500 Days

by Kurt Eichenwald

  Stafford Smith was spitting mad and took the paper to his wife. “I cannot believe what these people are doing!”

  “You need to calm down,” Bolton replied.

  The next morning, Stafford Smith was still seething. He put a leash on their golden retriever, Melpomene—the muse of tragedy—and started on his mile walk to the Reprieve offices in the central business district. Inside, he saw an Australian colleague, Richard Bourke. Stafford Smith removed the dog’s leash and caught up with his coworker in the kitchen, where he was making some coffee. Bourke already knew about the situation at Guantanamo.

  “Can you believe it?” Stafford Smith asked.

  “That fucking cunt is outrageous!” Bourke replied, referring to President Bush.

  Both men continued raging in anger for a few minutes.

  “All right,” Stafford Smith said finally. “So what are we going to do about it? And how?”

  • • •

  Later that same week, the lawyers from Reprieve US went for drinks at Circle Bar, a nightclub constructed inside a New Orleans mansion near the Interstate 10 overpass. The place is funky, in an Addams Family sort of way—furtive and conspiratorial, with chipped plaster and red-glowing candles battling feebly against the Gothic darkness. When there was serious business to discuss at Reprieve, this avant-garde hangout was the off-site conference room.

  That evening, the topic was Guantanamo.

  “This is the injustice of our age,” Stafford Smith said. “It’s that simple. We can’t just turn away.”

  But there were practical considerations that they needed to consider before taking on the Bush administration’s latest outrage, one of the lawyers replied. Reprieve was already being assailed for its work on behalf of prisoners facing execution—what would happen if they started representing Osama bin Laden’s buddies? The 9/11 attacks were still tearing at the American psyche, and now Stafford Smith wanted to jump into the fray on behalf of these terrorists? It would undermine their work for death row inmates. It could well lead to the end of Reprieve.

  There was another problem. Bourke’s immigration status was more provisional than Stafford Smith’s; an Australian who could be sent back home by the government shouldn’t be going after the administration in court. Stafford Smith accepted all of the arguments; there were many good reasons for his group to stay out of it.

  “All right, here’s what we’re going to do,” he said. “I’m going to get involved, but the office isn’t going to get directly involved.”

  There would be no office funds used, the Reprieve name would not be mentioned and would not appear on any court filings. It would just be Stafford Smith.

  • • •

  Copies of a draft legal opinion were laid out on the conference table in the Situation Room. John Yoo sat near the center, looking satisfied as lawyers from other government departments and agencies studied the document. It had taken several weeks, but he and his colleague Robert Delahunty had finally produced this preliminary version of the memo about the application of the Geneva Conventions to the Afghan War.

  The passionate debate hadn’t diminished, so Gonzales had once again called a meeting trying to reconcile the conflicting opinions. If nothing else, Yoo could incorporate elements of the different outlooks into the next draft.

  Will Taft, the State Department legal advisor who had emerged as Yoo’s primary opponent on the topic, was the first to speak.

  “Geneva has defined our wars,” he said. “It is not possible to have a war unless Geneva applies. We—”

  “Well,” Yoo interrupted, “does that mean we can’t have a war with a country that never signed the Geneva Conventions?”

  Taft gave Yoo a quizzical look. “What do you mean?”

  “We had the Korean War. North Korea hadn’t signed the Geneva Convention, but we had the war. So how could you be right?”

  Taft listened, lost in thought. The argument seemed so misplaced—this wasn’t some technical question about who put what ink on what document. This was about the policies of the United States, about its unwavering application of the conventions to all hostilities involving its troops.

  Everyone began speaking at once. What, someone asked, was the Pentagon’s position? Douglas Feith, the undersecretary of defense for policy, took that.

  “It’s a matter of policy that we want our troops to have the protection of the Geneva Conventions, but we don’t want to give these terrorists Geneva protections,” he said.

  Eyes turned to General Peter Pace, the vice chairman of the Joint Chiefs and the only member of the military at the meeting. He laced his fingers together as he set his hands on the conference table.

  “Look, you’re the law side,” Pace said in a rich baritone voice. “What’s important for us is that we train our troops to obey Geneva.”

  The commitment of America’s troops to the conventions did not come with an off switch. The terms and meaning of the treaties were beaten into the heads of new soldiers; it was a foundational part of military training.

  “We tell them that if they follow Geneva, then they will be honorably treated when they’re captured. That’s—”

  “General,” Yoo said, interrupting, “I just read this report that says that any American soldier who falls into al-Qaeda’s hands will get killed right away. They’re not interested in taking prisoners. That’s one of the reasons they’re terrorists. No matter what position you take, they’re not going to follow any rules.”

  Pace didn’t back down. “It’s important for the United States to be seen as standing for the Geneva Conventions and complying with them in our situation,” he said.

  Taft and Yoo fell into a discussion about Common Article Three, part of all four of the Geneva Conventions, which dictated that detainees in military hostilities had to be treated humanely, meaning that they couldn’t be subjected to pain, humiliation, or degradation. Others listened as the two lawyers dissected individual words, trying to classify the current war. But no matter how many times they examined the text, Yoo said, the law was clear; Geneva didn’t apply. Still, he was not there to dictate policy; his job, Yoo said, was to let the decision makers know their legal options.

  “You could certainly make the argument that we’re not legally bound by Common Article Three but just say that we’re going to follow it on our own decision, for foreign policy purposes,” Yoo said.

  Taft nodded. “I like that idea,” he said.

  “Wait,” Feith said. “Why don’t we just publicly say we’re going to follow Common Article Three, but then not do it?”

  There was an awkward silence.

  • • •

  Hundreds of people, many carrying long-barreled weapons, surrounded the compact five-story building that housed the central prison for Sarajevo. It was January 17. Word had spread among the city’s Muslim community that the six Algerians being held in the jail on suspicion of terrorism were about to be released, then handed over to the Americans. A reporter from a local radio station was broadcasting live coverage of the protest and encouraging locals to come protect the men. More people arrived each minute, many of them armed.

  The civilians were not alone. SFOR troops were stationed around the prison, encircling the Sarajevo residents. Officials with the Coordinating Team—the Federation’s antiterrorism unit—watched the scene with foreboding. The military troops would undoubtedly comply with Bush’s order. This could quickly escalate into a bloodbath.

  Not far away, Federation ministers gathered for a tense meeting. As the officials considered what to do, they received regular, disturbing updates about the situation from the Coordinating Team.

  Every choice was fraught with peril. Memories of the lawlessness and violence from the Kosovo War were still fresh in the minds of the people. If the ministers elected to surrender the Algerians, they would be acting contrary to the orders of the court, ignoring laws that were holding the fragile country together. But if they refused the American demands and the troops moved in, t
he ensuing violence could race out of control. The Americans might even deem the Federation a country protecting terrorists. Under Bush’s “with us or against us” formula, Bosnia-Herzegovina, a nation dependent on the Americans for its existence, could fall into the “against us” category.

  The ministers had to choose. There was no time left.

  A motion was offered to turn over the Algerians to SFOR, regardless of the court’s findings. All those in favor? Hands shot up.

  The vote was unanimous.

  • • •

  At about that same moment, a judge from the Federation Supreme Court handed down his decision in the case—there was no evidence that the six Algerians had engaged in or supported any terrorist activities. The charges were dismissed. They were free to go.

  The six men were readying themselves to walk out of the prison gate when, without warning, the Bosnian police pulled black hoods over their heads and shackled them. Outside, the SFOR troops took defensive positions. Before anyone in the crowd realized what was happening, the Algerians—their faces hidden—were handed over to the Americans. Rapidly, the soldiers whisked them into an awaiting truck, which immediately drove away.

  • • •

  The time that followed was a blur. Once firmly under the control of SFOR, the men were stripped naked, given medical exams at gunpoint, then hustled onto a military plane. They were chained down. Black goggles, earmuffs, and surgical masks replaced the hoods.

  Soon, the aircraft was flying over the Mediterranean Sea; no one had yet told the men why they had been taken or where they were going. After traveling one thousand miles, the plane landed at Incirlik Air Base in Turkey. The men were moved into a hangar and forcibly dressed in jumpsuits. Afterward they were loaded onto a C-141 cargo plane and chained again.

  The turboprop flew for thirty hours. The men could feel the plane bump as it touched the ground—but where?

  While they were still unable to see or hear, the chains were removed; the shackles remained. Two people lifted each man and took him toward the door of the plane. The first was carried off and hit by a sudden and unexpected blast of heat.

  He and his compatriots, soon to be known as the Algerian Six, had arrived at Guantanamo Bay.

  • • •

  The last of the men who would eventually take the Bush Administration to court over its detention policies were now in hands of the United States.

  Hamdi, the American citizen seized in Afghanistan. The Tipton Three. Salim Hamdan, Bin Laden’s driver. And the Algerian Six just handed over by Bosnia. They were nobodies, men who had lived anonymous lives, specks on the ever-lengthening scroll of suspects in custody.

  But before the decade was out, they would make history, as the centerpiece of Supreme Court decisions that would change the face of American law.

  • • •

  That same day, Gonzales was on the telephone with Bush. He called because Yoo and Delahunty had just issued their formal opinion on the applicability of the Geneva Conventions to the Afghan War. Gonzales was detailing the findings so that Bush could make the decision.

  None of the conclusions were a surprise. Yoo and Delahunty had already submitted their less comprehensive memo to the Pentagon nine days ago, but this was the first time Bush heard their judgment.

  Common Article Three—dealing with the treatment of prisoners of war—did not apply in the fight against al-Qaeda. There were also strong reasons, Gonzales explained, that the Taliban could not claim its protections. According to the legal analysis, the Taliban were not a constituted government and Afghanistan was not a sovereign country. It was, instead, a failed state with multiple tribal groups battling for control.

  The Taliban also did not meet three of the four requirements to be deemed POWs if captured—they did not wear uniforms, did not have a command structure where a military leader was responsible for the actions of subordinates, and did not obey the laws of war. For those reasons, the United States was not bound to grant either al-Qaeda or Taliban members the protections offered POWs.4

  The briefing persuaded Bush. That day, he decided that Common Article Three did not apply to the conflict with either the Taliban or al-Qaeda.

  • • •

  Rumsfeld got the word out to the military the next morning, a Saturday, in a memo to General Pace.

  “The United States has determined that al Qaeda and Taliban individuals under the control of the Defense Department are not entitled to prisoner of war status for purposes of the Geneva Conventions of 1949.”

  However, he wrote, commanders were to make sure that the detainees were treated humanely and “to the extent appropriate and consistent with military necessity” in a manner in line with the conventions.

  The directive, Rumsfeld wrote, was to be sent immediately to all combatant commanders, who in turn were ordered to provide it to their subordinate commanders, including the head of Task Force 160, the military unit responsible for the care of detainees at Guantanamo. The memo was transmitted that afternoon to officers in the field by secure telex. By morning, those officers began notifying the troops. The standards of the Geneva Conventions that soldiers had been taught almost from the first moment they joined the military were no longer fully in effect.

  • • •

  Within hours, it became clear that the debate about the Geneva Conventions hadn’t quite ended. When Powell heard Bush’s decision, he reached out to the president, urging him to reconsider. There were options that had not been presented to Bush, he said, and downsides of the decision that had gone unexplored.

  None of Bush’s close advisors could ever remember the president changing his mind once he made a decision. But given Powell’s impassioned plea, the president agreed to reopen the discussion.

  • • •

  “Where’s bin Laden?” the CIA officer barked.

  Al-Libi said he didn’t know, an answer he knew carried severe risks. From the moment when he had been snatched away from Bagram Air Base, his captors had threatened that they were going to take him to Cairo for questioning, a terrifying prospect. The Egyptians were widely known as brutal interrogators who resorted to horrific torture if they didn’t like a prisoner’s answers.

  Now he was being questioned by the Americans while on board the USS Bataan, and it was clear that they didn’t believe him. What chance would he have of persuading the Egyptians?

  The CIA officers told al-Libi to remove his socks and gloves, then put him onto the floor. The room was freezing, but that was nothing compared with what might happen to him in Egypt. After about fifteen minutes, the interrogators brought him back up and put him into a chair.

  By then, al-Libi had decided—he would tell the Americans what they wanted to hear. Maybe if he lied, they might change their minds about sending him to Cairo.

  Yes, he told them, he was a member of al-Qaeda, and proceeded to recite names he had already told the FBI. The American interrogators eventually came back to the issue of Iraq. What were the connections? How was al-Qaeda tied to Saddam Hussein?

  There might be training of al-Qaeda fighters in Iraq, al-Libi said. An extremist named Abu Abdullah had told him that a senior al-Qaeda leader had sent him to Iraq three times since 1997 so he could be trained in the use of poisons and mustard gas.

  As al-Libi fabricated his stories, the treatment from his interrogators improved. But it still wasn’t enough. He was flown to Egypt a few days later.

  • • •

  No one in the government could reasonably argue that he didn’t know what would happen to al-Libi in Cairo. CIA computers were bursting with voluminous files about the brutal techniques of torture employed by the Egyptians.

  The agency knew from a source in the country’s security service that twelve suspects had been tortured to death by authorities since 2000. The CIA files revealed that subjects of interrogation were taken to the offices of the State Security Investigations Services, where they were handcuffed, blindfolded, and abused to extract information and confes
sions. Suspects were electrocuted, doused in cold water, beaten with metal rods, raped, suspended in the air for hours by ropes that pulled their tied hands behind their backs—the list of inventive cruelty was endless.

  Now the Egyptians would be employing their brutal skills on al-Libi, searching for more secrets about al-Qaeda, including its connections to Iraq that the Americans considered undeniable.

  • • •

  A team of administration lawyers boarded a Gulfstream jet at Andrews Air Force Base two days later for their first trip to the Guantanamo Bay detention camp.

  On the way down, Gonzales approached John Yoo and Will Taft, legal advisor to the State Department. The stalemate about the Geneva Conventions decision had to be resolved. Given that they had some time on their hands, he wanted them to hammer out their differences.

  “Figure out a compromise,” Gonzales said.

  The two lawyers sat beside each other, with Taft on the aisle and Yoo at the window. One of them brought out a pen and paper and started taking notes as they spoke.

  Yoo restated his argument, with Taft at first only asking questions. When Yoo finished, Taft shook his head.

  “I don’t agree with your ‘failed state’ analysis,” he said. “And you’re hanging a lot on that one definition.”

  Maybe, Yoo said, they were handling this wrong. Even if Afghanistan was not a failed state, there were other reasons to deny the Taliban POW status—they didn’t follow the laws of war, for example. There was evidence that they had become so thoroughly intertwined with al-Qaeda that they were not so much a government as an extension of the terrorist organization. That alone was reason to justify treating them as unlawful combatants.

  “The president can go two possible routes,” Yoo said. “We could include both options.”