For example, the military needed to interrogate Hamdi for any knowledge he might possess about al-Qaeda and its plans. Plus, evidence showed that al-Qaeda operatives could use a meeting with anyone for strategic—and dangerous—advantage.
“It is well known,” the filing said, “than an al Qaeda training manual uncovered by the United States provides instructions for passing concealed messages to their colleagues from behind bars after they have been captured—even through unwitting intermediaries.”
After the document was filed, a local reporter called Dunham to ask him about the claim that Hamdi might use him to communicate with other al-Qaeda members.
“It’s so ridiculous, I just won’t give it the time of day,” Dunham replied.
The lawyer could not have known, but the government’s claim was also wrong. The filing was referring to the Manchester Manual, which was found not by the United States, but by Britain. And despite the claim that it was “well known” that the document described how to pass secret messages from prison, it did nothing of the sort.
• • •
“That sounds idiotic, doesn’t it?”
Federal Judge Robert Doumar scowled as he spoke the words to Gregory Garre, the assistant to the solicitor general. It was May 28, and Doumar had taken up the Hamdi case days before, putting on hold all of Magistrate Judge Miller’s orders. But now, in his first hearing on the case, the white-haired jurist was erupting in anger at the government in ways that made Miller’s show of annoyance seem tame by comparison.
Garre had just argued that Hamdi had no right to a lawyer, since he had not been charged with anything. But, as a captured enemy combatant, he could be held indefinitely. Doumar rolled his eyes.
“We’re not dealing with a novel doctrine here,” Garre said. The military historically had the right to capture enemy combatants under the rules and customs of war, and could hold them until the end of the conflict.
“That is mind-boggling!” Doumar responded. “When are these hostilities going to end? Can he be held forever? Can he be held for life?”
Frank Dunham, the federal public defender, argued that if he was not allowed to speak to Hamdi, there would be no way to challenge the government’s designation that he was an enemy combatant.
“Allow me to see him so I can develop his side of the story,” he said. “He could well say that ‘I was standing around tending my camel when I got rounded up.’ ”
Doumar agreed. “Not letting Hamdi see a lawyer just seems to run counter to the very basic right to counsel that is part of the constitution,” he said.
He issued his ruling, upholding Magistrate Miller’s order. The government had three days to allow Dunham to meet with Hamdi, in private. And its lawyers had to provide a written explanation for why Hamdi was being detained.
The three days, Doumar said, should be enough to give the government the chance to challenge his ruling in a higher court.
“How much time would you need to drive to Richmond or Washington to file an appeal?” he asked.
Then he smiled. “And if you can find a judge to overturn my decision,” he said, “more power to you.”
• • •
John Yoo shook his head as he lingered over the words from Doumar’s ruling.
This is outrageous. This country was at war. Hamdi had been seized on the battlefield. And the administration was supposed to treat him like a common criminal defendant? Maybe summon a few soldiers from Afghanistan to Norfolk so they could describe the circumstances of Hamdi’s capture, just to ease Doumar’s concerns?
This judge’s ruling wasn’t just some distraction on the sidelines of the war on terror, Yoo fumed. It struck at the very heart of the conflict. If left unchallenged, it would set a precedent that could wreak untold damage.
He contacted Ted Olson, the solicitor general. “Ted, you know, I’m really worried about this case. It could go to the Supreme Court, and I think it’s going to raise some fundamental questions of whether we’re at war.”
It was a bad idea, Yoo said, to leave a matter of this importance in the hands of some local federal prosecutors. They needed to put together a special team of administration lawyers reporting to Olson, which would handle Hamdi and the other habeas cases.
A good idea, Olson said. “We need to make sure we put the best people on this,” he said.
• • •
Dozens of administration lawyers gathered around a conference table in an ornate, ceremonial room on the fifth floor of the Justice Department. Like Yoo, they had been staggered by Judge Doumar’s ruling; most in the group had assumed that he would brush aside the Miller orders, or maybe limit them. But certainly not uphold them.
The legal team that had been assembled to handle the habeas cases was just getting its footing, but now there was no time left for preparations and debate. Ted Olson had called this meeting to set the strategy for the next few weeks on how to manage the Hamdi problem.
“All right, you know what Judge Doumar’s decision has been on Hamdi, and we’re going to have to figure out what our response is going to be,” he told his colleagues. “I want to hear everybody’s views.”
The first suggestion was simple: Do nothing. A number of lawyers said that the administration should not appeal Doumar’s ruling, to avoid alienating him. Whatever a higher court ruled, the case would be kicked back to Doumar. He was renowned for his anger and had the habit of tongue-lashing lawyers who challenged him. In Norfolk, the joke was that Judge Judy, the brutal television jurist, quaked when she saw Doumar coming.
“We should just give Doumar the answers he wants,” one of the assistant United States attorneys from the district said. “Work with him in the four corners of the decision.”
That was the best idea and didn’t seem to have much downside, another lawyer said. Even if Doumar demanded to hear from the soldiers who had picked up Hamdi, so what? Bring them back, take them to court, have them answer some questions. Simple.
Lawyers from the State Department and the Pentagon agreed. “It’s not like this is a trial,” a lawyer from State said. “He’s basically saying this raises constitutional concerns and he wants a briefing on the constitutional issues. We can—”
Yoo interrupted. “This judge has to be slapped down,” he said. “He’s gone way beyond his authority.”
The administration had no choice, Yoo said, but to appeal. “It’s important that this judge not be allowed to interfere with decisions that are going to have implications with military and intelligence operations,” he said. “This guy’s acted way outside what he’s allowed to do, he cited no precedent for it, and he shouldn’t be allowed to get away with it.”
Doumar was casting himself, in an act of misplaced grandiosity, as some sort of judicial monarch, Yoo said. “I don’t think this one guy, this one judge, this outlier should, because of the luck of the draw, be allowed to dictate how American detention policies can work!” he snapped.
The vehemence of his outburst took his associates aback. Yoo was usually coolheaded, but this time he was unable to contain his fury at the idea of knuckling under to this single judge.
The debate dribbled on for a bit longer, but no one in the room came close to matching the intensity of Yoo’s passion.
• • •
On Saturday, June 8, Gonzales was in Austin preparing to deliver a speech when he received a call from Jim Haynes at the Pentagon.
“I need to speak to you on a secure line,” Haynes said.
“Okay. Call me back at two.”
He instructed Haynes to dial the office of Johnny Sutton, the United States attorney for the Western District of Texas. Gonzales made his way a few blocks to a building on the corner of Ninth and Congress. Ordinarily, Sutton’s tenth-floor suite was locked on the weekend, but someone had been told to open it for the White House counsel. Gonzales walked into Sutton’s personal office, where the black, bulky secure phone was hooked up. The call came through right on time.
“Every
one has reached an agreement on Padilla,” Haynes said. The military was going to take him into custody.
The debate about what to do with Padilla had been raging for weeks, with officials racing to reach a decision before Judge Mukasey’s next hearing, scheduled to be held in three days. Mukasey could well order Padilla’s release from prison unless the government charged him with a crime; a material witness warrant might not be enough to hold an American citizen for months.
But indicting him was inconceivable. Too much of the evidence against him had come from Abu Zubaydah and another suspect, Binyam Mohamed, who had been beaten by Pakistani intelligence officers when they questioned him. National security was at issue. The administration couldn’t just trot out two high-level enemies of the United States who had been secreted away in prisons overseas.
Not only that, but trying suspected terrorists in civilian court had proved to be messy affairs. Moussaoui had already transformed his criminal trial into a circus, firing his lawyers, launching into lengthy diatribes against the West, and trumpeting his wish for the destruction of America. The trial of John Walker Lindh hadn’t gone much better—his lawyers were mounting an aggressive defense, releasing government photographs that showed their client bound, naked, and blindfolded; demanding access to detainees at Guantanamo; and seeking to subpoena members of the military and the FBI. Criminal prosecutions, some administration lawyers argued, were too unpredictable for cases that blended the usual types of evidence with classified intelligence.
Still, the process for making the decision was complicated. The CIA compiled a written assessment of the available intelligence about Padilla, including the statements from Zubaydah. That information was then turned over to the Pentagon, which added data collected by the Defense Intelligence Agency. An assessment of whether Padilla qualified as an enemy combatant was signed by Rumsfeld and forwarded to Ashcroft. There, the final analysis was prepared, attesting that Rumsfeld’s determination complied with the law, that the military could legally take Padilla into custody, and that Ashcroft recommended the decision as a matter of policy. The full package of information was then sent back to Haynes at the Pentagon.
Gonzales thanked Haynes for the update. He would take the recommendation to Bush once he got back to Washington.
• • •
The next morning, Sunday, Gonzales dropped by Addington’s office to read through the Padilla recommendation. The vice president’s counsel and Flanigan had been shepherding the documents through the approval process and both men had kept copies.
Addington was waiting. Gonzales greeted him, picked up the paperwork, and sat down on a couch to review it. He recommended a few changes and the two men tinkered with the wording. It was ready for the president.
Gonzales made a call and was connected to Bush. “Mr. President, I’ve got the paperwork on Padilla.”
Fine, Bush replied. He told Gonzales to bring it by that evening.
• • •
Bush was sitting at his desk in the White House residence, reading through a single-page declaration. It said Padilla was an enemy combatant, was closely associated with al-Qaeda, and posed a continuing threat to the United States. Everything seemed in order.
Bush dated the document and signed it.
• • •
At about the same time, federal prosecutors in New York visited Judge Mukasey at his home with a motion to toss out the material witness order. If it remained in effect, the transfer of Padilla from the custody of the Justice Department to the Pentagon would be impeded. Mukasey approved the request.
That night, military officials arrived at the Metropolitan Correctional Center and took custody of Padilla. He was shackled, blindfolded, then flown to the Naval Weapons Station Charleston in South Carolina. Members of the navy’s masters-at-arms branch brought Padilla off the plane, taking him to Building 3107, the Consolidated Naval Brig. He was locked in a cell away from the rest of the population.
• • •
The next day, Padilla’s lawyer, Donna Newman, was preparing for a hearing before Mukasey that was scheduled to be held in twenty-four hours. No one had told her that the warrant against her client had been vacated, or that he had been turned over to the military. She was notified of his fate just before the rest of the world learned about it.
• • •
A press release had been written about Padilla and an information packet prepared. White House officials prided themselves on their skill at controlling “the message” of any event, making sure an announcement was carefully readied. This one was going to take particular skill. A United States citizen arrested on American soil, dirty bombs, enemy combatants—these were complex issues that had to be framed well. They couldn’t overstate the threat, yet at the same time they had to justify the military’s custody of Padilla as necessary for national security.
Both Rumsfeld and Ashcroft were overseas, so the responsibility for handling the press conference had been turned over to their deputies—Wolfowitz and Larry Thompson—as well as Mueller from the FBI. There had been some debate about where to conduct the briefing, but the White House wanted it held at the Justice Department pressroom.
The planning was still under way when a document arrived at the White House from Moscow. It was a statement about Padilla that had been composed by aides to Ashcroft, who was traveling in Russia. Until that moment, no one at the White House even suspected that the attorney general was preparing to hold his own—unvetted and unapproved—press conference in Russia.
• • •
Ashcroft was rehearsing his statement while one aide applied hair spray and another brushed off his shoulders.
“We have captured a known terrorist,” Ashcroft said.
He stopped and loudly cleared his throat. “Let’s try that again,” he said. “We have captured . . .”
• • •
About fifteen minutes later, Ashcroft peered grimly into a Russian camera, his face bathed in an eerie red glow. The image was spooky, something like the opening scene of a horror-movie marathon.
“I am pleased to announce today a significant step forward in the war on terrorism,” Ashcroft began. “We have captured a known terrorist who was exploring a plan to build and explode a radiological dispersion device, or dirty bomb, in the United States.”
So far, so good. Despite Ashcroft’s appearance—and the apparent urgency conveyed by his delivering his statement from Moscow—the words he had spoken so far were finely tuned, the essence of diplomatic understatement. Padilla was “exploring a plan”—just the right way to phrase it. There was no talk of an imminent threat.
The attorney general described Padilla’s background, explaining that he had also gone by the name Abdullah al-Mujahir, and gave details about his arrest in Chicago. Then Ashcroft fouled it up.
“We have disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive dirty bomb,” he said. “Now, a radioactive dirty bomb involves exploding a conventional bomb that not only kills victims in the immediate vicinity, but also spreads radioactive material that is highly toxic to humans and can cause mass death and injury.”
• • •
In the White House, Addington watched Ashcroft’s performance in utter astonishment. Disrupted an unfolding terrorist plot? Padilla had barely entered the planning stages. Mass death? Mass overstatement! People were going to think that the country just dodged a nuclear attack or something.
Not good.
• • •
Ashcroft’s face filled the television screens on the floor of the New York Stock Exchange and in trading rooms across Wall Street. His words flashed across Bloomberg and Reuters news terminals.
The stock market had been having a good day, a rarity since the collapse months before of Enron, the energy conglomerate. In fact, the Dow had gained just over one hundred points.
But, as Ashcroft spoke, the market swooned. The advances for the day were all but wiped out in minutes.
• • •
It’s never easy to walk a cat backward. But somehow, the White House had to undo Ashcroft’s alarmist talk without suggesting that the administration didn’t know what it was doing.
The duty fell to Wolfowitz, Thompson, and Mueller. The original press conference went forward; reporters were notified that there would be a briefing at 11:15 that morning. After a twenty-minute delay, the three men appeared. Thompson spoke first.
“By now, all of you have heard the attorney general’s statement regarding the arrest of Abdullah al-Mujahir and his transfer to military control,” he said. “Secretary Wolfowitz has a few brief remarks.”
Wolfowitz took over, choosing his words carefully in an effort to project a sense of calm. Padilla had been discussing plans; he had only been conducting reconnaissance. His soothing tone didn’t satisfy the crowd of journalists; they wanted facts.
“How far did they get?” one reporter asked. “Have they assembled any part of the weapon?”
Thompson glanced at Mueller. “I’ll defer to the director on that question.”
Mueller said a few words thanking the CIA for their work. “Now, with regard to the specific question, as it states, I think, in the attorney general’s statement, there were discussions about this possible plan, and it was in the discussion phase,” he said. “It had not gone, as far as we know, much past the discussion phase.”
Another reporter asked whether the attack was planned to take place in Washington. Mueller turned that question over to Wolfowitz.
“As Director Mueller said, this was still in the initial planning stages,” Wolfowitz said. “It certainly wasn’t at the point of having a specific target.”
While Padilla seemed to have some knowledge of the Washington area, that wasn’t particularly important. “I want to emphasize again, there was not an actual plan,” Wolfowitz said. “We stopped this man in the initial planning stages.”
500 Days: Secrets and Lies in the Terror Wars Page 39