500 Days (77 page)

•  •  •  

The slap from Europe infuriated Bush. So he slapped right back.

“Surely our friends have learned lessons from the past,” he told a group of
reporters gathered in the Roosevelt Room at the White House. “Surely we have learned how this man deceives and delays. He’s giving people the runaround.”

Regardless of whether the French and Germans blocked a second U.N. resolution, Bush suggested, America and its supporters would act. “Time is running out,” he said. “I believe in the name of peace, he must disarm. And we will lead a coalition of willing nations to disarm him. Make no mistake about that. He will be disarmed.”

•  •  •  

During an afternoon press briefing at the Pentagon, Rumsfeld decided to follow his boss’s lead in taking a poke at the French and Germans—but this time, with a much sharper stick.

It came in response to a query posed by Charles Groenhuijsen, a journalist with Dutch public television. “Sir, a question about the mood among European allies,” Groenhuijsen began. “It seems that a lot of Europeans rather give the benefit of the doubt to Saddam Hussein than President George Bush. These are U.S. allies. What do you make of that?”

Rumsfeld engaged in some lighthearted banter with Groenhuijsen before answering.

“What do I think about it?” he said. “Well, there isn’t anyone alive who wouldn’t prefer unanimity. I mean, you just always would like everyone to stand up and say, ‘Way to go! That’s the right thing to do, United States.’ ”

But rarely did all countries reach common accord on
anything,
he said. On the other hand, the transatlantic partnership had been different. Almost always, Europe joined hands with America if the facts justified taking action.

“Now, you’re thinking of Europe as Germany and France,” he continued. “I don’t. I think that’s old Europe. If you look at the entire NATO Europe today, the center of gravity is shifting to the east.”

There were plenty of new countries that had been invited to join NATO, he said. But still, he acknowledged, Groenhuijsen was right.

“Germany has been a problem, and France has been a problem,” he said. “But you look at vast numbers of other countries in Europe, they’re not with France and Germany on this, they’re with the United States.”

•  •  •  

Rumsfeld’s broadside was greeted in France and Germany with a mixture of bemusement and irritation. Inept diplomacy aside, Washington appeared to be signaling that any ally—no matter how strong its historical friendship with the United States—could be elbowed aside if it disagreed with the
administration’s policy. It was childish, as if the White House believed its “with us or against us” mind-set forbade any country from reaching an independent conclusion about Iraq.

Still, some politicians relished being cast as the elder statesmen lecturing their impetuous cousin in the New World. “When one is an old continent, a continent with an old historic, cultural, and economic tradition, one can sometimes inherit a certain wisdom, and wisdom can be a good advisor,” said Jean-François Copé, the French government’s official spokesman.

The German foreign minister, Joschka Fischer, was delicate in his response. “We should try to treat each other sensibly,” he said. “Our position is not a problem, it is a constructive contribution.”

Others showed less restraint. Asked by a reporter for her view, Roselyne Bachelot, the French environment minister, responded, “If you knew what I felt like telling Mr. Rumsfeld . . .”

She stopped herself, saying that the word she had in mind was too offensive.

•  •  •  

Yoo’s draft memo for the Pentagon on interrogations was delivered that same week to Mary Walker, the air-force general counsel. As head of the working group reviewing interrogation policy for Guantanamo, Walker declared that she alone would be allowed to keep a copy of the legal analysis. To ensure the highest level of security, she said, her counterparts at the other military branches would be allowed only to read the document in her office.

Her fellow lawyers grumbled among themselves about her pronouncement. They were supposed to be working together to form policy. The Yoo opinion—and who was this guy John Yoo, anyway?—was going to be the template for everything they did. Forcing them to rely on notes scribbled during a reading session in Walker’s office would crimp their ability to do their job. And the lawyers couldn’t help but wonder—since Jim Haynes had appointed Walker, did that mean he didn’t trust the rest of them either?

Still, Alberto Mora was looking forward to reviewing the memo. The Office of Legal Counsel, he knew, was the most respected group of lawyers in government, composed largely of academics renowned for the brilliance and subtlety of their reasoning. Years before, as general counsel of the United States Information Agency, he had read plenty of OLC memos and unfailingly found them to be models of legal draftsmanship. He was eager to see how attorneys with that level of expertise and knowledge would configure the legal limits for detainee interrogation.

Mora scheduled an appointment to study the Yoo memo in Walker’s office. When he arrived, Walker removed the document from a safe where she kept classified material. Mora sat at a table and started taking notes as he read.

He gave a start. Something was missing. He stopped writing and leafed through the memo, his consternation growing as he flipped each page.

He found references to torture—reference after reference after reference. A law said this about torture, a treaty said that. And that was it.

What’s the boundary where harsh treatment becomes degrading? When did degrading treatment become cruelty?
The answers weren’t there! The memo frequently mentioned “the Torture Convention” but even
that
nickname ignored the international agreement’s wider scope. Its actual name was “the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.” The terms
cruelty
and
degrading treatment
were right in the title, but didn’t make it into the analysis.

Mora turned back to the first page and read through the memo again, this time more closely. It wasn’t possible, he thought, that such a core element of the issue had simply been ignored. But it had been.

This memo doesn’t get it,
he thought.
It can’t reach the right conclusions if it’s not asking the right questions.

Then Mora reached the portion that dealt with the president’s authority in wartime, and what he read struck him as grotesque and dangerous. Yoo’s assertion that the executive’s power was virtually unbounded during war amounted to a declaration that the presidency was a supreme branch of government, beyond the law, beyond the authority of Congress, beyond the review of the courts.

My God. They’re arguing that the president can do whatever he wants.

Walker left her office before Mora finished. He planned to call her as soon as possible so he could let her know that this memo was garbage.

•  •  •  

A chief petty officer at the Pentagon took an elevator down to the main level and found John Yoo waiting. The first meeting of the Detainee Interrogation Working Group was being held on this day, January 23, and Yoo had been invited to give a presentation.

The working group was already reviewing thirty-six aggressive techniques, including sleep deprivation, stress positions, use of phobias, and waterboarding. Before anything was approved, though, the military lawyers wanted to get
a better understanding of Yoo’s reasoning and to challenge him on some of his conclusions.

Yoo arrived upstairs to find more than a dozen people waiting in a conference room. Walker introduced him.

“John’s here to discuss his draft memo and then answer whatever questions you have about it,” Walker said. “So, John, go ahead.”

Yoo explained each element of his analysis—the definition of torture, the requirement that an interrogator must intend to cause pain, and the sweeping powers a president was permitted to exercise during wartime.

“Under the conventional doctrine, the president can order that the U.S. violate international law,” he said. “That doesn’t mean it’s legal under international law. It still could be a violation if a country gets harmed or asks for a remedy or whatever compensation it’s seeking. But we do have the right to violate international law.”

Across the table, an army officer with the Judge Advocate General’s Corps shook his head. “No, that’s not true,” he said. “International law binds us.”

Yoo leaned forward.
This is going to be like being a law professor again.

“The Constitution creates certain powers and gives them to the president,” he said. “Where does it mention international law binding the constitutional powers of the executive branch?”

“That’s what we always teach to every soldier in basic training, that they are bound by international law.”

“But there’s a landmark case,
Paquete Habana v. U.S.,
that says a president can order actions inconsistent with international law.”

“Well, we have to be bound by international law,” the army officer responded.

“Why?” Yoo asked.

“If we violate international law, the other side is going to violate it, too, in treating our soldiers when they’re captured.”

“Look, if you think al-Qaeda is going to follow any rules of war, that’s nice, but we have no factual evidence that’s true.”

The other issue to consider, Yoo said, was that their objections were about policy, and that wasn’t relevant in a discussion about constitutionality.

Another JAG officer spoke. “This is going to be very bad for the image of the military in other countries.”

Yoo nodded. “That’s a very good point, and it could certainly be valid,” he said. “But again, that doesn’t tell us anything about how to interpret the law.”

The meeting lasted for an hour and a half. The military lawyers raised objection after objection, but Yoo remained unflappable, batting down their arguments as being in the realm of policy, not the law. Then, after Walker thanked Yoo for his input, he headed out.

The meeting was a disaster, Yoo thought.
I knew we shouldn’t be doing this with the Pentagon.
The use of harsh treatment by soldiers wasn’t going to work. The military was too big, and the resistance to adopting such a policy was going to be too strong.

But he fervently believed that it wasn’t his place to make such an argument to the Defense Department. He was just a lawyer, not a decision maker.

•  •  •  

The next day, Tony Blair sent a confidential note to Bush. The two men were set for another tête-à-tête on Iraq, and the prime minister wanted to do as much spadework as possible. He felt confident, he told his advisors, that he could persuade the president to postpone any invasion until after the Security Council approved a second resolution.

Blair opened his missive with flattery. Bush’s strength, the prime minister wrote, had forced Saddam to allow weapons inspectors into Iraq. But much more needed to take place before gearing up for war.

Public support for military action was essential, Blair wrote, and time was needed to build it. The British people opposed an aggressive Iraq policy; he couldn’t even say that a majority of his own cabinet was in support.

They needed to keep their effort on a multinational track, Blair wrote, but it wasn’t going to be easy.

•  •  •  

Haynes was doing his best to juggle the wildly divergent opinions coming in about interrogations. Yoo, and, in turn, Walker, were insistent that the military had the authority to conduct aggressive questioning. But Mora was banging the drum that the legal analysis leading to that conclusion was incompetent. Cruelty and degrading treatment had to be defined and contained, he insisted.

He telephoned Alberto Gonzales.

“Al,” Haynes said, “there’s a lot of friction over here about interrogation policy.”

“Well, you’ve got to work it out.”

Thanks so much for your help.

“A lot of the push-back on this is coming from Alberto Mora,” Haynes said. “He is strongly disagreeing with John Yoo on this.”

There are always going to be disagreements about legal interpretations, Gonzales replied, even when they come out of the Department of Justice.

“But at the end of the day, somebody’s got to make the final call on the legality,” he said. “And it’s not Alberto Mora. It’s the DOJ.”

•  •  •  

At a BBC television studio in London, the sounds of a brassy orchestral piece faded and a camera crane swung over David Frost. The British talk-show host was seated on an overstuffed armchair, with Tony Blair perched on a couch beside him. It was January 24, and Blair had decided to appear on a Sunday-morning program—
BBC Breakfast with Frost
—to again make his case on Iraq to the British people.

Frost looked into the camera lens. “And now the news is that the prime minister’s here. Good morning, Prime Minister.”

“Good morning, David,” Blair responded with a smile.

Straight to Iraq. Hans Blix would be presenting a new report to the U.N. the next day, Frost said. If the weapons inspectors hadn’t been able to complete their work yet, would they be allowed to keep searching?

“They’ve got to be given the time to do the job,” Blair said. “But it’s important to define what the job is, because this is where I think a lot of the confusion comes in.”

The inspectors were charged with certifying whether Saddam was cooperating, and that meant more than just granting access to sites, Blair said. Saddam had to say where the weapons material was hidden, show it to the inspectors, and then destroy it.

“So, we would give him extra time—Hans Blix?”

“We’ve gone down the U.N. route precisely because the inspectors have got to be the means of trying to resolve this peacefully. If the inspectors are able to do their job, fine. But if they’re not able to do their job, then we have to disarm Saddam by force.”

His talking point out of the way, Blair returned to Frost’s question. Blix’s team should be allowed whatever time it needed, he said, but Saddam had to cooperate by revealing everything.