500 Days: Secrets and Lies in the Terror Wars

by Kurt Eichenwald

  Now, with the 9/11 attacks, Addington had become indispensable. He knew more about the issues involved than the White House counsel, the attorney general, the director of the CIA, and the vice president himself. Even now, just one day after the attack, other administration lawyers were speculating that Addington’s influence on the course of American policy would grow exponentially in the years ahead.

  • • •

  Flanigan placed the call.

  “David Addington.”

  “David, it’s Tim. I’m drafting the resolution on the use of force, and wanted to get your input.”

  “Okay.”

  “I’m going to use the ’91 resolution as a starting point.”

  Good idea, Addington replied. No need to reinvent the wheel.

  “But,” he added, speaking rapidly, “we need to be sure that we give the president all of the authority he needs to do this, because we don’t know what this conflict is going to look like.”

  That made sense. Flanigan had skimmed the 1991 resolution, and had seen it was constrained by numerous specifics—the president could use force only to implement United Nations resolutions against Iraq, for example, and only after exhausting all diplomatic measures. Such restrictions simply couldn’t be applied in a war against a nebulous enemy—or network of enemies.

  No, this resolution would have to give Bush almost unfettered power to pursue terrorism anywhere, for any length of time, using any legal authority he deemed necessary.

  • • •

  Flanigan went back to his computer. He read the opening words from Section 2 of the 1991 resolution.

  The President is authorized, subject to subsection (b) . . .

  Subsection (b). That had required the first President Bush to assure Congress that his administration had used all appropriate peaceful means to resolve the dispute with Iraq.

  Flanigan tapped on two keys, control and delete. A black line edited out the words subject to subsection (b). The subsection would have to come out, too. How could the administration engage in diplomatic efforts with al-Qaeda?

  He returned to the opening sentence of Section 2, with the new edit.

  The President is authorized, subject to subsection (b), to use United States Armed Forces . . .

  That wouldn’t do. Too restrictive. This battle would range to other components of American power beyond just the military. To the Treasury, for example, which was engaged in efforts to interdict terrorist financing. To the CIA, of course, which not only would be gathering intelligence but would almost certainly be playing a large role when boots hit the ground in Afghanistan. The National Security Agency was already conducting signals surveillance. The State Department was scouring the globe to enlist allies in the fight. There were certain to be more initiatives that no one in the administration yet imagined.

  Flanigan tapped control-delete again, then thought about a new phrase, one that would allow the White House to wield broader powers. He typed a few words, then read the sentence again.

  The President is authorized, subject to subsection (b), to use United States Armed Forces all necessary and appropriate force . . .

  Flanigan hesitated. There was no explanation of what constituted “all necessary and appropriate force.” If Congress voted for this, it was essentially giving Bush carte blanche to act as he saw fit in fighting terrorists.

  In for a dime, in for a dollar. The use of force in the 1991 document was limited solely to enforcing United Nations resolutions calling for Iraq to leave Kuwait. Out went those words. The U.N. would have nothing to say about the administration’s response, and there would be no detailed definition of who or what could be the target of American force.

  Then there was the problem of terrorist cells inside the United States; there had to be words taking into account the need for domestic action. For a minute, Flanigan typed. He cleaned up the edit, and read the sentence again.

  The President is authorized to use all necessary and appropriate force in the United States and against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

  That was about as broad a grant of power as Flanigan could write. He wasn’t sure if it went too far, or if the language was clear. He reached for the phone again. This time, he wanted to speak with John Yoo.

  • • •

  In a matter of minutes, Yoo came to the White House from the Eisenhower Executive Office Building across the street. He passed by the secretaries in the main room, offering a quick greeting, then walked into Flanigan’s office.

  “Thanks for coming over,” Flanigan said. “We’ve got some important work to do with this resolution. I already took a stab at drafting something.”

  He picked up a white binder on his desk and handed it to Yoo. Inside were the 1991 resolution and the new draft. Yoo sat on the sofa and started reading. He reached the words necessary and appropriate force. The draft, he saw, went far beyond the terms in the authorization on Iraq.

  He looked up. “You realize this is quite different.”

  Flanigan nodded. “Yeah.”

  They discussed the implications. The casual reader might not realize it, but this document could be used to authorize the use of military force inside the country. Not long ago, it would have been unthinkable that a war could be carried out on American soil. But, Flanigan noted, there was already a precedent, established the previous day: Bush had been called upon to approve shooting down a civilian plane, and the Pentagon had ruled that he had the statutory authority to do so.

  That was true, Yoo said. This document, no matter how obliquely, merely spelled out that new reality.

  Yoo returned to parsing the words of the full order and began to wonder if it was too sweeping. It was one thing for administration staffers to proclaim an open-ended doctrine on the scope of the president’s authority. It was quite another for Congress to endorse it.

  “I don’t know if they’re going to let us get away with this,” You said. Congress and presidents had long tussled about who had the authority to decide to go to war, and this revision of the 1991 resolution went the heart of that dispute.

  Flanigan shrugged. “Why don’t we try and put it in?”

  • • •

  Cofer Black and his deputy, Ben Bonk, were taking a breather.

  The analysts in the Counterterrorist Center had been running themselves ragged since the attacks, with no chance to relax and often no desire to do so. Black had watched a longtime analyst pull on her coat and head for the door after almost forty-eight hours on the job; in the hallway, she had stopped by a table loaded with food and glanced at a wall already filled with children’s letters and drawings that thanked those in the government who were working so hard to keep their families safe. The analyst had blinked, turned, and slid off her coat as she walked back to her desk to take up the next assignment.

  Black and Bonk spoke with pride of these people who had sacrificed so much, struggling in anonymity with too few resources, too many leads, and not much pay as they worked to protect their countrymen. Their dedication was no secret inside the agency—the CIA Office of Inspector General had just spent six months conducting a review of the Counterterrorist Center, and the report issued just a few weeks ago was nothing short of a rave. The staffers were highly dedicated and knew they were working to save American lives, the report said. But the center’s funding was unreliable, leaving the group shorthanded. That, the report said, meant the existing crew was turning in its superb performance while operating pedal-to-the-floor almost all of the time, as crisis after crisis emerged.

  With the attacks in New York and Washington, money, equipment, and people would soon be flowing in, which was certain to give the staffers a morale boost as they hit their stride. But Black and Bonk recognize
d they wouldn’t be around to watch the reinvigoration of their beloved division.

  “You know, we’re finished here,” Black said.

  Neither had to put the reason into words. It didn’t matter how effusive the recent praise of their work had been, or how many times they had warned the White House of an impending slaughter. It didn’t matter that they had retained all of the PowerPoint presentations in their files that proved their diligence. Someone would have to be held accountable. Fighting terrorism was their business. They were about to be shown the door.

  “That’s true,” Bonk replied. “Let’s not worry about it for now.”

  “Yeah, we’re finished,” Black repeated. “So while we’re here let’s just focus on doing what needs to be done.”

  A moment passed. Then they returned to work.

  • • •

  In Kabul, Khalid Sheikh Mohammed, the mastermind of the 9/11 attacks, arrived at the home of Muhammad Salah, eager to describe the events of the previous day. Some of al-Qaeda’s top leadership, including bin Laden, had been on the move and for now had taken refuge with Salah, a terrorist operations planner.

  Sheikh Mohammed walked into the room where everyone waited. The men called out his code name—Mukhtar—and greeted him with blessings, hugs, and kisses.

  This was the kind of adulation that Sheikh Mohammed had craved ever since his nephew, Ramzi Yousef, gained worldwide recognition for detonating a truck bomb at the World Trade Center in 1993. Three years later, Sheikh Mohammed came to bin Laden with a proposed plot that was as daring as it was grandiose. Ten commercial airliners would be hijacked by teams of Muslims, with nine of them crashing into targets on both the East and West Coasts—the World Trade Center, the Pentagon, the CIA, the FBI, nuclear power plants, the Library Tower in California, and others. Then, exposing his egotism and desire for fame, Sheikh Mohammed announced he would pilot the tenth plane, land at an American airport, kill all of the male passengers, and deliver a speech condemning the Americans.

  Bin Laden had responded coolly to the idea. Sheikh Mohammed’s proposal seemed too ambitious, too impractical. Other, less complicated ideas, like the plot for the embassy bombings, were already in the works. But by 1999, bin Laden considered Sheikh Mohammed’s plan once again, deciding it might work if it was pared back to a more manageable size—four planes rather than ten.

  Now Sheikh Mohammed’s vision had come to pass. He took a seat beside bin Laden and offered up details of the successful operation. Each attack had been planned to take place twenty to thirty minutes apart, he said, and that had played out perfectly.

  He showed bin Laden three publications he had brought with him—two newspapers in Arabic and one magazine in English. Photographs of explosions and flames at the World Trade Center filled the first pages. Flipping inside, Sheikh Mohammed showed bin Laden pictures of some of the hijackers that had already been publicly distributed by the FBI. Bin Laden smiled, praising the men by name.

  “Thanks be to God for the success of the operation,” bin Laden said. “God willing, accept these men as martyrs.”

  He looked toward Sheikh Mohammed. “May God reward Mukhtar for this work.”

  • • •

  Bush and the war cabinet met on the morning of September 13 in the White House Situation Room. Plans to chase down al-Qaeda were starting to gel, but the details weren’t set.

  “This is not business as usual,” Cheney said. “Six weeks to figure out what to do is six weeks too long.”

  The administration needed to be aggressive in its retaliation by inflicting pain on the terrorists and their supporters, he said. Anyone, any group, any nation that did business with al-Qaeda would be hurt—in finances, in logistical capabilities, in everything.

  “We’ve got to cast the net broadly,” he said. “A state that provides support for terrorism in any way will be a target for U.S. pain.”

  Tenet had come to the meeting ready to lay out details of the CIA proposals. Long before, the agency had drawn up two blueprints—one called “Going to War,” which centered exclusively on fighting in Afghanistan; and the other, “Worldwide Attack Matrix,” which detailed covert operations against the entire global spectrum of groups and individuals affiliated with al-Qaeda. These were set to go and could be used as the foundation of a comprehensive battle against bin Laden’s organization, starting in Afghanistan.

  “We’re prepared to launch an aggressive covert action program that will carry the fight to the enemy,” he said. To do that, CIA paramilitary teams would be sent into Afghanistan to work with the Northern Alliance and others battling the Taliban; that would pave the way for American military forces.

  Tenet turned to Cofer Black. Using a PowerPoint presentation, Black described his group’s capabilities for covert action, the projected deployments of paramilitary forces, and the lethal potential of the armed Predator that, as expected, had just been approved for combat.

  “Now, we will not just be taking on al-Qaeda in Afghanistan,” Black said. “We’ll be taking on the Taliban, too. They’re inseparable.”

  “How quickly could we deploy the CIA teams?” Bush asked.

  “In short order.”

  “How quickly, then, could we defeat the Taliban and al-Qaeda?”

  “A matter of weeks, once we are fully deployed on the ground countrywide.”

  Tenet listened with unease to Black’s confident prediction. A matter of weeks? Tenet doubted that was possible. It would take time to find the enemy, and as Black had just acknowledged, these terrorists were tenacious and fearless fighters.

  Bush harbored no such doubts. For the first time, he believed that he understood how America was going to win this war.

  • • •

  Two black sedans motored up Pennsylvania Avenue, flashing winks of sunlight as they moved. The air was clear, the sky virtually cloudless—the same surreal beauty that had bathed the Northeast on the morning of the attacks two days earlier.

  Inside the cars, a small phalanx of White House lawyers were heading to Capitol Hill for the first negotiations over the resolution granting Bush new powers to fight terrorists. Flanigan had sent his latest draft to Senate staff members the night before and was now ready to wrestle with them about it.

  “What are they going to want to change?” Flanigan asked Yoo, who was sitting in the front seat.

  “They’re certainly going to want to add more War Powers language to it,” Yoo replied.

  That was something the lawyers had already agreed to fight. Since the War Powers Resolution was adopted in 1973, Congress had maintained that a president could commit American armed forces overseas only with its approval. Successive administrations had rejected that claim as an attempt to usurp the president’s constitutional authority to wage war. The proposed resolution put that issue front and center. But the challenges, the lawyers knew, wouldn’t end there.

  “They’re definitely going to go after the ‘necessary and appropriate’ language,” Flanigan said.

  Not so, Nancy Dorn, Cheney’s head of legislative affairs, said from the backseat. The country was too traumatized and emotions were too raw. No member of Congress would want to be castigated as the stumbling block to Bush’s initiative for shielding the homeland against terrorists.

  “In the end,” she said, “they’re going to give the president what he wants.”

  The sedans arrived at a checkpoint that had been set up to stop car bombers from getting near the Capitol. The lawyers spilled out and strolled the last fifty yards to the building. A tiled staircase led to an ornate high-ceilinged conference room where filament bulbs cast a weak glow over portraits of some of Congress’s great history makers.

  More than a dozen congressional aides were already gathered around the conference table when the White House officials arrived. There were handshakes and pleasantries all around; then everyone got to work.

  The first item for discussion: War Powers language. The dance opened with a traditional step—the congressional s
taffers argued for inclusion of phrases from that decades-old resolution to ensure that Bush didn’t veer off into an open-ended commitment of military forces without consulting legislators.

  Not applicable here, the administration lawyers responded. Beyond the fact that the executive branch maintained that the War Powers Resolution was an unconstitutional encroachment on presidential authority, this was not like any previous conflict. No one, at this point, could say where this campaign would lead; the White House would be hampered by requirements that might come into play each time there was new information identifying culprits in the attacks.

  An aide to Senator Edward Kennedy was studying the draft, her face pinched with concern. “This grant of power to the president is scary,” she said.

  “But,” Yoo replied, “it’s perfectly appropriate under the circumstances where we don’t know what the threat is.”

  The Kennedy aide held up a copy of the 1991 Iraq resolution. “This one has some specificity,” she said. “We’ve got to have something in this new one to sort of cabin the president’s power. This grant is just too broad.”

  Several of the staffers focused on the words in the United States, which followed the phrase granting the president the authority to use all necessary and appropriate force. Use of force inside the country? That was unprecedented. The congressional side dug in, and the four words were cut.

  Round and round the dancers circled, with the Senate aides trying to lead the discussion into restrictions on Bush’s authority and the White House staffers pushing back.

  After several hours, an aide to Senator Joe Biden, the Delaware Democrat, suggested adding a few words to modify an element of the resolution. The revision struck Flanigan as reasonable.