At Guantanamo, the interviews of Mohammed al-Qahtani weren’t going well. In the week since the discovery of evidence suggesting he was the twentieth hijacker, FBI agents and military personnel had interrogated him every day, without much luck. He was combative and evasive. He projected unbridled arrogance.
He had never traveled to the United States, Qahtani insisted, and if anyone was saying that he had, well, they were lying. The interrogators then revealed that they had records showing he had tried to enter the country the year before in Orlando. Qahtani changed his story—that was just a business trip, he said. He had come to America to sell used cars. Despite the obvious contradiction, Qahtani would not budge from his cover story. The interrogators decided to try isolating Qahtani to see if a lack of social support from other detainees might make him more compliant. They moved him to the maximum-security facility at Camp Delta on July 27, but Qahtani’s resistance didn’t change.
Frustrated, the case agent decided that he needed the help of Ali Soufan, the crack FBI agent whose questioning of Abu Zubaydah had identified Sheikh Mohammed and José Padilla.
• • •
Four lawyers from the Office of Legal Counsel were seated around a coffee table on a couch and two overstuffed chairs. They had gathered in the office of Jay Bybee, the assistant attorney general in charge of the unit, for one last debate about CIA interrogation tactics.
The resolution of the “severe pain” issue had dealt with only half of the restrictions in the antitorture laws. The infliction of “severe mental pain or suffering” that caused prolonged psychological harm was also illegal, and now the lawyers were wrestling with whether any of the proposed CIA practices violated that prohibition. The meanings were fairly explicit in the statutes—issuing threats of death, or inflicting pain that caused psychological problems, or using mind-altering drugs were all forbidden. So each proposed method had to be checked against those restrictions.
Even before the meeting was called, the lawyers had tossed out one of the CIA’s suggestions without much debate—interrogators could not bury detainees alive. While the coffins would have hidden oxygen tanks and cameras to watch for trouble, the people inside wouldn’t know about those safeguards or of their interrogators’ intent to pull them out if necessary. Clearly, the lawyers agreed, the tactic constituted a threat of death, so it was illegal. Also, warning detainees that they might be turned over to other countries for torture—something the CIA had already done—was against the law.
All but one of the other tactics passed muster. Slapping, stress positions, confinement, sleep deprivation—none of those, the lawyers decided, caused prolonged mental harm. A technique called “walling”—in which a thick collar would be placed around a detainee’s neck and used to slam him into a wall—was also acceptable, so long as the wall was false and flexible. But one method remained that John Yoo feared could cross the line.
“I’m concerned that the waterboarding measure might violate the statute,” he told the others. “I don’t have a problem with the other ones. I don’t think they come close. But that one, it’s either on the line or it’s a little over the line.”
The problem, Yoo said, was twofold. Since waterboarding creates the sensation of drowning, couldn’t that be considered as a threat of death? Also, he and Jennifer Koester had reviewed records from the military’s SERE training, in which soldiers and seaman were subjected to waterboarding. While there were no instances of long-term physical damage, some percentage of the subjects felt so traumatized by waterboarding that they requested psychological counseling.
“If soldiers are experiencing psychological issues from a controlled exposure to waterboarding, then we really have to consider what it would mean when it’s used in a real interrogation,” Yoo said.
It might be still possible for the CIA to use waterboarding, Yoo said, but only if the issue was kicked up to the president. Under his commander-in-chief powers, Bush had the authority to order actions he deemed to be of military necessity. If he instructed the agency to conduct waterboarding, Yoo said, then it might make a technical violation of the antitorture statute allowable.
Bybee and another lawyer, Pat Philbin, disagreed.
“I don’t think we need to address the constitutional issue, because I think under our statutory analysis, it’s okay to do,” Philbin said.
Yoo sat back on the couch. “Look, if it’s something we’re doubtful about, we should go ahead and discuss the constitutional side of it, because there could be disagreement,” he said. “There may be people who think it’s a violation of the statute. And in that case, we haven’t provided a complete answer about the legal issue.”
The two lawyers stuck to their guns. “We’re headed in a circle here,” Bybee said. “Let’s mull it over.”
• • •
The next day, Bybee contacted Yoo.
“I thought about it, let’s go ahead and do it,” he said. “Write up the constitutional issue.”
In a few days, the language was inserted into the next draft of the memo analyzing the CIA interrogation procedures. The president had the constitutional power in a time of war, it read, to order the performance of actions that otherwise might be deemed a violation of the relevant part of the antitorture statute—Section 2340A.
“We conclude,” the memo said, “that the Department of Justice could not enforce Section 2340A against federal officials acting pursuant to the President’s constitutional authority to wage a military campaign.”
Not only were prosecutors prohibited from charging the interrogators with a crime, but no laws—none—could be used to restrict Bush’s directive.
“Any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the commander-in-chief authority in the President,” the memo said. “Just as statutes that order the President to conduct warfare in a certain manner for specific goals would be unconstitutional, so too are laws that seek to prevent the President from gaining the intelligence he believes necessary to prevent attacks upon the United States.”
Now the lawyers were satisfied with the verdict on waterboarding. The technique, the memo said, was legal. But even if it wasn’t, the president could order waterboarding, and nothing in the law could stop him.
• • •
In his large corner office at Shearman & Sterling, Tom Wilner was behind his desk, angrily gripping a small sheaf of papers. It was past 2:00 P.M. on July 31, and federal judge Colleen Kollar-Kotelly had just handed down her ruling in the Rasul and al-Odah cases, brought by Wilner and other defense lawyers on behalf of several Guantanamo detainees. The decision was a slam dunk for the government.
She could not consider the merits of either case, Kollar-Kotelly wrote, because she had no authority over foreigners held at Guantanamo. “As the Court finds that no court would have jurisdiction to hear these actions, the Court shall dismiss both suits with prejudice.”
With prejudice. While the lawyers could appeal her decision, Kollar-Kotelly was barring them from ever refiling a petition.
As Wilner flipped each page, his rage grew. Not only was Kollar-Kotelly wrong, he thought; she was misrepresenting the case law to maneuver her way to what seemed like a predetermined outcome.
Guantanamo was not a United States territory, just a place that America leased—even though it had full control and authority there, and refused to comply with Cuban demands to nullify the treaty. Wilner felt sure that the Ralpho case, which established that the United States was required to grant rights to residents in Micronesia after World War II, established that an area where America was in control but had no sovereignty was governed by the Constitution. But, no—Kollar-Kotelly flipped Ralpho on its head: The ruling in that case had compared the status of Micronesia with that of American territories like Guam. Therefore, she concluded, Micronesia was, for legal analysis, a territory of the United States and Guantanamo was not. Wilner read that portion of the decision several times, dumbstruck; it made no s
ense.
Kollar-Kotelly had, in essence, established Guantanamo as a lawless land. American courts had no role, no controlling sovereign had ever signed a treaty on its behalf, and no one held there was protected by the Constitution or the Geneva Conventions. Detainees could be imprisoned without trial, without charge, forever—and no one could stop it. Could Bush order detainees shot without trial? Under Kollar-Kotelly’s decision, why not? Was there much difference between taking people’s liberty without charge and executing them without trial?
Kollar-Kotelly’s decision wasn’t just preposterous, Wilner thought; it was obnoxious. She dismissed out of hand Wilner’s attempt to give his clients legal redress for the conditions of their confinement. In hostile language, the judge essentially called Wilner a liar, saying his filing was a habeas corpus petition written deceptively to make it appear like something else. And, she wrote, since it was really a habeas petition, the precedents demanded that she toss it out.
Wilner swiveled in his chair toward his computer. He wanted to send an e-mail to Kuwait for one detainee’s father, Khalid al-Odah, to update him on the developments.
“We believe it is a very unsophisticated and uncourageous opinion,” he wrote. “We really thought we had outdone the government, but it seems not to have mattered to this judge. Hopefully, the judges on the court of appeals will have more courage.”
An e-mailed response from al-Odah arrived in Wilner’s in-box at about four o’clock the next morning. “We were prepared for such a ruling,” he wrote. “We should have the same spirit when we started and we should continue with the same spirit to the end.”
• • •
Jim Haynes was developing a lot of impatience for the work of Doug Feith, the undersecretary of defense for policy. Everyone in the administration knew that harmless Arabs had been inadvertently snatched up in Afghanistan and Pakistan, then delivered to Guantanamo. Dunlavey was complaining that some of those elderly and sick detainees—the ones who had been given nicknames like “half-dead Bob” and “al-Qaeda Claus”—ought to be released, and it was Feith’s job to get it done. But nothing was happening.
Not by design, though. Haynes believed that Feith was too disorganized to successfully manage a birthday party, much less the policies for a detention center. His dithering wouldn’t matter much if he was put in charge of the Pentagon dining room, but it mattered a great deal when he was assigned the task of establishing policies to free innocent nobodies locked up at the naval base.
Finally, Haynes had enough of waiting and went to see Feith.
“This system at Gitmo isn’t working,” Haynes said. “We have got to get a review process that’s better than what we’re doing. If we’ve got any mistakes, we ought to find them.”
Feith nodded. “Okay, yeah. Fine.”
Months passed, with Haynes riding Feith for a proposal. They finally hammered one out and sent it to Wolfowitz, the deputy defense secretary and a celebrated procrastinator in his own right. But this time he signed off on the document quickly and transmitted it to Rumsfeld for final approval.
The new process was in place for dispatching the luckless men from Guantanamo who had been inadvertently caught up in the hunt for terrorists. Many had languished in their cells for more than eleven months.
• • •
Abu Zubaydah stood flat against a concrete wall with a thick roll of cloth draped around his neck. The CIA officer in front of him grabbed the cloth and forcibly jerked him forward. The interrogator immediately shoved Zubaydah back, slamming his shoulder blades into the hard wall. He moaned in pain.
This was the first time that the CIA used “walling” on any detainee, and the interrogator was, inadvertently, doing it wrong. The Justice Department’s Office of Legal Counsel had approved exploiting the technique only if the subject was thrown against a false and flexible wall. That detail had escaped the attention of the CIA officers at the secret prison where Zubaydah was being held. The tactic they were using was not authorized; it would not be the last time interrogators went beyond the legal restrictions provided by the Office of Legal Counsel. The semantic fine points that the lawyers had invoked to separate potentially illegal acts from lawful ones had been lost in a big-league game of telephone—from the Justice Department to the CIA general counsel to the agency’s Directorate of Operations, and finally to the interrogators on the ground.
The manhandling had been going on for just under an hour. At the start of the session, the CIA officer had told Zubaydah that he would do whatever it took to squeeze important information out of him. He had begun by slapping Zubaydah in the face or the abdomen whenever he seemed to be putting up resistance.
After the walling, Zubaydah was placed inside a confinement box for several hours. While he was there, one of the CIA officers realized they were supposed to have used a false wall; they fetched some plywood and leaned it against the concrete. When Zubaydah was removed from the box, he was walled again into the sheet of wood.
When the first session ended, the interrogators chained Zubaydah into a standing position with his arms above his head so that he couldn’t sleep. He was naked, except for a diaper. In part to ensure that he had no solid food in his stomach, he was placed on a liquid diet—the doctors on-site feared he might throw up when he was waterboarded later and inhale chunks of his own vomit.
Before the interrogation resumed, a doctor and psychologist checked Zubaydah. Then, questioning, slapping, walling. This time, though, a new tactic was introduced—cold water was poured on him repeatedly for several minutes. Afterward, it was back to the chains, the diaper, and the liquid diet.
With each session, the aggressiveness increased. But still, the CIA officers believed he was not telling the full truth. He was saying nothing about the possible attack on a nuclear reactor, and administration officials believed that was imminent. Zubaydah, they felt sure, knew of information that could stop a 9/11 sequel, but he wouldn’t talk. So the interrogators checked with Langley and got the green light to waterboard him.
Zubaydah was brought into a room and strapped down on a gurney, which was leaned back about fifteen degrees. After Zubaydah exhaled, leaving his lungs collapsed, one of the interrogators held a black cloth against his mouth while another poured water from a plastic bottle onto his face. The liquid flowed into his mouth and nose; the cloth acted like a one-way valve, allowing water to run in but preventing Zubaydah from coughing it out. The fluid filled his head, sinuses, and throat. Even though, because of the incline of the gurney, no liquid could enter his lungs, Zubaydah sucked in the water as he struggled to breathe, experiencing an uncontrollable sense of impending death. He was a drowning man who could not drown.
After less than thirty seconds, the interrogator stopped pouring the water, the cloth was removed from Zubaydah’s face, and the gurney was elevated to a vertical position. Liquid flowed out of his head as the straps dug into his injuries. As expected, he vomited.
A moment passed. Then the gurney was leaned back again, the cloth placed over Zubaydah’s mouth, and water poured on his face. Terrified, Zubaydah urinated on himself.
He would be waterboarded eighty-three times during August.
• • •
Colin Powell could feel it. The administration was rushing toward a unilateral military showdown in Iraq. Several advisors were urging the president to disregard the talk about international coalitions; decisive action was called for, they argued—every minute of delay increased the threat Saddam posed to American security. Fretting over world opinion was a dangerous waste of time.
On the evening of August 5, Powell seized his chance to make the case for diplomacy. He met with Bush and Rice at the White House residence, prepared to spell out in the starkest terms the potentially ruinous, yet rarely stated, consequences of an invasion of Iraq.
It could well destabilize Saudi Arabia, Egypt, and Jordan—all allies in the war on terror. Bush would become the Western autocrat of a proud Muslim nation until some sort of indigenous g
overnment could be cobbled together.
Then there were the British. If Bush refused to pursue a diplomatic solution, he would be virtually thumbing his nose at the Blair government. The prime minister needed cover from the U.N. Jack Straw, the foreign affairs minister, had hammered home that point repeatedly to Powell. Ignoring the political minefield Blair was stepping through would not only imperil his political future, it would raise unnecessary tensions between Britain and America. Blair had, in many ways, become an indispensable ally. He could not be taken for granted.
Bush looked at Powell. “What should I do?” he asked. “What else can I do?”
“You can still make a pitch for a coalition or U.N. action to do what needs to be done,” Powell said.
But, he said, the president had to be aware of one possibility: The U.N. might resolve the problem by disarming Iraq and leave Saddam in power.
• • •
At Guantanamo, Ali Soufan was sitting in front of Qahtani, conducting another interview. The FBI agent was handling the interrogation in his usual style—trying to establish a relationship, discussing Islam, speaking about Arab culture—all in a calm but firm tone.
In session after session, Soufan stressed that, at some point, Qahtani would talk and that opening up now was the best choice. “You will find yourself in a difficult situation if you don’t speak with me,” Soufan said.
Qahtani refused to buckle. Soufan recommended that he be moved to an even more remote location at Guantanamo where his isolation would be complete. It was not a tactic commonly resorted to by law enforcement, but this was an uncommon case.
On August 8, after the bureau and the military approved of the plan, Qahtani was transported by ambulance from his cell in Camp Delta to the navy brig. There, his life took a desolate turn. Under Soufan’s instructions, the guards stopped speaking to him and would not allow him to look at them. When they entered his cell, they would cover their faces or order him to turn away. Seclusion, Soufan believed, would chip away at his captive’s resolve.
500 Days: Secrets and Lies in the Terror Wars Page 43