This was the man suspected of being the twentieth hijacker for the 9/11 attacks, Ashcroft said, but who had already been arrested weeks before the strike took place. Bush had stated that military commissions were another option and that, when appropriate, terrorism trials would be conducted in civilian court. That would be the best choice for Moussaoui. He would be the first suspected al-Qaeda member tied to 9/11 who would be brought to justice. A public trial would allow the American people to have a greater understanding of the evil facing the country.
“This case has already been presented to a grand jury,” Ashcroft said. “We are ready to indict, as soon as tomorrow.”
“If this was handled in a criminal court, civilian criminal court, would national security be endangered?” Bush asked. “Would sources or methods be compromised?”
“No, sir,” Ashcroft replied.
Moussaoui had been arrested by the FBI inside the United States. Proper criminal procedures had been followed—Moussaoui had been read his rights, no searches had been conducted without warrants, and only civilian law enforcement had been involved in the case. No intelligence agencies played a direct role in the investigation.
Ashcroft finished his presentation. Bush nodded thoughtfully.
“I agree,” he said.
• • •
The next afternoon, an al-Qaeda lieutenant radioed General Zaman of the Eastern Alliance to negotiate terms of surrender.
As a Pashtun, Zaman could scarcely refuse. His people’s identity and social structure are defined by a unique social code called Pashtunwali. Under its precepts, Zaman was obligated to grant personal protection to anyone who requested it, even an enemy. Had he turned away the al-Qaeda entreaty, Zaman would have been accepting a great shame by abandoning his honor.
A translator ran to a sergeant on Alpha Team 572.
“Stop,” the translator said. “No more bombs.”
That was a good sign. Air assaults were always halted when Eastern Alliance forces moved forward, to avoid shelling them by mistake. Then, when they seized their new position, the attack resumed.
Time passed—ten minutes, twenty minutes, more. Usually the Eastern Alliance troops reached their destination faster than this. Perplexed, the staff sergeant approached the translator.
“Why are we stopping for so long?” he asked.
The translator waved his hands. “No, no. Don’t drop any more.”
• • •
Bin Laden, still hiding miles from his fighters, knew nothing about the supposed negotiations being conducted with the Eastern Alliance. Instead, they were being orchestrated by Ibn al-Shaykh al-Libi, the commander for the Tora Bora fight and an al-Qaeda loyalist who was considered by the Americans to be one of the terrorist group’s most dangerous members. Yet here he was, ignoring his longtime leader and forging a policy of his own.
Over the past few days, al-Libi’s opinion of bin Laden had sunk. The vaunted jihadist leader was blithely putting his fighters in harm’s way while keeping himself at a healthy distance. Even when the three clusters of al-Qaeda fighters moved back into Tora Bora, bin Laden had seemed more concerned about his own self-preservation than that of his men and had implored al-Libi to lead his group. But al-Libi had refused. Instead, he chose to protect a squadron of untested al-Qaeda combatants by guiding them to the mountains.
Just as damning as bin Laden’s faintheartedness, in al-Libi’s mind, was his strategic ineptitude. By leading his men into a single location, the al-Qaeda leader had increased the risk of pulling back farther. If the fighters attempted a mass escape, al-Libi knew, they would have to move into the open, blundering their way toward Pakistan, potentially making them easy prey for the American bombers roaming the skies.
More than eighty of the men who had followed bin Laden into the mountains were young, naive, and untrained. He obviously felt no compunction about sending these novices to pointless deaths, but al-Libi did. He had to get them out of there, and their best chance for survival would be to trick the Alliance and the Americans into suspending the bombing campaign for about two days. That reprieve would enable al-Libi to lead the men into Pakistan and safe passage to their embassies there. But bin Laden would not be welcome to tag along. The al-Qaeda leader, al-Libi decided, was on his own.
With the bombing pause, al-Libi prepared for the march to Pakistan. Everything now depended on how long the Americans could be held off by the “surrender” gambit.
• • •
The next morning, American and British commandos arrived at a sparsely treed area and saw Zaman with his men. The Pashtun commander was sitting on a boulder, smoking a joint. Something big was going on, Zaman told an American soldier—al-Qaeda was cutting a deal for its surrender. No more fighting was allowed until the details were worked out.
The Special Forces teams were doubtful that this development was anything more than an al-Qaeda stalling tactic, but deferred to their indigenous allies. As the negotiations dragged on, the American fighters grew itchy. Zaman occasionally returned with al-Qaeda’s terms, such as a demand that they be allowed to carry weapons at the site of their surrender. Absolutely not, the Americans said. This deal had to be unconditional.
Despite Zaman’s unwavering confidence, no al-Qaeda fighters appeared. The bombing resumed.
• • •
A ground station of the highly secretive National Reconnaissance Office positioned a satellite over Tora Bora. Images captured from hundreds of miles above the earth were transmitted to the CIA via secure microwave links, from the top of the NSA headquarters at Fort Meade to the agency’s headquarters in Langley.
The mountainous section of eastern Afghanistan ran like a scar near the country’s border. On the eastern side, the images showed Pakistani military positions. Huge pathways remained unguarded that al-Qaeda could use to escape into the tribal areas of Pakistan.
Hank Crumpton from the CIA was in the Situation Room with Bush and Cheney, displaying the satellite images and explaining how, with so much of the area wide open, bin Laden and al-Qaeda could slip away. The briefing, the agency hoped, would persuade Bush to order the Pentagon to secure Tora Bora, despite the foot-dragging by Rumsfeld and Tommy Franks.
“Do the Pakistanis have enough troops to seal the border?” Bush asked.
“No, sir,” Crumpton replied. “No one has enough troops to prevent any possibility of escape in a region like that.”
Still, Army Rangers needed to be deployed to Tora Bora if there was to be any reasonable hope of catching bin Laden. Bush and Cheney heard the message.
• • •
That same afternoon, Ashcroft stepped up to a podium at the Justice Department conference center flanked by FBI director Mueller. Cameras flashed as he began to speak.
“Today, three months after the assault on our homeland, the United States of America has brought the awesome weight of justice against the terrorists who blithely murdered innocent Americans.”
That morning, a federal grand jury had indicted Zacarias Moussaoui, Ashcroft said, on charges that he conspired with bin Laden to murder thousands of people.
“For those who continue to doubt al Qaeda’s role in the murders of September 11, our indictment offers thirty pages of chilling allegations of al-Qaeda’s campaign of terror,” he said. “The indictment today is a chronicle of evil.”
Ashcroft congratulated an array of officials for their investigation and hard work on the case. He made no mention of the FBI and immigration agents in Minnesota who had arrested Moussaoui, recognized the danger he presented, and unsuccessfully fought for weeks to persuade official Washington to pursue a case. Instead, it was official Washington taking the bow.
• • •
No one had given the Defense Department a heads-up about the criminal charges against Moussaoui. And with the battles in Afghanistan on the front burner, few Pentagon officials even noticed Ashcroft’s announcement.
The next morning, Wolfowitz and Haynes were scheduled to testify about mi
litary commissions before the Senate Armed Services Committee. They were riding in the backseat of an armored Suburban on the way to Capitol Hill when they first heard about the indictment.
It was a heart-stopping moment. In a matter of minutes, they would be in front of the senators responsible for Defense Department oversight, being asked to justify why a new system of justice was needed for terrorists. The legislators were sure to demand that they explain why, if military commissions were necessary, Moussaoui would be tried in civilian court.
“What do we say?” Haynes asked.
“Hey, look,” Wolfowitz said. “We’ve got to say the truth. We didn’t know about it.”
They arrived at the Russell Senate Office Building and made their way to Room 325. Senator Edward Kennedy raised the Moussaoui indictment in his opening statement.
“We’re talking about a person who is going to be charged with the kinds of crimes that threaten American citizens,” he said. “That decision is a clear expression of the administration’s about competency in the federal courts and where all the rights and protections will be accorded to the defendant in that.”
He glanced over his glasses at the witness table. “We are now considering military tribunals, and we’re going to be interested in what protections are going to be there.”
Wolfowitz gave his prepared remarks and the senators asked their questions. Kennedy brought up Moussaoui again.
“Mr. Wolfowitz,” he said, “if you would be good enough to tell us what were the considerations in making the decisions to proceed in the federal courts as opposed to the military tribunal.”
“To the best of my knowledge,” Wolfowitz replied, “that was a decision made by the Justice Department.”
“You weren’t involved in this?”
“I was not personally,” Wolfowitz said.
He turned toward Haynes. “I don’t believe we were as a department, were we?”
Haynes leaned toward the microphone. “No, we were not involved.”
Kennedy looked puzzled. “Do you have a view, Mr. Secretary, on that?”
“No,” Wolfowitz replied. “I don’t.”
The questioning continued for another twenty minutes. Then Senator Joseph Lieberman returned to the Moussaoui case.
“I’m troubled by the precedent that this sets as to what the administration will do regarding those who have violated the laws of war,” he said. “If we will not try Zacarias Moussaoui before a military tribunal—a noncitizen alleged to be a co-conspirator that killed four thousand Americans—who will we try in a military tribunal?”
Wolfowitz had little to say in reply. No one had consulted the Pentagon, he repeated. Lieberman expressed relief; at least the Defense Department hadn’t been involved in something so incomprehensible.
“I think it takes a large risk to bring him before the district court, with all the rights that he would have there that he doesn’t deserve, frankly,” Lieberman said.
The hearings ended, but the senators’ grumbling about the Justice Department continued even after the observers left. The attorney general had sandbagged the Pentagon and, in turn, shown disrespect to the Armed Services Committee. Aschcroft had been a senator, a member of the club, the legislators muttered. He should have known better.
• • •
For more than two weeks, Dr. Ayman Batarfi had waited amid the bombing, death, and starvation in Tora Bora to meet with whoever was in charge.
Trained as an orthopedic surgeon, Batarfi had worked at a clinic in Jalalabad and fled the city when the Northern Alliance attacked. He had hoped to reach safety in Pakistan and headed east toward the mountainous region.
Now he was trapped, with no medical supplies to help the wounded. They couldn’t even light a fire for warmth or to cook food; that would give the bombers a target. Batarfi struggled with the arduous existence. His throat and eyes burned from the severe cold, and he feared he would not survive. He yearned to get out of Tora Bora and believed his only hope was to gain the help of the man in charge.
He had asked for someone to arrange a meeting but heard nothing in response. Finally, after fifteen days, an armed guard approached to inform Batarfi that they would take him to meet their leader. They escorted him on a four-hour walk to an area that appeared deserted. Bin Laden emerged from behind some trees and called over Batarfi.
“I would like to leave the mountain,” Batarfi said.
Bin Laden’s face was expressionless. “I don’t even have a place to go,” he said. “I can’t leave the mountains myself.”
The comment struck Batarfi. Bin Laden had dragged his people into this catastrophe, had pulled back to Tora Bora without preparations or supplies. But in his first words, he didn’t offer plans for saving his dying fighters, the men he had left in the bombing sites while he cowered far away. Instead, his first thoughts were about himself.
Did bin Laden care about anyone else? Batarfi wondered. Had he placed his men in groups, hours away, to distract the Americans by giving them a bigger target to bomb?
For a man who preached the glories of martyrdom, bin Laden certainly seemed quite resistant to the idea of sacrificing his own life for the cause he supposedly held so dear.
• • •
At a CIA guesthouse in Kabul, Gary Berntsen, leader of the Jawbreaker forces in eastern Afghanistan, was yelling at Major General Dell Dailey, commander of the Special Operations Forces in Afghanistan.
The Rangers were needed now, Berntsen barked. This was the make-or-break. Bin Laden was going to get away!
The orders from Central Command were clear, Dailey replied. No more American troops would be deployed. The military was worried about alienating the Afghan allies.
“I don’t give a damn about offending our allies,” Berntsen yelled. “I only care about eliminating al-Qaeda and delivering bin Laden’s head in a box!”
There would be no more soldiers, Dailey repeated. Tommy Franks’s position was firm.
• • •
That same day at Tora Bora, the snow was deep, the air was thin, and Osama bin Laden was composing his will.
“Allah bears witness that the love of jihad and death in the cause of Allah has dominated my life,” he wrote. He had fought the pagans, and would wake reciting the verses of the Koran that called for the battle.
He finished with messages for his family. He instructed his wives not to remarry. And he apologized to his children for having dedicated his life to jihad.
• • •
Two members of the Jawbreaker team were listening to the Yazoo radio that had been taken off a dead al-Qaeda member. A voice came on.
“Forgive me.”
Bin Laden. Words of regret poured out of the radio, effusive apologies for getting his men trapped in Tora Bora under the withering assault of American airstrikes. There were sounds of mules and people moving. The radio went dead.
• • •
In the gray and freezing dawn near Tora Bora, two guides led al-Libi and his young charges across the Afghani-Pakistan border in Nangarhar Province, where the al-Qaeda leader hoped to reach safety.
But in reality, the guides were delivering them into a trap. The eighty-four fighters arrived on December 142 in an area of Shiite tribes who loathed the Taliban, al-Qaeda, and their Sunni fundamentalist doctrine. A man posing as their host persuaded the fighters to turn over their weapons, then gathered them in a mosque. Immediately, Pakistan forces burst in and arrested them.
The two guides were paid handsomely for their deception. Al-Libi was the most important al-Qaeda leader captured since the war began. Ultimately, his detention and brutal interrogation would contribute to the deaths of thousands of American soldiers in Iraq.
• • •
In Maryland, Bruce Ivins sat down at his home computer and typed an e-mail to a friend. He was sending her a poem, he wrote, about having two people inside him.
I’m a little dream-self, short and stout
I’m the other half of Bruce—when h
e lets me out.
When I get all steamed up, I don’t pout.
I push Bruce aside, then I’m free to run about!
Hickory dickory Doc—Doc Bruce ran up the clock.
But something happened in very strange rhythm.
His other self went and exchanged places with him.
So now, please guess who
Is conversing with you.
Hickory dickory Doc!
Bruce and this other guy, sitting by some trees,
Exchanging personalities.
It’s like having two in one.
Actually, it’s rather fun!
Two days later, just past 8:30 A.M., Ivins e-mailed one of his bosses. When, he asked, would his team get access to more anthrax spores?
• • •
On December 16, bin Laden left Tora Bora for the last time. Accompanied by some guards, he slipped, unnoticed and unimpeded, into Pakistan. The Northern Alliance and American Special Forces arrived victorious at the al-Qaeda caves the next day.
• • •
On a cold evening in late December, Gonzales took a seat at an oval table, joining a dozen other officials in a large suite across the street from the White House.
The room—called, unimaginatively, the Former Office of the Secretary of the Navy—is one of the most opulent in all of Washington. Ornamental stenciling and allegorical symbols of the Navy Department festooned walls hand-painted in Victorian colors. A floor of mahogany, maple, and cherrywood connected two fireplaces made of Belgian black marble. With its luxurious appearance, the room was often used for ceremonial events, but on this day, it would be the site of a brewing battle among members of the administration.
Hundreds of al-Qaeda and Taliban fighters were being captured in Afghanistan. The president had already decided how they would be tried; top advisors were debating where they should be held. The open question remaining: How should they be treated?
At the center of the debate were the Geneva Conventions, a group of four treaties that set international standards for the humanitarian treatment of enemy soldiers and civilians during wartime. The treaties were adopted over many decades, the natural outcome of the horrors of war. At one time, abuse of enemy soldiers and civilians was something that took place in secret—rumored, but unseen and often unreported. With the growth of international communications and the evolution of increasingly brutal weaponry, images and tales of ever more gruesome abuse came out of the shadows, shocking the public consciousness. Nations decided that all was not fair in war, that rules had to be established to ensure that anyone captured by the enemy was treated humanely.
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