The Longest War (20 page)

One of the suspicious cell phones had been used to make hundreds of calls in the vicinity of both the Milan residence and the country house of the CIA’s station chief in Milan, Robert Lady. Armed with a warrant, Spataro’s investigators searched Lady’s country house in June 2005 and found that he’d gone on a ten-day trip to Cairo a week after Abu Omar’s abduction. The investigators also found surveillance photos of Abu Omar taken on the street where he was abducted.

In February 2007, Abu Omar was finally released from his Egyptian jail. “Without the human rights and media campaign, I would still be in prison,” he said. When the Abu Omar kidnapping case
went to trial in Milan
, as expected none of the indicted CIA officials showed up. All of the officials were found guilty in absentia in 2009 and were sentenced to prison terms of up to eight years.

The torture of Abu Omar was just one of many cases in the U.S. conduct of the “war on terror” that was at odds with America’s own legal traditions and international law and was part of a larger pattern in which the United States ceded the moral high ground in an often futile, counterproductive, and extralegal effort to protect itself. The president’s lawyers wrote briefs that allowed the government to abuse and coerce prisoners in ways that amounted to torture. Bush’s lawyers also ruled that prisoners in American detention were not to be accorded the protections of the Geneva Convention, international standards of conduct that the Eisenhower administration had first signed on to.

Many key decisions about the conduct of the war on terror were made in secret by Cheney and Defense Secretary Donald Rumsfeld. The pair’s close working relationship went back decades to 1969, when Rumsfeld had hired the future vice president to be his assistant in the Nixon White House. On November 10, 2001, Cheney chaired a small group at the White House that authorized the president to detain anyone who had “
engaged in
, aided or abetted, or conspired to commit acts of international terrorism.” Those detainees were not presumed to be innocent nor were they entitled to a public trial.

In a portent of the dominance that Cheney would wield over policy making in the Bush administration, Secretary of State Colin Powell and National Security Advisor Condoleezza Rice only found out about this decision after Bush and Cheney had met for their weekly private lunch on November 13, during which Cheney had given the president the four-page text of the detention directive to sign. Powell, who would be the official who would have to deal most directly with the leaders of the
four dozen nations
whose citizens would end up at Guantánamo, learned about this decision from CNN. “
What the hell
just happened?” Powell exclaimed to a colleague when he watched the report. The military order titled “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism” was
news even
to the Joint Chiefs of the military.

In December 2001, faced with the problem of where to house prisoners as the Taliban fell, the administration alighted on the idea of holding them at Guantánamo Bay, a naval base the U.S. had leased from Cuba since 1903. As Rumsfeld put it on December 27, 2001, “I would characterize Guantánamo Bay, Cuba, as the least worst place we could have selected.” Guantánamo was
attractive to administration officials
because they believed it placed the detainees outside the reach of American laws, such as the right to appeal their imprisonment, yet it was only ninety miles off the coast of Florida, so it was accessible to the various three-letter agencies that would need to travel there to extract information from what was believed to be a population of hundreds of dangerous terrorists. But as the constitutional scholar Philip Bobbitt points out, the notion that Guantánamo was not subject to American laws simply because the territory was a long-term lease from Cuba was a flimsy and Jesuitical interpretation of the law: “
The whole theory
of the U.S. Constitution is that it applies laws to the acts of the State.”

On January 9, 2002, two days before prisoners arrived for the first time at Guantánamo from Afghanistan, John Yoo, a thirty-four-year-old lawyer in
the White House Office of Legal Counsel, circulated a draft memorandum to Bush officials that would provide much of the legal reasoning for the administration’s future actions concerning the detention and interrogation of prisoners. Yoo, a former law professor and clerk to Supreme Court Justice Clarence Thomas, concluded that neither the Taliban nor al-Qaeda were entitled to prisoner-of-war status, or the protections of the Geneva Convention. Yoo reasoned that al-Qaeda was a stateless entity not protected by Geneva and that the Taliban ran a “
failed state
,” which meant that their treaty rights could be ignored. Much of Yoo’s reasoning made little sense. The concept of a “failed state” wasn’t recognized by international law. Also, Afghanistan was a signatory to the Geneva Convention, and while the United States had not officially recognized the Taliban government, U.S. officials had met with Taliban officials on many occasions before 9/11 and had treated them as the de facto government of Afghanistan. In addition, there were no clauses in the Geneva Convention allowing states to unilaterally opt out of any of its provisions. And Article 3 of the Convention banned “humiliating and degrading treatment” of prisoners even in the cases of conflicts that were not between two states. The Geneva Convention plainly stated that all prisoners in
any
type of conflict were given certain rights.

William Taft IV, a patrician lawyer who was a great-grandson of President Taft and had served in Republican administrations going back to Nixon, submitted
the State Department’s response
to Yoo’s memorandum. Taft described Yoo’s reasoning as “seriously flawed,” “procedurally impossible,” and “unsound.” Taft pointed out, “In previous conflicts, the United States has dealt with tens of thousands of detainees without repudiating its obligations under the [Geneva] Convention.” (Four years later the Supreme Court would endorse this elementary point when it granted Geneva protections to all prisoners held in American custody.)

But it was Yoo’s arguments that would win the day. On February 7, 2002, Bush signed an executive order endorsing Yoo’s opinion that the Geneva Convention did not apply to al-Qaeda and asserting that the Taliban were “unlawful combatants.” Bobbitt, who had served in Democratic and Republican administrations going back to President Carter, made an acute observation about the contorted policy implications that flowed from the Bush administration’s decision to treat prisoners as “unlawful combatants” who could also be prosecuted for crimes. “Like prisoners of war, these persons may be held indefinitely without formal charge.
Like criminals
, they can be tried and sentenced
for planning or carrying out acts of violence for which soldiers are not prosecuted.”

Given the fog of propaganda surrounding the Guantánamo prisoners—whom Rumsfeld described on a well-publicized visit to the base on January 27, 2002, as “among the most dangerous, best-trained,
vicious killers
on the face of the earth”—it may be surprising to learn that
only some 5 percent
of all the detainees held at Guantánamo were ever apprehended by U.S. forces to begin with. Why is that? Almost all of the prisoners there were turned over to American forces by foreigners, some with an ax to grind, or more often for a hefty bounty or reward. After U.S. forces invaded Afghanistan in late 2001, a reward of five thousand dollars or more was given to Pakistanis and Afghans for each detainee turned over. While rewards can be a valuable law enforcement tool,
they have never in the past
absolved law enforcement authorities of the necessity of corroborating the information that motivated the reward. But the U.S. military accepted the uncorroborated allegations of the award claimants with little independent investigation.

As a result of the fact that many in Guantánamo were either foot soldiers for the Taliban or innocents swept up in the fog of war, FBI Special Agent Daniel Coleman, who was arguably the most knowledgeable person in the U.S. government about al-Qaeda, says as a source of information the Guantánamo camp was a bust: “
I never saw anything useful
.” Coleman wasn’t the only FBI veteran who felt this way. Michael Rolince, a top FBI counterterrorism official, says, “I
don’t recall any information
that was relevant [to my office] coming out of Guantánamo.”

Guantánamo was also a bust as a place to bring terrorists to justice. By the time the Obama administration came into office seven years after the prison had opened, of the some eight hundred detainees sent to Guantánamo, the government had convicted only three prisoners. One was
David Hicks
, an Australian who plea-bargained his way out. Another was
Salim Hamdan
, bin Laden’s driver, whom the prosecution had portrayed as some sort of big deal within al-Qaeda, but when it came to his sentencing he was given time served plus five months. The Hamdan case was ridiculous on its face; at the end of World War II, Hitler’s driver was not tried as if he were a senior Waffen SS officer. Self-confessed al-Qaeda operative
Ali Hamza al-Bahlul
was convicted of conspiracy, solicitation to commit murder, and providing material support for terrorism in November 2008 and was sentenced to life. But these three cases represented a successful prosecution rate of less than 0.5 percent at the prison camp.

And Guantánamo was a place where American interrogators in at least one case tortured an al-Qaeda member to the point he was no longer prosecutable in any U.S. court. This was not the conclusion of a liberal advocacy organization but of a senior Pentagon official, Susan Crawford. Crawford was a retired judge who had served as general counsel for the U.S. Army under President Reagan and was appointed to oversee the military commission process at Guantánamo by the Bush administration. In January 2009, Crawford said that the cumulative effects of sustained isolation, sleep deprivation, nudity, and prolonged exposure to cold on the Saudi prisoner Mohammed al-Qahtani met the
legal definition of torture
. Crawford also said that this treatment had threatened to kill Qahtani and as a result of this abuse she could not refer his case for prosecution.

Qahtani had tried to enter the United States at the airport in Orlando, Florida, in the summer of 2001. Given the fact that lead hijacker Mohammed Atta was probably waiting for him outside the airport, Qahtani was likely to be the twentieth hijacker.
But he was turned back
by a savvy immigration official who was suspicious of the fact that Qahtani spoke no English, had very little money, and was traveling on a one-way ticket.

Qahtani was later detained in Afghanistan and sent to Guantánamo. At one point there he was interrogated for forty-eight days, more or less continuously, between November 23, 2002, and January 11, 2003. Loud music and white noise were played to prevent him from sleeping. Qahtani was forced to perform dog tricks and often exposed to low temperatures. At a certain point his body started closing down and he was given drugs and enemas so that the interrogations could continue. An FBI official noted in a letter to the Pentagon in June 2004 that Qahtani began “evidencing behavior consistent with
extreme psychological trauma
(talking to non-existent people, reporting hearing voices, crouching in a cell covered with a sheet for hours on end).”

It should have been obvious that using coercive interrogation techniques on Qahtani was not going to yield much. Anyone with the most superficial understanding of al-Qaeda would have understood that Qahtani, as one of the “muscle” hijackers, might have known a great deal about the training regime at al-Qaeda’s camps in Afghanistan, but that would be the extent of his knowledge. Until the last moments of the operation, the muscle hijackers didn’t even know what the targets were on 9/11, let alone the outlines of other al-Qaeda plots, nor did they have much contact with the leaders of the terrorist organization. The abuse of Qahtani produced little valuable intelligence
and, in the end, meant that he would not stand trial for his peripheral role in the 9/11 attacks.

Critics of Guantánamo
compared it to a gulag
. This, of course, was nonsensical. The Soviet gulags killed millions through starvation, executions, and forced labor. The issue at Guantánamo was not, generally speaking, the problem of the prisoners’ treatment. The real issue was that many of the prisoners at Guantánamo were innocent; were held for years without explanation, some in solitary confinement and were unable to see lawyers during the first three years that the prison operated. Their very presence at the facility was kept a secret for years because the military would not release the names of detainees
until April 2006
. Such forced disappearances were human rights violations that the United States had in the past condemned, whether committed by right- or left-wing dictatorships.

Prisoners at Guantánamo faced trial before “military commissions,” a legal concept that many Americans probably assumed was similar to the court-martial system for U.S. servicemen or foreign soldiers captured on the battlefield accused of all manner of crimes, including war crimes. In fact, a military commission is a very different proceeding than a court-martial, which gives defendants many of the same kind of rights that an American civilian trial entitles them to. In the military commission system the
accused was not able to see all
of the evidence against him, and “evidence” obtained by coercion and hearsay was admissible in the proceedings.

In June 2006 the Supreme Court ruled in
Hamdan v. Rumsfeld
that the prisoners in Guantánamo were
covered by the Article 3
protections of the Geneva Convention, which prohibit abusive or humiliating treatment of prisoners, something that the Bush administration had denied was the case for four years. It was a landmark decision of the court because it determined that even in a war no president was above the law. There was an irony here: Cheney and others on his staff had pushed hard to turn the presidency into a quasi-monarchical office and in so doing had ended up creating case law and precedent that would serve as an important brake on presidential powers for the foreseeable future.