500 Days (16 page)

Absurd or not, though, the legal review had been required by his boss’s orders. So lawyers lumbered along on the bombing plans, day after day after day, one target at a time.

•  •  •  

What if the United States captured bin Laden?

The problem dawned almost simultaneously on administration officials across Washington—from the White House to the Pentagon to the Justice Department. The United States was preparing to launch a war in Afghanistan. The military was going to hunt for bin Laden and, in the process, was sure to turn up a number of other top al-Qaeda leaders. Then what?

This would not be some criminal case—it was war. Bin Laden and his ilk couldn’t simply be snapped up in Kabul and hustled off to Manhattan for trial.
The questions would surface immediately: Could war crimes be charged as civilian offenses? What would the procedures be? What would be the standards of evidence? How could intelligence about al-Qaeda and bin Laden be used without public disclosure? Then there was the danger—the threat of terrorist attacks on judges, jurors, even people living near the courthouse, would be tremendous.

In America’s past wars, enemy troops were captured and held until hostilities ended, then returned to their home countries. But terrorists were not soldiers. They didn’t fight under the authority of any nation. Hostilities might never end. And if they did, there was no place to seal the terrorists off from the civilized world.

There had to be some form of justice system, outside of the criminal courts, for determining whether terrorists could be lawfully held forever, or even executed. Someone just had to figure out what it was.

This was a matter, Gonzales decided, that should involve the best minds from across the administration. He approached Pierre-Richard Prosper, a former war crimes prosecutor with the United Nations who now served as ambassador-at-large with the State Department’s Office of War Crimes Issues. Gonzales had respect for Prosper and considered him a diplomat who would carefully weigh the options in a calm and broad manner. He would be a counterbalance, Gonzales thought, to Addington’s hard-charging approach.

At a meeting with Prosper and Addington, Gonzales laid out the issues. “What we need,” he said, “is to understand our alternatives here.” Would Prosper be willing, he asked, to study the issues and make a recommendation for the president?

Absolutely, Prosper replied.

•  •  •  

Cheney and Addington weren’t about to just wait around for Pierre Prosper. This, they agreed, was not a time for the chin-stroking contemplations of a study group.

The CIA was already heading into Afghanistan; the military would be joining it quickly. Scores, if not hundreds, of terrorists would soon be in American custody. If Washington dawdled, relying on bureaucracies or interagency committees to devise plans for bringing the enemy to justice, the decision might be determined by circumstance. The Justice Department could well start demanding that the Pentagon turn over its captives for criminal prosecution—a disastrous outcome, both men thought.

Addington came up with what he considered the ideal solution. The next
morning, he attended a staff meeting with Gonzales, then afterward wandered into Flanigan’s office.

“We ought to take a look at the military commission set up by Roosevelt,” he said.

Addington launched into a history lesson. Franklin Roosevelt convened a commission in 1942. It was charged with trying eight German saboteurs who had sneaked into the United States as part of a Nazi plan to stage attacks on economic targets. The infiltrators were not soldiers, so could not be held as prisoners of war. But criminal courts would be slow and couldn’t guarantee the sentences that Roosevelt and his attorney general wanted—death, or at least life in prison. Plus, since the saboteurs had plotted to attack civilian locations on behalf of the Nazis, they were not criminals. They were, Roosevelt declared, unlawful combatants.

After the military tribunal began its work, the German prisoners filed a brief arguing that their prosecution should be held in civilian court, where they would enjoy constitutional rights. Their case, called
Ex Parte Quirin,
went to the Supreme Court, which upheld Roosevelt’s order as constitutional. After the ruling, commission hearings were held, convictions handed down, and sentences imposed. Six of the Germans were executed; two were jailed. The whole procedure—including the trip to the Supreme Court—lasted four weeks.

“This may be the perfect solution,” Addington said.

•  •  •  

The terrifying classified information was passed from American intelligence officials to their counterparts in Canada. To avoid a panic, the details could not be publicly released—indeed, they would still be secret more than a decade after 9/11.

Additional weapons had been discovered on commercial airliners—box cutters, knives, and the like. The planes where they had been stashed had been grounded after the attacks began. And blades weren’t just hidden on aircraft in the United States—some had also been found on commercial jets at Canadian airports. But by the time the weaponry had been located, the passengers on each flight were long gone.

On September 18, a Canadian intelligence unit issued a classified report to government officials, warning of the danger.

“Weapons, similar to those identified on the hijacked planes have been found aboard other aircraft in Canada and the United States in the last few days,” the
report read. “These weapons may have been intended for additional attacks or were backups in case the other attacks failed.”

Controls on the border between the United States and Canada had been beefed up after the attacks. But, with the knowledge that more hijackers might be lying in wait, both governments tightened the restrictions even more. Then, the desperate search began. Intelligence operatives dug through their files looking for the names of jihadists residing in either country who might be part of the next wave of attacks.

•  •  •  

Just past 8:30 that same night, Abdullah Almalki was in his Ottawa apartment watching television with his family when the doorbell rang. Almalki couldn’t quite decide if he should be annoyed or just surprised—with small children at home, this was awfully late for an unannounced visit.

He opened the door. In the hallway was a man in a suit.

“Mr. Almalki, my name is Alexander Gelvan. I’m with CSIS.”

Gelvan handed over an identity card. Almalki studied it—
Canadian Security Intelligence Service.
Canada’s CIA.

This wasn’t the first time that CSIS had dropped by. Three years earlier, another agent, Theresa Sullivan, had asked to speak with him. Back then, Almalki saw no reason to refuse. Instead, he gave her his life story. He had moved to Canada from Syria in 1987, when he was sixteen. He had attended Canadian schools and became an electrical engineer. In the summer of 1993, he had traveled to Afghanistan for two months to help on a reconstruction project that had been awarded to a Canadian agency, Human Concern International. Ahmed Said Khadr operated that group, but Almalki hadn’t liked the man’s management style, he had told Sullivan.

Sullivan’s ears had pricked up. Khadr was a name she knew—he was suspected of having close ties to militant mujahideen, as well as to bin Laden himself. She had pressed Almalki for more information. Had he received military training in Afghanistan? Did he know any mujahideen?

Absolutely not, he had responded. He was a businessman, an engineer who had started his own electronics export business, Dawn Services. His company served as a middleman in acquiring, repacking, and selling equipment like handheld radios to Microelectronics International, a Pakistani behemoth that supplied technology to that country’s military. Had he ever sold equipment to the Taliban? Sullivan had asked. Again, no.

In the intervening years, Almalki had heard from Sullivan one more time. Then he noticed some oddities. All of his company’s shipments were being searched by customs. He was stopped at an airport and intensively interrogated about his business dealings. He was asked to meet with other CSIS agents, who questioned him about a trip he had taken to Hong Kong.

Almalki felt harassed and eventually hired a lawyer to keep the intelligence operatives off his back. So on this night, just a week after the 9/11 attacks, he was hardly in the mood to speak with Gelvan, the CSIS agent who had just popped up on his doorstep.

“I want to ask you some questions,” Gelvan said.

“No,” Almalki replied. “If you want to talk to me, I have to have my lawyer present.”

That wasn’t necessary, Gelvan replied. He just wanted to get some information. Almalki had a Muslim friend in Montreal, Ibrahym Adam, who possessed both a pilot’s license and his own single-engine Cessna airplane. No one had seen Adam for a week, Gelvan said, and CSIS wanted to locate him. Almalki thought he understood what Gelvan was implying—Adam was one of the 9/11 hijackers.

“Ibrahym would never do anything like that,” Almalki said. “If you look at Islamic law, you cannot do such things. Those attacks totally go against the teachings of Islam.”

Gelvan persisted, but Almalki repeated that he did not know where his friend was and had nothing else to say. When the CSIS agent left, Almalki went straight for the telephone and called Adam. His friend was not there, and Almalki left a message.

The next day, Adam called back. Almalki told him about the strange visit from Gelvan, and the CSIS agent’s statement that Adam was missing.

“No, I’m not missing,” Adam responded, sounding perplexed. “And CSIS knows that. They’ve been questioning me, too.”

Almalki put down the phone, his mind racing. He was—scared? Angry? Confused? Whatever his emotions, he knew that he would have to be careful. Somehow, CSIS agents must believe they had suspicious information about him. And he had no idea what it might be.

•  •  •  

It was a morning of threes in the basement of the CIA on September 19. There were three unmarked cardboard boxes, sealed up with tape, looking like
something a homeowner might toss into an attic. Inside them, there were three hundred bundles of cash. The money totaled $3 million.

The currency was one of the first, and most important, weapons for seven intelligence agents about to be secretly inserted into Afghanistan, something that would allow them to grease some palms to earn the cooperation of indigenous fighters. Code-named “Jawbreaker,” the group was responsible for laying the groundwork in the war on al-Qaeda and the Taliban.

Gary Schroen, a thirty-five-year CIA veteran tapped to lead Jawbreaker, arrived about 10:30 at the Counterterrorist Center to take charge of the cash. Cofer Black had asked him just two days after the terrorist attacks to accept the assignment, and Schroen had moved into place quickly—after a matter of days, his team was ready to be deployed. Moving the boxes was not easy; he found that so much cash, in hundred-dollar bills, is awfully heavy. He needed a cart to get the money where it needed to be.

About fifteen minutes later, he caught up with the other team members in a parking area who were standing beside piles of luggage. A Chevy Suburban arrived, and the men loaded it up.

Schroen headed back inside and walked to Black’s office for one last briefing.

Black looked up when Schroen arrived. “Hey!”

The men sat at a table, discussing the travel plans.

“Gary,” he said, “I want to give you your marching orders.”

He had discussed everything he was about to say with Bush, who was in full agreement. Jawbreaker was to project into Afghanistan and meet with the Northern Alliance. Then, the agents would have to determine what the needs of the alliance were in order to facilitate the arrival of the American military, allowing the troops to use the Panjshir Valley as a staging area so that they could engage and destroy al-Qaeda.

“On the battlefield, if you see bin Laden killed, we need DNA evidence of his death, which would require bringing back part of his body,” Cofer said. “We cannot just accept that the target has been taken out.”

And if there was a choice of body parts to bring, Black said, the head would be better than hands. He paused.

“Have I made myself clear?”

•  •  •  

At Rockefeller Center, the New York offices for NBC News were in near chaos, with an army of reporters and producers chasing leads about the 9/11 attacks.

In an outer portion of the newsroom, Casey Chamberlain was sorting through the mail for Tom Brokaw, the anchor of the
NBC Nightly News
. She came across a hand-printed envelope with no return address—probably another ranting letter of the sort Brokaw received every day.

She opened the envelope, and a brown, granular substance spilled out. She brushed it into the wastebasket, then opened the letter. The paper was cut on some of its sides, as if the author was trying to shape it. Chamberlain read the message. No surprise—typical crackpot fare.

9-11-01

T
HIS IS NEX
T

T
AKE PEN
A
CILIN NOW

DE
A
TH
T
O AMERICA

DEATH
T
O ISRAEL

A
LLAH IS GREA
T

The misspelling of
penicillin
and the darkening of some of the
A
s and
T
s struck her as odd. That, plus the threatening tone, made her think that someone else needed to see the letter. She sent it on to Erin O’Connor, Brokaw’s assistant.

O’Connor read it but decided not to bother her boss, who had been working almost nonstop since the attacks. This new letter wasn’t much different from other off-the-wall missives that had been arriving since 9/11; it wasn’t even the first one with some sort of substance inside. Weeks before, O’Connor had opened a letter for Brokaw and a white powder had spilled out. Just to be cautious, she had sent that material to NBC security so it could be examined.

This time, O’Connor decided not to alert anyone; Chamberlain had already tossed out most of the material. But she was still a bit suspicious. Rather than just throwing the letter away, O’Connor set it on the side of her desk.