500 Days (40 page)

“We need a letter to the president laying out our position,” he said. This was a legal question, and the Justice Department had provided its legal advice. Ashcroft wasn’t going to allow Powell to make an end run and take control of the issue.

The lawyers broke out legal pads and took turns crafting paragraphs for the letter. They finished in about twenty minutes, and the material was sent to a secretary to be typed up. The draft was presented to Ashcroft. He scowled as he read it.

“I don’t like this,” he said. “This isn’t how I want to say it.”

This wasn’t about foreign policy, Ashcroft said. That wasn’t his area of responsibility. But Powell wasn’t supposed to be delving into the law either.

The lawyers took another shot, but Ashcroft rejected it again. He took a deep breath in frustration. “Okay!” he said. “Everybody out! I’m going to write this myself.”

As his staff lawyers left the room, Ashcroft began composing the letter in longhand. He agreed with Powell that there were two basic theories establishing that neither al-Qaeda nor the Taliban was entitled to POW status.

But, it was risky to declare the conventions as relevant to this war. There was a higher chance of litigation against administration officials—or even criminal prosecution. Plus, there was no need to fear that some other country might someday declare that American forces didn’t qualify for Geneva protections. His department’s analysis was based on the concept that Afghanistan was a failed state; other countries would not be able to reasonably make that same argument about the United States. The legal opinion could never be turned back against the country that produced it.

•  •  •  

That same day at the University of Washington in Seattle, a microbiologist sat at her computer composing an e-mail to the FBI about the anthrax killer.

Shortly after the attacks, the American Society for Microbiology sent an e-mail to its forty thousand members, asking them to alert the authorities of any suspicions they might have. Only this one researcher replied. She had a queasy feeling about a scientist who had been obsessed with her years before after he learned that she was a member of the Kappa Kappa Gamma sorority. His name was Bruce Ivins.

All those years ago, he had stalked her, and she was sure he was also the person who had spray-painted the letters
KKG
on the sidewalk outside her house. She had not heard from him in eighteen years; then—just three days after the first anthrax letter was mailed—he had e-mailed her and followed up with a phone call. In their conversation, Ivins chatted about her children, revealing details of their lives that he should not have known. Then he discussed the important role he played in anthrax research, and how—given the 9/11 attacks—he was on edge, concerned that terrorists might use biological weapons against Americans. It was all too bizarre, and the more she thought about him, the more convinced she became that the FBI should question this strange man.

She began her e-mail by identifying herself and explaining that she was responding to the microbiology society’s request to help the authorities with the anthrax case.

“I would like to speak to someone about a former colleague who presently works with anthrax at Ft. Detrick,” she wrote. “I believe that this individual is somewhat mentally unstable and has the profile of someone who COULD be capable of such an act.”

She would not give her home phone number or address, she wrote, because Ivins scared her. He was adept at computer snooping, and she was afraid for the safety of her children and herself. He had e-mailed her recently to let her know he was working with anthrax, she wrote, a detail that seemed inconsequential at the time but that now struck her as ominous.

“Please,” she typed, “take this seriously.”

•  •  •  

FBI agents soon contacted the microbiologist and quizzed her about her concerns. She repeated everything she had written and again implored the Bureau to take a strong look at Ivins.

But the agents disregarded the tip. After all, Ivins had joined the federal
inquiry into the anthrax attacks. The FBI was relying on him for his expertise in the field. He was offering up the names of numerous suspects. His help was invaluable.

Why would they waste time investigating a man who was providing such crucial help in tracking down a murderer?

•  •  •  

Bush reached his final decision about the Geneva Conventions issue on February 7. Colin Powell won.

In a written order, Bush stated that he accepted the Justice Department’s legal opinion that the provisions of Geneva were irrelevant to the global conflict with al-Qaeda, meaning that none of its members qualified for prisoner-of-war status. He also maintained that, while he had the authority to suspend the conventions, he would not do so in the Afghan War.

“I determine that the provisions of Geneva apply to our present conflict with the Taliban,” the order said.

As a result, the status of the Taliban had to be examined under the terms of the accords. Based on that review, Bush declared that the Taliban were unlawful combatants, so they, too, did not qualify for POW status.

The analysis was incomplete. Bush made no finding as to whether the Taliban would be covered as civilians, given that a human rights tribunal had ruled that everyone fell under the terms of either Geneva Convention 3, which dealt with armed forces, or Geneva 4, which applied to civilians.

Still, Bush declared, the detainees would be treated humanely. “As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva,” the order said.

•  •  •  

The FBI issued subpoenas worldwide for more than one thousand specimens of anthrax. Perhaps, investigators hoped, a test that was in development would soon be available to detect a biological fingerprint in the bacteria, allowing them to compare the submissions with the microbes found in the letters. If they found a match, they might be able to trace the spores from the attack back to their source and snare the culprit who sent them.

One of the researchers who received a subpoena was Bruce Ivins. In February, he put together eight samples, including two from a batch he had developed called RMR-1029—the source of the anthrax used in the attacks. The FBI had included instructions to the researchers for preparing the anthrax, and Ivins
followed them precisely with six of the submissions. But he disregarded them for the two from RMR-1029, making them useless for any analysis.

If it was an attempt at a cover-up, it worked perfectly—at least for now.

•  •  •  

After the CIA flew al-Libi to Egypt, he was delivered to the Mukhabarat al-Aama, the country’s general intelligence and security service. The agents transported him to the Mukhabarat headquarters in the Abdeen district of Cairo and immediately took him to be interrogated.

Al-Libi was brought into a room and pushed into a chair. An Egyptian official stood over him and, as he had to so many other prisoners, made a promise.

“You are going to confess,” he said. “Thousands of people have been in that chair before you. All of them have confessed.”

There was no reason to hold back, the man said. Al-Libi could do this the hard way or the easy way. It was his choice.

So, Al-Libi talked. He made up stories about upcoming al-Qaeda attacks. He lied about where senior members of the organization were hiding—no one would have accepted that he didn’t know.

Eventually, the interrogators moved on.

The new topic: al-Qaeda’s connections to Iraq. They wanted details, and al-Libi tossed out some fictional information. They beat him—they knew he was lying, one interrogator said. Tell the truth!

He stumbled to reply, but the words didn’t come fast enough. An interrogator hit him several times. Then he was picked up and shoved into a box, so small that just a minute inside was agony. More than fifteen hours passed until they finally took him out. The interrogator again instructed him to tell the truth.

Al-Libi gave an answer. The interrogator struck him in the chest with his forearm, then pushed al-Libi to the floor. He was punched and kicked for a quarter of an hour. Beaten and bruised, al-Libi was allowed to sit down in the chair. An interrogator approached him, demanding again that he tell the truth.

Small lies hadn’t worked. A big one would.

Three al-Qaeda members had traveled to Iraq to be trained in the use of nuclear weapons, he said. He named real people, although the story was completely false. His interrogators were pleased and allowed him to eat.

Days later, the interrogators pressed again, this time for information about al-Qaeda’s work with Iraq in developing biological weapons. Al-Libi didn’t know how to lie—he wasn’t sure what
biological
meant. He struggled but failed to put together a story. The torture resumed.

•  •  •  

The information was relayed to Washington through the CIA within a matter of days.

It was shared among very few officials, but it engendered a great deal of relief. A senior al-Qaeda member not only had revealed the connections between the terrorist organization and Saddam, but in the process had confirmed that Iraq was continuing work on a nuclear program.

Now they had proof—Saddam presented a danger to America and the world. The United States would have to do whatever it could to stop him. The work on plans for a war in Iraq needed to be stepped up.

4
The analysis did not examine whether al-Qaeda or Taliban members qualified for Common Article Three protections under the Fourth Geneva Convention, which would have been the required alternative under the ruling of a U.N. tribunal. See Notes and Sources.

The court clerk studied the twenty-two-page legal document with a practiced eye, looking for imperfections. He flipped back to the first page and reread the caption. No doubt, this case would be unusual.

The plaintiffs included three Guantanamo detainees, each with a relative representing him in the case, and relatives of other captives held at Guantanamo. The defendants were four government officials, including the president. And the document, headed “Petition for Writ of Habeas Corpus,” demanded that administration officials prove they had the evidence and the legal authority to keep the men in custody.

The three lawyers who had just filed the document watched as the clerk picked up the date stamp and pounded the papers into the court docket.

They had to pay a filing fee, the clerk said flatly.

One of the attorneys—Stafford Smith, the lawyer with Reprieve in New Orleans—demurred.

“We’d like to file it in forma pauperis,” he said, a designation of their clients’ indigence. That might save them pocket change today but would spare them much larger future expenses, such as for deposition transcripts.

Did they have a sworn affidavit from the clients confirming that they couldn’t afford court costs? the clerk asked. No, and they couldn’t get one. Their Guantanamo clients didn’t even know they had lawyers. The administration, which had repeatedly refused the detainees contact with anybody, including their families, certainly wasn’t going to act as a courier of legal documents.

Without the affidavits, there was nothing the clerk could do. One of the lawyers paid the fee.

It was February 19, 2002.
Rasul et al. v. Bush,
the first major case challenging the administration’s detention policies, had been set in motion.

•  •  •  

In John Marshall Park, next to the courthouse, a small crowd of journalists gathered for a press conference. They watched as Stafford Smith and the two other lawyers—Bill Goodman from the Center for Constitutional Rights and Joseph Margulies, a civil rights lawyer who taught at Cornell University Law School—emerged from the courthouse and approached a cluster of microphones.

Goodman introduced himself, then got to the point. “We have, today, filed a lawsuit which tests the power of the federal government and the President of the United States to hold whomever he chooses simply because he does not like them,” he said, “Or simply because he wants to hold them indefinitely without having any legal authority to do so.”

Next was Margulies. “From one perspective, we believe this case is really very easy,” he said. “The President of the United States and the executive branch simply cannot hold a person for the rest of his life without legal process, without judicial review, without being charged, without counsel, particularly when one possible outcome is the death penalty.”

Was the United States, Margulies asked, really going to jettison the rule of law and scuttle the Constitution to appease the fury of a nation traumatized by the 9/11 attacks?

“And that’s what this case is about,” Stafford Smith added. “To ensure that hatred doesn’t overcome human rights.”

•  •  •  

Stafford Smith returned home that same night, shaken by the media’s reaction to his declaration of noble intent.

The reporters at the press conference had turned almost combative, hammering him and the other two lawyers with questions that suggested their initiative was a waste of time and, worse still, an offense to the American people. What merit did the habeas petition have, one journalist asked, given that Bush had already decided on the use of military commissions? What had their clients been doing in Afghanistan? Why did any of this matter, given that the men had been caught in the act of trying to kill American soldiers? But the low point came in a subsequent television interview, when a reporter asked Stafford Smith several times if he was a traitor.