True Faith and Allegiance

by Alberto R. Gonzales

  The rules had changed. We were now dealing with a whole new breed of enemies who could strike in ways we had hardly considered. Eleven days earlier, our country had been shaken again, this time by threats of bioterrorism when a powdery white substance was found in a letter received and opened by a staff member of Senate majority leader Tom Daschle. The hand-printed envelope contained anthrax, a deadly spore-forming bacterium that can enter a body through the skin, by breathing it, or by eating anthrax-tainted food. Inhaling anthrax spores the size of a speck of dust can be fatal, usually within a few days unless treated with antibiotics such as ciprofloxacin (Cipro) or doxycycline, drugs that were not readily stocked in large amounts by most metropolitan pharmacies. Anthrax, after all, was something that occurred around cattle, sheep, goats, or horses. Now it was feared that anthrax had gotten into the ventilation system of the Hart Senate Office Building, and may have been inhaled by people throughout the complex.

  When tests confirmed that anthrax contamination had also been detected in the Dirksen Senate Office Building’s mailroom, as well as other locations in Hart, all congressional buildings were closed. Many people on Capitol Hill believed the anthrax was the second round of terrorist attacks coming on the heels of 9/11.6

  At least twenty-eight people in Daschle’s office tested positive for anthrax exposure, which sent the anxiety level soaring. Hundreds of people who worked on Capitol Hill lined up for nasal swab tests. Thousands more were tested over the next few days. Meanwhile, we waited, hoped, and prayed. Although several people were extremely sick, none of those exposed in the senator’s office had died.

  Then a few days after the anthrax letter had been opened, an individual who worked and lived miles away from Capitol Hill was admitted to a community hospital with signs of anthrax exposure. The patient was a postal worker.

  When he first learned this, Senator Bill Frist, a heart-transplant surgeon who was providing information to the public, was alarmed. Frist recalls, “The importance of this seemingly innocuous bit of information could not be overstated: A person who had not been anywhere near the Hart Building . . . now had signs of anthrax. It would have been impossible for someone miles away from the location where the letter was actually opened to have inhaled spores from the anthrax-laced envelope. I feared that the news could portend a much larger scenario. Was this an expansion of terrorist activity? Were there other deadly letters going around the country? Would we start seeing cases elsewhere? Were postal workers safe, or would we have to shut down the mail system in Washington, perhaps even nationally?”7

  The first postal worker who had been exposed died the following day. Cause of death? Anthrax inhalation. A second postal worker passed away as a result of anthrax inhalation a short while later. Postal facilities in the DC area were instructed to pass all mail through radiation machines because gamma rays could kill anthrax. All mail sent to government offices, including the White House, was thoroughly irradiated. Nearly ten thousand people in Washington received Cipro during that time. Five people eventually died because of anthrax—not all of them in the Capital area—and seventeen others were severely sickened.

  Besides the human toll and the enormous costs of trying to treat thousands of people who might have been exposed, the anthrax attack reminded all of us in the White House how vulnerable our homeland was to similar attacks. One letter had shut down the entire legislative branch of the government. Following the attack, the Hart Senate Office Building remained closed for three months. Meanwhile, another anthrax-laced letter was intercepted and opened safely in a laboratory. The letter had been addressed to Senator Patrick Leahy, chairman of the judiciary committee.

  The FBI interviewed more than five thousand people trying to discover the perpetrators of the anthrax attack, but the case was never solved.

  With Washington still reeling from the aftermath of 9/11, the deadly anthrax attacks added another layer of heaviness and wreaked fear and near panic in the capital. Concerns about other attacks—including everything from chemical and biological warfare to nuclear suitcase bombs—were not the stuff of science fiction movies any longer. They intruded in our everyday lives. People were clearly and justifiably worried that our nation was not safe.

  We soon learned that not even the White House was totally secure. On October 18, 2001, the air sensors in the White House tested positive for botulinum toxin, one of the most lethal substances on earth. A few grams of the stuff dispersed in the air over a city could kill millions of people. From my vantage point in the White House, I wondered if we might be targeted next. I also worried about attacks that might affect my family.

  The White House biodetectors had indicated at least two separate “hits,” which meant that anyone in the building at the time might have been exposed or had possibly inhaled the deadly toxin without even knowing it. That included the president and First Lady, Vice President Cheney, Karl Rove, Karen Hughes, Harriet Miers, all of the White House staff, the maintenance crew, anyone who may have been visiting at the time the botulinum was dispersed, and, of course, me.

  The president had left for Shanghai the previous day, his first trip out of the country since 9/11. Vice President Cheney called to inform him of the potential bio-attack. Deputy National Security Advisor Steve Hadley explained the seriousness of the threat to the president and told him that the FBI was conducting tests on mice. The next twenty-four hours would be crucial, Steve told him. “If the mice were still scurrying around, feet down, we would be fine. But if the mice were on their backs, feet up, we were goners,” the president recalled later.8

  The night of the eighteenth, I was on the phone with Tom Ridge (recently appointed Homeland Security advisor), John Ashcroft, and Steve Hadley past one o’clock in the morning, along with doctors from the CDC, attempting to deal with the botulinum threat. The doctors focused on data collection and wanted to determine the medical backgrounds for all of us who had possibly been exposed. Most early indications were good, so we hoped we didn’t have a problem, but we wouldn’t know for sure until additional tests results were analyzed in the morning, after the twenty-four-hour danger period had expired, when symptoms such as paralysis would begin to show in anyone exposed.

  When we felt certain the botulinum scare was a false alarm, Steve called Condoleezza Rice, who was traveling with the president’s entourage. His message was simple but reassuring: “Feet down, not feet up.”9

  Somewhere in the midst of the crisis, somebody suggested that those of us in the White House receive various inoculations, which we did. There were no such provisions for our family members. That wasn’t surprising, since there was no contingency plan for spouses or family even in the event of a nuclear attack or an attack such as 9/11. Plans existed to move key government officials to safe locations, but other than the First Lady and the vice president’s wife, nothing similar was in place for spouses or families. In the immediate aftermath of 9/11, some of the White House wives lamented that they were in the dark, so Becky and Kathi Card called Joyce Rumsfeld and Alma Powell and the other “White House widows” together. Alma and Joyce had been through similar circumstances during Desert Storm, when they didn’t see their husbands for long periods of time. Alma in essence told the ladies they were like military families when soldiers deployed. She and Joyce helped the spouses form a “chain of concern” telephone tree.

  Andy Card’s wife, Kathi, a Methodist minister, was a spiritual mentor to Becky during that time. They talked together and prayed together frequently, and Becky found added strength through their friendship.

  I’m often asked, “Were you afraid?” No, I really wasn’t. It’s not that I’m so brave, but like most others working in the White House during that time, I knew I had an important job to do. Americans expected us to protect them. I never thought about my mortality or my place in history, but later I was gratified when I learned that Hispanics in America were especially proud of my role in helping our country during those crucial days.

  On October 19, 2001, the
first of US Special Forces made it into Afghanistan and linked with our allies from the Northern Alliance. A few weeks later, the Northern Alliance forces captured three hundred Taliban and al-Qaeda soldiers and held them in a nineteenth-century mud-and-brick fort near the town of Mazar-e-Sharif. On November 25, when two CIA agents attempted to question a group of the prisoners in an open area outside their cells, a prisoner leaped toward the agents and began clawing them, setting off a prison riot. It took nearly three days to put down the rebellion. In the process, more than two hundred prisoners were killed and one of the CIA agents, Johnny Micheal Spann, was viciously killed—the first American to die in Afghanistan. Don Rumsfeld later wrote that “his body was booby-trapped with a hidden grenade by the al-Qaeda and Taliban prisoners so those recovering his remains would be wounded or killed.”10

  Among the captured who survived the battle was an American who had aligned himself with the Taliban, John Walker Lindh.

  The incident brought into stark focus many of the issues on my desk after 9/11. Clearly, the al-Qaeda and Taliban prisoners our forces were sweeping up on the battlefield were not docile, defeated soldiers who intended to live out their remaining days in American prisons. They were vicious, malevolent killers who would take every opportunity to kill again. How were we going to classify and deal with these enemies of America that we captured and detained as prisoners? What, if any, rights did these terrorists have as prisoners of war designated by the Geneva Convention III on the Treatment of Prisoners of War (GPW)? Even more complex, how were we to handle other Americans we might discover working in collusion with the enemy?

  One of the key issues I coordinated among administration lawyers was defining how the Geneva Conventions applied in this new type of war. GPW had been developed by countries fighting traditional, conventional wars, in which the combatants wore uniforms into battle, were under the command of established hierarchies, and agreed not to purposely kill innocent people. None of these practices were followed by the terrorists who attacked America.

  I was not an expert on the Geneva Conventions, so I conferred with lawyers from the Departments of Justice, State, and Defense, as well as the CIA. Like most Americans, I supported the foundational principles of Geneva, assuring the basic humane treatment for those engaged in or affected by war. But as I explored the rules with the administration lawyers, some of the points of GPW struck me as being outdated and not relevant or reasonably applicable for the new type of war in which we were engaged—a war against non-state terrorists who did not fight according to the laws of war—and in which information was our primary defense against future attacks. In a document clearly marked “DRAFT” that I circulated to people on our staff and to several cabinet secretaries for their input, a memo that was never intended to become public, I included the word quaint when referring to certain GPW provisions—such as providing athletic uniforms, commissary privileges, scientific instruments, and a monthly allowance to captured enemy soldiers. In my judgment, these few provisions and others similar were obsolete, antiquated rules put into place after World War II.

  I wasn’t the only one to make that observation. In a report about our detention facilities at Guantanamo, the British foreign affairs committee later said something similar, that the provisions of the treaty were outdated and needed revision.11 The protections of the Geneva Conventions were intended to encourage nations at war to play by the rules. It was an inducement saying, “If you fight according to the laws of war, you will receive all of these protections.”

  This was crucial because in this new type of war, acquisition of fast, accurate information was critical. If Geneva applied to the people we were capturing, captives could be asked only for their name, rank, and serial number. We could not induce the prisoners to talk, a restriction that was not going to help us in thwarting the next attack by al-Qaeda, something we all worried could happen at any time. Many of our lawyers felt it was important that we not hamstring our intelligence gathering, including any information we might gain by lawfully interrogating captured al-Qaeda and Taliban.

  On the other hand, Secretary Colin Powell argued that we had always applied Geneva’s provisions in previous wars and conflicts, even when the international law did not require that we do so. We were a country intent on taking the high road. Relying no doubt on his experiences as a soldier, Powell was concerned that by not applying the convention rules, we could be undermining our own military’s culture that emphasized maintaining the highest standards of conduct, even in combat.

  In pulling together the draft, I drew from the wisdom around me, did my best to represent the competing views, and sent it out. The very next morning, my draft memo appeared on the front page of the Washington Times. The document had been leaked to the conservative publication by someone apparently wanting to impugn Powell’s conservative standing by implying that he was catering to terrorists. That issue disappeared quickly, but my comments were seized upon as outrageous. “Al Gonzales thinks the great Geneva Conventions are quaint?” the critics seemed to be saying. “Gonzales doesn’t believe in the values of the Geneva Conventions!” That was sheer nonsense, and not what I said or intended, but that didn’t matter to many Washington players and critics of the Bush administration.

  In hindsight, had I known the draft was going to be broadcast to the entire world, I might have used a different word than quaint when referring to the obsolete provisions. The word hurt me professionally, and more importantly, I felt it hurt our war efforts. But I was not intending to make a public statement; I was hoping to elicit insight and suggestions internally regarding what rules applied to terrorists we engaged on the battlefield before I took a recommendation to the president regarding the protections of the Geneva Conventions.

  Dealing with the blowback from the leak was a lesson to me: don’t write down things not intended for public consumption, and by all means, don’t circulate documents that include controversial positions or statements—especially if they are not final—to other agencies. We didn’t have to function that way in Texas, but in the White House, I got in the habit of communicating verbally, or scrawling messy, ambiguous notes that only I could interpret.

  Considering whether Geneva should apply to members of al-Qaeda, the logical and legal answer was no. Al-Qaeda was not a nation-state; they were not signers of the Geneva Conventions and could not have been, even if they had desired to do so, since only nations could ratify treaties, not individuals or rebel groups with allegiance to no particular country.

  Furthermore, according to GPW, for soldiers to be protected as prisoners of war, they must abide by four requirements: they must operate within a responsible command structure; they must wear identifiable uniforms; they must carry their weapons openly; and they must obey the laws of war, which meant they were to avoid killing innocent people not engaged in battle. Al-Qaeda flagrantly violated every one of Geneva’s conditions on 9/11 and afterward. Al-Qaeda does not obey the rules of war, does not wear identifiable uniforms, does not limit fighting to combatants, and has no qualms about killing innocents. As a corollary, al-Qaeda does not keep prisoners. It cuts off captured soldiers’ heads, as well as those of other nonmilitary types they deem worthy of death, such as Wall Street Journal reporter Daniel Pearl. According to the Department of Justice, they were not legally entitled to prisoner of war status, nor to the protections afforded to POWs.

  Considering how we were going to deal with captured Taliban was more difficult. Not because they kept the rules, but because it could be argued that the Taliban was the de facto government in Afghanistan prior to the war. Before the Taliban had taken control, the then government of Afghanistan had indeed signed the Geneva Conventions, so some of our lawyers wondered if that was enough. But the Taliban had never really been recognized as Afghanistan’s governing body, so they did not represent a nation-state. Attorney General Ashcroft, as well as other officials within our administration, contended that Afghanistan was a “failed state,” and the Geneva provisions
should not apply. Moreover, they had forfeited the right to prisoner of war protections because they didn’t follow the laws of war, as noted earlier. Therefore, according to the DOJ, the Taliban were not legally entitled to Geneva’s protections.

  The one variable was the fact that the United States military would ostensibly be treated according to Geneva if our soldiers were captured only if we were applying Geneva to the people we captured. President Bush was deeply concerned about that. The principals on the National Security Council, as well as the lawyers, debated these issues extensively. The discussions were always respectful, but they were also passionate. The president listened carefully to all sides, determined to make a decision that would give him the flexibility we needed to gather information, including information from the people we had captured, that was absolutely necessary to protect our country. It disturbed him that terrorists had been operating inside the United States, planning the 9/11 attacks for some time, and we hadn’t been aware of it.

  Based in large part on a letter from the attorney general, I recommended—and the president accepted my recommendation—that the Geneva Convention’s normal prisoner of war protections afforded to soldiers who fight according to the accepted laws of war should not apply to terrorists who do not. I acknowledged that some of our allies might not agree with us, but that should not influence our decision. I also emphasized that the United States should still provide captured enemy combatants with the highest level of humane treatment, a policy I knew President Bush readily endorsed.