500 Days (52 page)

Addington was waiting. Gonzales greeted him, picked up the paperwork, and sat down on a couch to review it. He recommended a few changes and the two men tinkered with the wording. It was ready for the president.

Gonzales made a call and was connected to Bush. “Mr. President, I’ve got the paperwork on Padilla.”

Fine, Bush replied. He told Gonzales to bring it by that evening.

•  •  •  

Bush was sitting at his desk in the White House residence, reading through a single-page declaration. It said Padilla was an enemy combatant, was closely associated with al-Qaeda, and posed a continuing threat to the United States. Everything seemed in order.

Bush dated the document and signed it.

•  •  •  

At about the same time, federal prosecutors in New York visited Judge Mukasey at his home with a motion to toss out the material witness order. If it remained in effect, the transfer of Padilla from the custody of the Justice Department to the Pentagon would be impeded. Mukasey approved the request.

That night, military officials arrived at the Metropolitan Correctional Center
and took custody of Padilla. He was shackled, blindfolded, then flown to the Naval Weapons Station Charleston in South Carolina. Members of the navy’s masters-at-arms branch brought Padilla off the plane, taking him to Building 3107, the Consolidated Naval Brig. He was locked in a cell away from the rest of the population.

•  •  •  

The next day, Padilla’s lawyer, Donna Newman, was preparing for a hearing before Mukasey that was scheduled to be held in twenty-four hours. No one had told her that the warrant against her client had been vacated, or that he had been turned over to the military. She was notified of his fate just before the rest of the world learned about it.

•  •  •  

A press release had been written about Padilla and an information packet prepared. White House officials prided themselves on their skill at controlling “the message” of any event, making sure an announcement was carefully readied. This one was going to take particular skill. A United States citizen arrested on American soil, dirty bombs, enemy combatants—these were complex issues that had to be framed well. They couldn’t overstate the threat, yet at the same time they had to justify the military’s custody of Padilla as necessary for national security.

Both Rumsfeld and Ashcroft were overseas, so the responsibility for handling the press conference had been turned over to their deputies—Wolfowitz and Larry Thompson—as well as Mueller from the FBI. There had been some debate about where to conduct the briefing, but the White House wanted it held at the Justice Department pressroom.

The planning was still under way when a document arrived at the White House from Moscow. It was a statement about Padilla that had been composed by aides to Ashcroft, who was traveling in Russia. Until that moment, no one at the White House even suspected that the attorney general was preparing to hold his own—unvetted and unapproved—press conference in Russia.

•  •  •  

Ashcroft was rehearsing his statement while one aide applied hair spray and another brushed off his shoulders.

“We have captured a known terrorist,” Ashcroft said.

He stopped and loudly cleared his throat. “Let’s try that again,” he said. “We have captured . . .”

•  •  •  

About fifteen minutes later, Ashcroft peered grimly into a Russian camera, his face bathed in an eerie red glow. The image was spooky, something like the opening scene of a horror-movie marathon.

“I am pleased to announce today a significant step forward in the war on terrorism,” Ashcroft began. “We have captured a known terrorist who was exploring a plan to build and explode a radiological dispersion device, or dirty bomb, in the United States.”

So far, so good. Despite Ashcroft’s appearance—and the apparent urgency conveyed by his delivering his statement from Moscow—the words he had spoken so far were finely tuned, the essence of diplomatic understatement. Padilla was “exploring a plan”—just the right way to phrase it. There was no talk of an imminent threat.

The attorney general described Padilla’s background, explaining that he had also gone by the name Abdullah al-Mujahir, and gave details about his arrest in Chicago. Then Ashcroft fouled it up.

“We have disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive dirty bomb,” he said. “Now, a radioactive dirty bomb involves exploding a conventional bomb that not only kills victims in the immediate vicinity, but also spreads radioactive material that is highly toxic to humans and can cause mass death and injury.”

•  •  •  

In the White House, Addington watched Ashcroft’s performance in utter astonishment.
Disrupted an unfolding terrorist plot?
Padilla had barely entered the planning stages.
Mass death?
Mass overstatement! People were going to think that the country just dodged a nuclear attack or something.

Not good.

•  •  •  

Ashcroft’s face filled the television screens on the floor of the New York Stock Exchange and in trading rooms across Wall Street. His words flashed across Bloomberg and Reuters news terminals.

The stock market had been having a good day, a rarity since the collapse months before of Enron, the energy conglomerate. In fact, the Dow had gained just over one hundred points.

But, as Ashcroft spoke, the market swooned. The advances for the day were all but wiped out in minutes.

•  •  •  

It’s never easy to walk a cat backward. But somehow, the White House had to undo Ashcroft’s alarmist talk without suggesting that the administration didn’t know what it was doing.

The duty fell to Wolfowitz, Thompson, and Mueller. The original press conference went forward; reporters were notified that there would be a briefing at 11:15 that morning. After a twenty-minute delay, the three men appeared. Thompson spoke first.

“By now, all of you have heard the attorney general’s statement regarding the arrest of Abdullah al-Mujahir and his transfer to military control,” he said. “Secretary Wolfowitz has a few brief remarks.”

Wolfowitz took over, choosing his words carefully in an effort to project a sense of calm. Padilla had been
discussing
plans; he had only been conducting reconnaissance. His soothing tone didn’t satisfy the crowd of journalists; they wanted facts.

“How far did they get?” one reporter asked. “Have they assembled any part of the weapon?”

Thompson glanced at Mueller. “I’ll defer to the director on that question.”

Mueller said a few words thanking the CIA for their work. “Now, with regard to the specific question, as it states, I think, in the attorney general’s statement, there were discussions about this possible plan, and it was in the discussion phase,” he said. “It had not gone, as far as we know, much past the discussion phase.”

Another reporter asked whether the attack was planned to take place in Washington. Mueller turned that question over to Wolfowitz.

“As Director Mueller said, this was still in the initial planning stages,” Wolfowitz said. “It certainly wasn’t at the point of having a specific target.”

While Padilla seemed to have some knowledge of the Washington area, that wasn’t particularly important. “I want to emphasize again, there was not an actual plan,” Wolfowitz said. “We stopped this man in the initial planning stages.”

The press conference lasted just over six minutes. The stock market edged higher.

•  •  •  

Yosri Fouda had kept his secret for months. The Al Jazeera reporter who had interviewed Khalid Sheikh Mohammed and Ramzi bin al-Shibh in Pakistan had been waiting to tell his bosses about the coup until the al-Qaeda terrorists sent him the tapes from the meeting. But now he was ready to let them in on the news about the remarkable interviews.

Among those Fouda informed was Sheikh Hamad bin Thamer al-Thani, the chairman of Al Jazeera. Soon, al-Thani notified his cousin the emir of Qatar, Sheikh Hamad bin Khalifa al-Thani. The emir, in turn, shared the information with George Tenet. The CIA obtained copies of the Al Jazeera interview. Now CIA agents had recordings that could be used to match the two terrorists’ voices to those from calls intercepted by the NSA.

•  •  •  

Ted Olson wasn’t on time for the latest meeting about the appeal in the Hamdi case, so his deputy, Paul Clement, sat at the head of the table. “Let’s get started,” he said. “I hope everybody has had a chance to review the filing.”

A hearing before the Fourth Circuit Court of Appeals was scheduled to be held in a matter of days; Olson had come down in favor of Yoo’s argument for putting Judge Doumar in his place.

The number of lawyers in this meeting was much smaller than in the early strategy session. This time, the goal was to make sure that the Justice Department, the Pentagon, and the counsels for Bush and Cheney were all agreed on the arguments that Clement should make.

The centerpiece of the case would rest on the authority of the president and the military in a time of war. The habeas petition was a challenge to the president’s powers under the Constitution. Courts could not intervene with a military or presidential decision that declared an individual to be an unlawful enemy combatant; the judiciary was not qualified to make that kind of judgment and had no authority to question such a determination. Should the courts want to review the rights of an unlawful enemy combatant, they could. But that was different from challenging the designation.

On the specific issue of a habeas petition, there was strong precedent to argue that such filings from military captives should not be considered. There was
Ex Parte Quirin,
the German saboteurs case that the administration had used as the basis for establishing military commissions—one of the defendants was an American citizen, and his habeas petition had been tossed out. In 1950, in a case called
Johnson v. Eisentrager,
the Supreme Court ruled specifically that the judiciary should not consider a habeas petition filed by a foreign enemy. Another case,
In re Territo,
was directly on point—an Italian soldier who was born in the United States had been captured on the field of battle. The Ninth Circuit Court of Appeals ruled that Territo’s citizenship was irrelevant and that he had no right to file a habeas petition. The only weakness in that case was that, while it was the only precedent that dealt specifically with the issues raised
in the Hamdi case, it was a circuit opinion. The Supreme Court did not hear an appeal.

There was something missing, Addington thought. “We should also mention that, even under the Third Geneva Convention, POWs don’t have a right to a lawyer and can’t challenge their detention,” he said. “Certainly, unlawful enemy combatants don’t get more rights than POWs.”

Good point. Clement wrote it down.

Olson arrived and listened to the discussion in silence. He sat back in his chair.

“I’m pretty pessimistic about the Supreme Court on the access-to-a-lawyer issue,” he said. “We may not get four votes for that, let alone five.”

Addington looked at Olson with an expression of disbelief. He had enormous respect for the solicitor general—so did Cheney—but he couldn’t imagine Olson was right. The precedents were all on the administration’s side! The court would have to reverse standing law stretching back decades!

“I’m surprised,” Addington said. “Do you really think so?”

Absolutely, Olson said. Four of the justices—John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer—were probably lost causes. Anthony Kennedy was a strong believer in the right to counsel, so he was going to be a problem. Even Sandra Day O’Connor was a question mark; she might have issues with the procedure that went into designating someone as an enemy combatant.

“They would have to reverse the precedents,” Addington said.

Olson nodded. That very well might happen. It was the same argument that Yoo had made months before—the Supreme Court was as much a political body as a judicial one. The mind-set of each justice had to be considered in predicting outcomes. And, under that analysis, the administration’s chances didn’t look good.

The argument before the Fourth Circuit Court of Appeals, Olson said, would be handled by Clement. An appearance by the deputy solicitor general would underscore how important the administration considered these issues. Some of the other lawyers were surprised, since they had expected Olson himself to appear in court.

As the meeting broke up, Olson approached Flanigan, drew him aside, and handed him a DVD.

“This is something I’m giving to friends,” he said. “It’s a tribute that Larry King has done for Barbara.”

Flanigan was touched. Olson’s wife, Barbara, had been killed on 9/11, when her plane crashed into the Pentagon.

King, the television personality, had assembled the video to honor his murdered friend. Perhaps, Flanigan thought, Olson’s grief might have something to do with his decision not to argue before the court on behalf of the administration. A lawyer was supposed to approach a case without emotion, and in this instance, no one could expect Olson to suspend his personal feelings.

•  •  •  

Just a mile down Pennsylvania Avenue, in the offices of the law firm Shearman & Sterling, Tom Wilner was preparing for a different legal assault on the administration’s detainee policy.

Months before, Wilner had filed a suit on behalf of twelve Kuwaiti men held at Guantanamo, captioned
al-Odah et al. v. United States.
The case was joined with
Rasul v. Bush
, the habeas petition brought by Clive Stafford Smith, Joseph Margulies, and the Center for Constitutional Rights.
Rasul
had been going nowhere for months, but now the combined petitions were about to be heard in Federal District Court for the District of Columbia.

The bar that the lawyers faced was high. Unlike Hamdi, none of the plaintiffs were American citizens or were even detained in the United States. Instead, they were alien nationals seized overseas and held at Guantanamo. A court was far less likely to grant constitutional rights to foreign enemy combatants than to a citizen, and less likely still if they were being held at Guantanamo naval base in Cuba. Unlike in Norfolk, where Hamdi was imprisoned, the United States had no sovereign control over Guantanamo, the administration argued. That meant American courts had no jurisdiction over activities there.