The Longest War

by Peter L. Bergen

  In the fall of 2003, Abu Omar was taken to another prison; it was here that he was trussed in the crucifixion position and raped by the guards. After seven more months of torture, a Cairo court found there was no evidence that Abu Omar was involved in terrorism and ordered him freed. He was told not to contact anyone in Italy—including his wife—and not to speak to the press or human rights groups. Above all, he was not to tell anyone what had happened.

  After agreeing to the conditions, Abu Omar was deposited at his mother’s home in Alexandria, Egypt. He promptly called his wife in Italy. It was the first time she’d heard from him in fourteen months. Italian investigators, who’d been monitoring Abu Omar’s phone in Milan for years, recorded the call. His wife asked him how he had been treated. He told her sarcastically, “They brought me food from the fanciest restaurant,” though nearly three weeks later, he admitted to her, “I was very close to dying.” He also spoke with a friend in Milan whose phone was also being tapped by Italian investigators. “I was freed on health grounds,” he told the friend in one of the recorded calls. “I was almost paralyzed; still today I cannot walk more than 200 yards.”

  And then, just as suddenly as Abu Omar had reappeared, he vanished again. Egyptian authorities had gotten wind of his calls to Italy. This time he was imprisoned for three years. He smuggled out a letter describing his ordeal, which found its way to the Arab and Italian press and international human rights organizations. Inevitably, that led to more torture.

  Was it illegal for American officials to transport Abu Omar to Egypt? Yes, according to the United Nations Convention Against Torture, which prohibits delivering someone to a country where there are “substantial grounds” to assume that he might be tortured. Were there substantial grounds to believe that transferring Abu Omar to Egypt would result in his being tortured? Plenty, according to a State Department report that detailed the methods used by Egypt’s security services during the year that Abu Omar was abducted and confined. Those methods included the stripping and blindfolding of prisoners; beatings with fists, whips, and metal rods; administering electric shocks; and sexual assault.

  The Bush White House routinely claimed that when the United States rendered individuals to other countries it received assurances that, as President Bush asserted at a press conference in March 2005, “They won’t be tortured. … This country does not believe in torture.” Several months later, Secretary of State Condoleezza Rice reiterated, “The United States has not transported anyone, and will not transport anyone, to a country when we believe he will be tortured.”

  But in the case of Abu Omar, Rice’s assertions were demonstrably false. Fourteen documented extraordinary renditions of suspected jihadist militants took place under the Clinton administration. Almost all of those prisoners were rendered to Egypt, where at least three were executed. Generally those prisoners faced some kind of trial. After 9/11 the pace of extraordinary renditions sped up dramatically. Prisoners were now also transferred to Jordan, Yemen, Morocco, Algeria, and even Libya, Sudan, and Syria. These prisoners were rarely put on trial and the transfers were motivated largely by a desire to extract information from the detainees by any means necessary. Fifty-three documented cases of extraordinary rendition took place between September 2001 and February 2008; only one prisoner specifically said he had not been tortured. Of the sixteen men who were released, eight claimed they were tortured and/or mistreated while in foreign custody; one died within weeks of being released. Nineteen of the rendered men have not been heard from since they disappeared.

  Philip Bobbitt, a leading American constitutional scholar, pointed out that the policy of extraordinary renditions “outsources our crimes, which puts us at the mercy of anyone who can expose us, makes us dependent on some of the world’s most unsavory actors and abandons accountability. It is an approach we associate with crime families, not with great nations.”

  Brad Garrett is a former FBI special agent who obtained uncoerced confessions from two of the most high-profile Islamist terrorists in American history: Ramzi Yousef, who bombed the World Trade Center in 1993, and Mir Aimal Kasi, who shot and killed two CIA employees outside the Agency’s headquarters the same year. Garrett dismisses the idea that useful intelligence can be garnered by depositing suspects in countries where they are tortured. “The whole idea that you would send anyone to some other country to obtain the intel you want is ludicrous,” he said. “If we want the intel there are approaches that will render the information without torture. The problem is that someone in the U.S. government became convinced that torture is the way to go, and so if we are not allowed to do it, then send them to someplace where torture is sanctioned.”

  Robert Dannenberg, who ran operations for the CIA’s Counterterrorist Center (CTC) from the summer of 2003 until late 2004, says that the critics of the rendition program should consider the effects that the fear of rendition has had on members of al-Qaeda and allied groups: “Are they looking over their shoulder because they don’t know whether they’re going to get a hood thrown over their head at any given moment of the day and get carried off to vanish? And the answer we got back for that question was, yes, that this is having a real chilling effect in the jihadists.” Dannenberg points out that the climate of the times was also important. “If you really want to understand the mentality of the Agency and its CTC particularly at the time, it was all about making sure 9/11 never happens again. We had absolutely clear instruction from the president of the United States, and from the Congress, frankly, do whatever it takes to make sure it never happens again, and that was the mind-set. And we felt that the rendition program was an important element in the make-sure-it-never-happens-again category.”

  Dannenberg says that the Justice Department produced legal guidance that the renditions were lawful, something that was important to him and his peers: “A lot of us had been around the block a few times performing that type of a mission for the executive and the legislative branch of our government, and then had later been hung out to dry. So to the extent that we could get assurance from the lawful authorities that what we were doing was legal and in line with the mission we’d been given, then we wanted to seek that reassurance.” CIA officials even bought professional liability insurance to pay for their legal bills if they were indicted or had to have a lawyer represent them before Congress, in case their participation in operations such as the rendition program came back to haunt them, as the Abu Omar case in Milan was to do for some two dozen CIA employees.

  Milan’s slate-gray skies glower over the city in both summer and winter, and charmless skyscrapers dominate the skyline of the financial, media, and fashion capital of Italy. It’s an unlikely setting for the operatic tale of Abu Omar’s CIA kidnappers and their nemesis, Deputy Chief Prosecutor Armando Spataro. Spataro launched the first-ever criminal case against American officials over an extraordinary rendition, but he was hardly a bleeding-heart Euro-liberal. A prosecutor for more than three decades, he had put droves of drug traffickers, mafia dons, and terrorists behind bars. Spataro had been building a potential terrorism case against Abu Omar for months before his kidnapping; as a result of his investigation, a number of Abu Omar’s acquaintances were convicted of terrorism offenses and in 2005 Abu Omar himself was indicted in absentia on charges that he had been recruiting fighters to go to Iraq. But his sudden disappearance into the bowels of Egypt’s prisons had set back Spataro’s probe dramatically.

  The prosecutor also didn’t appreciate being lied to—American officials had let it be known around Milan that Abu Omar had likely fled to the Balkans. It didn’t take Spataro long to get past this smoke screen and even track down an eyewitness to the abduction. But the bulk of his case would revolve around a rookie mistake made by the kidnappers: using cell phones, and unencrypted ones at that. Spataro’s investigators reviewed the records from three Italian cell phone companies with relay towers in the vicinity of where the Egyptian militant had disappeared and ran them through a commercial data-crunching program.
Of the more than ten thousand cell phones in use during a three-hour window around the time of the kidnapping, seventeen were in constant communication with each other. The investigators also determined that soon after the abduction, some of those cell phones’ users traveled to Aviano Air Base, a major American installation several hours east of Milan.

  The suspicious cell phones had been used to make calls to the American consulate in Milan and to numbers in Virginia (where the CIA is headquartered). The phones, most registered under bogus names, had also been used to make many calls to prominent hotels in Milan—hotels where, the Italian investigators found, a dozen Americans had stayed in the weeks before the kidnapping. They had registered under addresses in the Washington, D.C., area. And their movements matched those of the suspicious cell phones. Over the course of several weeks the Americans had blown more than one hundred thousand dollars on easily traceable credit cards at hotels such as the ultra-fancy Principe di Savoia, which offers a special room-service menu for dogs. Others took side trips to Venice, where they stayed at the five-star Danieli and Sofitel hotels.

  Next, Spataro’s investigators began reviewing records from Italian air-traffic control, NATO, and the main European air-traffic facility in Brussels. They discovered that a ten-seat jet had departed from the Aviano base a few hours after Abu Omar was abducted and flew to Ramstein Air Base in Germany. An hour after it landed, an Executive Gulfstream with the tail number N85VM departed Ramstein for Cairo, a jet that was owned by Phillip Morse, a partner in the Boston Red Sox and one of a number of individuals whose planes were occasionally rented by the CIA.

  One of the suspicious cell phones had been used to make hundreds of calls in the vicinity of both the Milan residence and the country house of the CIA’s station chief in Milan, Robert Lady. Armed with a warrant, Spataro’s investigators searched Lady’s country house in June 2005 and found that he’d gone on a ten-day trip to Cairo a week after Abu Omar’s abduction. The investigators also found surveillance photos of Abu Omar taken on the street where he was abducted.

  In February 2007, Abu Omar was finally released from his Egyptian jail. “Without the human rights and media campaign, I would still be in prison,” he said. When the Abu Omar kidnapping case went to trial in Milan, as expected none of the indicted CIA officials showed up. All of the officials were found guilty in absentia in 2009 and were sentenced to prison terms of up to eight years.

  The torture of Abu Omar was just one of many cases in the U.S. conduct of the “war on terror” that was at odds with America’s own legal traditions and international law and was part of a larger pattern in which the United States ceded the moral high ground in an often futile, counterproductive, and extralegal effort to protect itself. The president’s lawyers wrote briefs that allowed the government to abuse and coerce prisoners in ways that amounted to torture. Bush’s lawyers also ruled that prisoners in American detention were not to be accorded the protections of the Geneva Convention, international standards of conduct that the Eisenhower administration had first signed on to.

  Many key decisions about the conduct of the war on terror were made in secret by Cheney and Defense Secretary Donald Rumsfeld. The pair’s close working relationship went back decades to 1969, when Rumsfeld had hired the future vice president to be his assistant in the Nixon White House. On November 10, 2001, Cheney chaired a small group at the White House that authorized the president to detain anyone who had “engaged in, aided or abetted, or conspired to commit acts of international terrorism.” Those detainees were not presumed to be innocent nor were they entitled to a public trial.

  In a portent of the dominance that Cheney would wield over policy making in the Bush administration, Secretary of State Colin Powell and National Security Advisor Condoleezza Rice only found out about this decision after Bush and Cheney had met for their weekly private lunch on November 13, during which Cheney had given the president the four-page text of the detention directive to sign. Powell, who would be the official who would have to deal most directly with the leaders of the four dozen nations whose citizens would end up at Guantánamo, learned about this decision from CNN. “What the hell just happened?” Powell exclaimed to a colleague when he watched the report. The military order titled “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism” was news even to the Joint Chiefs of the military.

  In December 2001, faced with the problem of where to house prisoners as the Taliban fell, the administration alighted on the idea of holding them at Guantánamo Bay, a naval base the U.S. had leased from Cuba since 1903. As Rumsfeld put it on December 27, 2001, “I would characterize Guantánamo Bay, Cuba, as the least worst place we could have selected.” Guantánamo was attractive to administration officials because they believed it placed the detainees outside the reach of American laws, such as the right to appeal their imprisonment, yet it was only ninety miles off the coast of Florida, so it was accessible to the various three-letter agencies that would need to travel there to extract information from what was believed to be a population of hundreds of dangerous terrorists. But as the constitutional scholar Philip Bobbitt points out, the notion that Guantánamo was not subject to American laws simply because the territory was a long-term lease from Cuba was a flimsy and Jesuitical interpretation of the law: “The whole theory of the U.S. Constitution is that it applies laws to the acts of the State.”

  On January 9, 2002, two days before prisoners arrived for the first time at Guantánamo from Afghanistan, John Yoo, a thirty-four-year-old lawyer in the White House Office of Legal Counsel, circulated a draft memorandum to Bush officials that would provide much of the legal reasoning for the administration’s future actions concerning the detention and interrogation of prisoners. Yoo, a former law professor and clerk to Supreme Court Justice Clarence Thomas, concluded that neither the Taliban nor al-Qaeda were entitled to prisoner-of-war status, or the protections of the Geneva Convention. Yoo reasoned that al-Qaeda was a stateless entity not protected by Geneva and that the Taliban ran a “failed state,” which meant that their treaty rights could be ignored. Much of Yoo’s reasoning made little sense. The concept of a “failed state” wasn’t recognized by international law. Also, Afghanistan was a signatory to the Geneva Convention, and while the United States had not officially recognized the Taliban government, U.S. officials had met with Taliban officials on many occasions before 9/11 and had treated them as the de facto government of Afghanistan. In addition, there were no clauses in the Geneva Convention allowing states to unilaterally opt out of any of its provisions. And Article 3 of the Convention banned “humiliating and degrading treatment” of prisoners even in the cases of conflicts that were not between two states. The Geneva Convention plainly stated that all prisoners in any type of conflict were given certain rights.

  William Taft IV, a patrician lawyer who was a great-grandson of President Taft and had served in Republican administrations going back to Nixon, submitted the State Department’s response to Yoo’s memorandum. Taft described Yoo’s reasoning as “seriously flawed,” “procedurally impossible,” and “unsound.” Taft pointed out, “In previous conflicts, the United States has dealt with tens of thousands of detainees without repudiating its obligations under the [Geneva] Convention.” (Four years later the Supreme Court would endorse this elementary point when it granted Geneva protections to all prisoners held in American custody.)

  But it was Yoo’s arguments that would win the day. On February 7, 2002, Bush signed an executive order endorsing Yoo’s opinion that the Geneva Convention did not apply to al-Qaeda and asserting that the Taliban were “unlawful combatants.” Bobbitt, who had served in Democratic and Republican administrations going back to President Carter, made an acute observation about the contorted policy implications that flowed from the Bush administration’s decision to treat prisoners as “unlawful combatants” who could also be prosecuted for crimes. “Like prisoners of war, these persons may be held indefinitely without formal charge. Like crimin
als, they can be tried and sentenced for planning or carrying out acts of violence for which soldiers are not prosecuted.”

  Given the fog of propaganda surrounding the Guantánamo prisoners—whom Rumsfeld described on a well-publicized visit to the base on January 27, 2002, as “among the most dangerous, best-trained, vicious killers on the face of the earth”—it may be surprising to learn that only some 5 percent of all the detainees held at Guantánamo were ever apprehended by U.S. forces to begin with. Why is that? Almost all of the prisoners there were turned over to American forces by foreigners, some with an ax to grind, or more often for a hefty bounty or reward. After U.S. forces invaded Afghanistan in late 2001, a reward of five thousand dollars or more was given to Pakistanis and Afghans for each detainee turned over. While rewards can be a valuable law enforcement tool, they have never in the past absolved law enforcement authorities of the necessity of corroborating the information that motivated the reward. But the U.S. military accepted the uncorroborated allegations of the award claimants with little independent investigation.

  As a result of the fact that many in Guantánamo were either foot soldiers for the Taliban or innocents swept up in the fog of war, FBI Special Agent Daniel Coleman, who was arguably the most knowledgeable person in the U.S. government about al-Qaeda, says as a source of information the Guantánamo camp was a bust: “I never saw anything useful.” Coleman wasn’t the only FBI veteran who felt this way. Michael Rolince, a top FBI counterterrorism official, says, “I don’t recall any information that was relevant [to my office] coming out of Guantánamo.”