the other had no clue how to question al-Qahtani.

This call was the chance for both sides to make their case. Almost everyone directly involved with interrogation issues was either on the line or in the room—officials from the Pentagon, the CIA, and the Justice Department; law enforcement agents; and Major General Geoffrey Miller, who had just been named to replace Dunlavey.

The military interrogators were preening—after many hours of questioning, they bragged, al-Qahtani had blurted out the name “Mohammed Atta.” A real breakthrough, they asserted, and indisputable proof that harsh tactics worked.

Ridiculous, an FBI psychologist replied. Al-Qahtani had yelled out a name that had been on the front pages of every newspaper in the world and only
because he wanted the interrogators to let him eat and go to the bathroom. That was hardly “intelligence.”

Lieutenant Colonel Phifer described the new tactics that he wanted approved, saying they would build on the military’s already impressive achievements.

“The aggressive approach we’ve used up until now has already produced some useful intelligence,” Phifer said. He began to tick off information he claimed had been extracted from al-Qahtani.

The FBI unit chief broke in. “Look, everything you’ve gotten thus far is what the FBI gave you on al-Qahtani,” he spat.

Nods around the room.

“That is
not
true,” Phifer shot back.

“It is,” the psychologist said.

“Look, the techniques you guys are using don’t work,” the unit chief said. “They’re completely ineffective. You’re not getting good intelligence.”

Voices were raised and accusations flew. There was no bridging the gap between diametrically opposed and inflexible positions. The meeting broke up and the teleconference ended.

•  •  •  

The news from Bob Lady was a nasty surprise.

For the first time, the CIA station chief in Milan was informing his counterpart with SISMI, the Italian intelligence agency, about the American plan to kidnap one of the city’s residents. Months before, he had tipped off a friend who was an officer with the Carabinieri, but this time, while speaking to an equal, he held back nothing—the entire idea, Lady said, was stupid.

The SISMI officer, Stefano D’Ambrosio, could only listen in disbelief as Lady described the madness of the undertaking. Snatching the suspected terrorist, Abu Omar, from an allied Western country—one that was more than willing to share intelligence about the man—was irrational. Italy wasn’t Pakistan; there was no reason to take such an extraordinary step.

Worse, Lady said, he now knew that Italy’s premier law enforcement and state security service—DIGOS—was conducting surveillance of Abu Omar. The group had tapped his phones, which had already led to other suspects. Investigating the Egyptian cleric was invaluable in obtaining new intelligence about Italy’s Islamic extremists. Leaving him alone while law enforcement watched was certainly a better choice than making him disappear.

“I’m telling you this because I wanted to see if you were already aware of the plan to collect him,” Lady said.

The operation, Lady said, had been worked out by Jeff Castelli, head of the CIA in Rome. “And he’s following a range of precise directives from agency headquarters in Langley,” he said.

A CIA squad belonging to a unit called the Special Operations Group was already in Milan, preparing for the abduction. “These guys are the heavies, the ones who conduct special intelligence operations,” Lady said. “All of them have military and operational experience. They’re not just confined to investigative work.”

There were several steps to the plan, Lady said. Once Abu Omar was grabbed in Milan, he would be driven to an air base near Ghedi, in the province of Brescia. Then he would be moved onto a plane from Ramstein Air Base in Germany and flown to another location. Lady did not mention that Abu Omar was being taken to Egypt.

“SISMI personnel are at work near Ghedi right now to find a suitable place to hold him until we can get him on the plane,” Lady said. The ones involved weren’t renegades; all of this was being done with the knowledge and approval of the director of SISMI, General Nicolò Pollari.

After finishing his description of the plan, Lady shook his head. “None of this makes sense,” he said again. “This man is being subjected to an excellent and thorough investigation by DIGOS. Why in the world is it necessary to damage our fruitful collaboration with them?”

Plus, no one at the CIA was recognizing obvious problems. He had been forced to betray the confidence of DIGOS by keeping it in the dark about the scheme, Lady said, and that could well put everyone in danger.

“This man and all the other suspects are being tailed,” Lady said. “But no one is considering how DIGOS is going to react when they see someone abducted off the street in front of them. There might even be shooting.”

Feeling bowled over, D’Ambrosio sat back in his chair. “I agree with your criticisms,” he said. “But what you might not know is that the air-base commander at Ghedi, Colonel Bellini, would never have consented to using his base for this. When he finds out, he will be furious.”

Lady spread his arms out in despair. “What can I do?”

“Why has such an action been planned?”

“It’s a project intended to remove a subject from circulation who’s held to be extremely dangerous.”

“But this is just one man,” D’Ambrosio replied. “Once he’s been taken away, he’ll probably just be replaced by somebody else who we’ll have trouble
fingering. And then we won’t be able to place this new fellow under observation. Plus, if DIGOS continued their work, they could develop more evidence sufficient for Abu Omar’s arrest and sentence in a court.”

“I agree,” Lady said. “But this is a plan that is now decidedly close to the hearts of Castelli, as well as Sabrina de Sousa.”

D’Ambrosio recognized the name. De Sousa worked at the Rome embassy; Castelli had sent her to Milan, Lady said, to keep tabs on him and push him in the right direction. Lady bad-mouthed de Sousa, and then began to belittle Castelli.

“What do you expect someone who’s a Buddhist, burns incense in his office, and listens to the music of Bob Marley to know about terrorism?”

Both men chuckled.

“Well, despite being the section head for SISMI in Milan, I know nothing of this plan,” D’Ambrosio said.

“I suppose I shouldn’t be surprised,” Lady replied. “None of the activities here involve your staff. It’s SISMI people coming directly from Rome.”

A moment passed, then Lady’s eyes flashed with a new zest. “I cannot believe that Pollari is in on this!” he snapped.

•  •  •  

If the detainee dies you’re doing it wrong.

Mark Fallon, head of the Criminal Investigative Task Force at Guantanamo, was stunned by what he was reading. The words leaped out at him from the minutes of the October 2 debate between the military and the CIA on subjecting al-Qahtani to harsher interrogations. Fallon wasn’t supposed to have seen the document, but one of his colleagues, Blaine Thomas, had snagged a bootleg copy and e-mailed it to him.

With every sentence he read, his revulsion deepened. Waterboarding, plans to hide abusive techniques from the Red Cross, the need to have medical personnel at the ready during interrogations—it was all abhorrent. Yet the people involved chattered on about this cruelty in such a relaxed, banal way, as if they were discussing plans for a weekend barbecue. Members of Fallon’s team hadn’t been invited to the meeting, and no wonder. A criminal investigator would never have sat through it without raising hell—and might even have deemed the discussion to be an illegal conspiracy.

On October 28, Fallon forwarded the e-mail to other members of his team and included his own analysis.

“This looks like the kind of stuff that Congressional hearings are made of,”
he typed. The ideas being tossed about “would, in my opinion, shock the conscience of any legal body looking at using the result of the interrogations.”

But this was not just about how a court or tribunal might judge the military’s interrogation plans. “Someone,” Fallon wrote, “needs to be considering how history will look back at this.”

•  •  •  

That day, Paul Clement stood in the well of a Richmond courtroom, preparing to argue the latest government appeal in the Hamdi case. The deputy solicitor general had been readying himself for this moment through moot court sessions at the Justice Department, with colleagues playing the role of the three-judge panel on the Fourth Circuit Court of Appeals. The exercise honed his argument that the government was not under any obligation to provide more information about its reasons for detaining Hamdi, as had been demanded by Judge Doumar of the lower court.

Reporters and onlookers packed the courtroom, including several government officials who had quietly slipped into the gallery. David Addington and Tim Flanigan had arrived about an hour early, but had been careful not to identify themselves to anyone at the courthouse; the last thing they needed was to be swarmed by journalists.

Both sides trotted out the same arguments they had presented to Doumar. Clement maintained that the declaration of Michael Mobbs, a Pentagon official, that had been filed by the administration in July spelled out everything Doumar needed to know about Hamdi’s detention. The courts should have no further role; this was solely a matter for the president.

“I think it’s important to give discretion to the executive branch to handle detainees as it sees fit,” Clement said. “It is possible for the United States to handle an individual seized in the United States as an enemy combatant.”

Not good enough, argued Frank Dunham Jr., Hamdi’s lawyer. The Mobbs declaration was nothing more than a series of government assertions, all with the implied message “Trust us.” The administration was refusing to allow Hamdi to even
see
the declaration—vague as it was—to say whether any of it was true.

“Nobody knows what his version of the facts might be,” Dunham said.

The passage of time had also undermined the government’s claim about the need to question Hamdi, he said. Of course any decision made on the battlefield was entitled to deference, and the government’s interest in gathering intelligence from a captive was understandable. But—given the months that had passed—how much could Hamdi know that he hadn’t already revealed?

Chief Judge Wilkinson seized on that thread of inquiry. Was Hamdi even worth holding? After all, the Mobbs declaration said that Hamdi had been in Afghanistan only a few months before he was caught.

“Is Mr. Hamdi still of use to you in your intelligence-gathering operations?” Wilkinson asked. “Is Hamdi still of importance?”

Absolutely, Clement replied. Anytime another suspected terrorist was captured, Hamdi could be prodded to reveal whatever secrets he might know or insights he might have about the man. Intelligence was a mosaic, where bits and pieces of information came together to form an understanding of reality.

But wait, Dunham retorted. The very expectation that Hamdi should be held because he might cough up new evidence placed the government under the obligation to explain
why
it considered him so valuable. “We still don’t know if he’s an enemy combatant, that’s the sixty-four-dollar question,” he said. “The precedent that the administration is setting has a long-term potential for incursions on our liberties.”

Wilkinson all but threw up his hands at the quandary being thrust upon him and his colleagues. It was the job of the court to strike the right balance between protecting the safety of American citizens and upholding the country’s values. But demanding that the administration bring more evidence to court could well insert judges into the war.

“I’m worried about wading in over my head with these production orders,” he said. “Doesn’t that move the battlefield right into the courtroom?”

“Our freedoms don’t come cheap,” Dunham replied. “They can’t be swept away.”

The arguments continued for two hours. At the end, Wilkinson nodded to the lawyers on both sides. “The American people have been beautifully served by the quality of the advocacy,” he said.

Then, following a tradition of the Fourth Circuit, Wilkinson led his two colleagues down from the bench to shake hands with the battery of attorneys.

•  •  •  

A White House van pulled up to one of Washington’s premier hotels at 8:30 on the morning of October 30. The driver scampered out and opened the doors for two dignitaries, Hans Blix and Mohamed ElBaradei, the men designated to oversee the new searches in Iraq for weapons of mass destruction.

The groundwork for inspections had been under way for more than a month. The new U.N. resolution demanding that Iraq disarm would be approved in a few days. Blix had been crisscrossing the world in preparation—negotiating
with the Iraqis, meeting with Russian officials, consulting members of the Bush administration. Then, two nights before, Colin Powell had telephoned Blix to say that the time had come for him to speak with the president.

The van drove Blix and ElBaradei—director general of the International Atomic Energy Agency—and their aides to the portico outside the West Wing of the executive mansion. The aides were left to cool their heels while Blix and ElBaradei were escorted to Cheney’s office.

The vice president greeted his guests and invited them to take a seat. Cheney had no real questions. Instead, he did most of the talking.