500 Days (51 page)

In Guantanamo’s house of mirrors, Thomas realized, success didn’t breed admiration. It triggered retribution.

•  •  •  

The word in Norfolk legal circles about Magistrate Judge Tommy E. Miller was mixed. Lawyers considered him to be extremely knowledgeable of the law and a stickler for the rules of procedure. Still, some prosecutors questioned his evenhandedness, scenting an antigovernment bent. So, when the habeas petition for Hamdi was assigned to Miller, there were groans at the United States Attorney’s Office and cheers among the public defenders led by Frank Dunham.

Their responses proved prophetic—by May 21, Miller had given the government a judicial shellacking. Over the prosecutor’s objections, he accepted Dunham as a next friend of Hamdi, appointed him as counsel, and ordered the government to allow him to meet with his new client. And there were to be no mysteries about Hamdi—if the government wasn’t going to charge him with a crime, Miller declared, it would have to come up with a persuasive argument for his continued detention.

•  •  •  

What exactly did “severe pain” mean, anyway?

That was the question bouncing around the Office of Legal Counsel, as John Yoo and other lawyers there worked on their assessment of the CIA’s proposal for harsh interrogations.

The phrase was a set piece in all of the domestic and international
prohibitions against torture. If an action is taken with the intent to inflict severe pain, unless it is part of a lawful punishment imposed for crimes, then it constitutes torture, the rules read.

But that description, the administration lawyers concluded, was murky. They set out to clarify it.

Jennifer Koester, a junior lawyer in the office just a year out of Yale Law School, had been assigned to determine the meaning of the words. She began by looking up the word
severe
in two dictionaries. She studied the legislative or ratification history of relevant rules—the antitorture prohibitions under Title 18 of the Federal Criminal Code and the U.N. Convention Against Torture—as well as a handful of cases heard before both domestic and overseas courts.

When she finished that review, Koester prepared a first draft of her analysis, arriving at a conclusion that was even vaguer than the words
severe pain.
It was the result, she wrote, of “extreme conduct” that went beyond cruel, inhuman, or degrading treatment.

The draft went to John Yoo, and he wasn’t satisfied. There had to be a stronger basis in the law, he believed, for coaxing out a more precise meaning.

On May 23, he wrote a comment about the draft. “Is severe used in this way in other parts of the US Code?”

Koester and other lawyers got back to work, looking for any law that used the words
severe
or
severe pain.

•  •  •  

The legal fight over Yaser Hamdi resumed on May 24.

Judge Miller, government lawyers decided, had exceeded his authority. He was a magistrate, essentially an assistant to the district court judge. He was supposed to be handling pretrial issues, but his orders amounted to granting the habeas motion.

The government filed its objections with Federal District Judge Robert Doumar, who had authority to toss out Miller’s orders.

The filing marshaled a number of precedents to contest the orders, asserting that Miller improperly applied the next friend rules and did not have the power to appoint an attorney to Hamdi. That was bad enough, the document said, but by ruling on issues that should not have been taken up until later, Miller had robbed the government of the chance to present its arguments for keeping Hamdi isolated.

For example, the military needed to interrogate Hamdi for any
knowledge he might possess about al-Qaeda and its plans. Plus, evidence showed that al-Qaeda operatives could use a meeting with
anyone
for strategic—and dangerous—advantage.

“It is well known,” the filing said, “than an al Qaeda training manual uncovered by the United States provides instructions for passing concealed messages to their colleagues from behind bars after they have been captured—even through unwitting intermediaries.”

After the document was filed, a local reporter called Dunham to ask him about the claim that Hamdi might use him to communicate with other al-Qaeda members.

“It’s so ridiculous, I just won’t give it the time of day,” Dunham replied.

The lawyer could not have known, but the government’s claim was also wrong. The filing was referring to the Manchester Manual, which was found not by the United States, but by Britain. And despite the claim that it was “well known” that the document described how to pass secret messages from prison, it did nothing of the sort.

•  •  •  

“That sounds idiotic, doesn’t it?”

Federal Judge Robert Doumar scowled as he spoke the words to Gregory Garre, the assistant to the solicitor general. It was May 28, and Doumar had taken up the Hamdi case days before, putting on hold all of Magistrate Judge Miller’s orders. But now, in his first hearing on the case, the white-haired jurist was erupting in anger at the government in ways that made Miller’s show of annoyance seem tame by comparison.

Garre had just argued that Hamdi had no right to a lawyer, since he had not been charged with anything. But, as a captured enemy combatant, he could be held indefinitely. Doumar rolled his eyes.

“We’re not dealing with a novel doctrine here,” Garre said. The military historically had the right to capture enemy combatants under the rules and customs of war, and could hold them until the end of the conflict.

“That is mind-boggling!” Doumar responded. “When are these hostilities going to end? Can he be held forever? Can he be held for life?”

Frank Dunham, the federal public defender, argued that if he was not allowed to speak to Hamdi, there would be no way to challenge the government’s designation that he was an enemy combatant.

“Allow me to see him so I can develop his side of the story,” he said. “He
could well say that ‘I was standing around tending my camel when I got rounded up.’ ”

Doumar agreed. “Not letting Hamdi see a lawyer just seems to run counter to the very basic right to counsel that is part of the constitution,” he said.

He issued his ruling, upholding Magistrate Miller’s order. The government had three days to allow Dunham to meet with Hamdi, in private. And its lawyers had to provide a written explanation for why Hamdi was being detained.

The three days, Doumar said, should be enough to give the government the chance to challenge his ruling in a higher court.

“How much time would you need to drive to Richmond or Washington to file an appeal?” he asked.

Then he smiled. “And if you can find a judge to overturn my decision,” he said, “more power to you.”

•  •  •  

John Yoo shook his head as he lingered over the words from Doumar’s ruling.

This is outrageous.
This country was at
war.
Hamdi had been seized on the battlefield. And the administration was supposed to treat him like a common criminal defendant? Maybe summon a few soldiers from Afghanistan to Norfolk so they could describe the circumstances of Hamdi’s capture, just to ease Doumar’s concerns?

This judge’s ruling wasn’t just some distraction on the sidelines of the war on terror, Yoo fumed. It struck at the very heart of the conflict. If left unchallenged, it would set a precedent that could wreak untold damage.

He contacted Ted Olson, the solicitor general. “Ted, you know, I’m really worried about this case. It could go to the Supreme Court, and I think it’s going to raise some fundamental questions of whether we’re at war.”

It was a bad idea, Yoo said, to leave a matter of this importance in the hands of some local federal prosecutors. They needed to put together a special team of administration lawyers reporting to Olson, which would handle Hamdi and the other habeas cases.

A good idea, Olson said. “We need to make sure we put the best people on this,” he said.

•  •  •  

Dozens of administration lawyers gathered around a conference table in an ornate, ceremonial room on the fifth floor of the Justice Department. Like Yoo, they had been staggered by Judge Doumar’s ruling; most in the group had
assumed that he would brush aside the Miller orders, or maybe limit them. But certainly not
uphold
them.

The legal team that had been assembled to handle the habeas cases was just getting its footing, but now there was no time left for preparations and debate. Ted Olson had called this meeting to set the strategy for the next few weeks on how to manage the Hamdi problem.

“All right, you know what Judge Doumar’s decision has been on Hamdi, and we’re going to have to figure out what our response is going to be,” he told his colleagues. “I want to hear everybody’s views.”

The first suggestion was simple: Do nothing. A number of lawyers said that the administration should not appeal Doumar’s ruling, to avoid alienating him. Whatever a higher court ruled, the case would be kicked back to Doumar. He was renowned for his anger and had the habit of tongue-lashing lawyers who challenged him. In Norfolk, the joke was that Judge Judy, the brutal television jurist, quaked when she saw Doumar coming.

“We should just give Doumar the answers he wants,” one of the assistant United States attorneys from the district said. “Work with him in the four corners of the decision.”

That was the best idea and didn’t seem to have much downside, another lawyer said. Even if Doumar demanded to hear from the soldiers who had picked up Hamdi, so what? Bring them back, take them to court, have them answer some questions. Simple.

Lawyers from the State Department and the Pentagon agreed. “It’s not like this is a trial,” a lawyer from State said. “He’s basically saying this raises constitutional concerns and he wants a briefing on the constitutional issues. We can—”

Yoo interrupted. “This judge has to be slapped down,” he said. “He’s gone way beyond his authority.”

The administration had no choice, Yoo said, but to appeal. “It’s important that this judge not be allowed to interfere with decisions that are going to have implications with military and intelligence operations,” he said. “This guy’s acted way outside what he’s allowed to do, he cited no precedent for it, and he shouldn’t be allowed to get away with it.”

Doumar was casting himself, in an act of misplaced grandiosity, as some sort of judicial monarch, Yoo said. “I don’t think this one guy, this one judge, this outlier should, because of the luck of the draw, be allowed to dictate how American detention policies can work!” he snapped.

The vehemence of his outburst took his associates aback. Yoo was usually
coolheaded, but this time he was unable to contain his fury at the idea of knuckling under to this single judge.

The debate dribbled on for a bit longer, but no one in the room came close to matching the intensity of Yoo’s passion.

•  •  •  

On Saturday, June 8, Gonzales was in Austin preparing to deliver a speech when he received a call from Jim Haynes at the Pentagon.

“I need to speak to you on a secure line,” Haynes said.

“Okay. Call me back at two.”

He instructed Haynes to dial the office of Johnny Sutton, the United States attorney for the Western District of Texas. Gonzales made his way a few blocks to a building on the corner of Ninth and Congress. Ordinarily, Sutton’s tenth-floor suite was locked on the weekend, but someone had been told to open it for the White House counsel. Gonzales walked into Sutton’s personal office, where the black, bulky secure phone was hooked up. The call came through right on time.

“Everyone has reached an agreement on Padilla,” Haynes said. The military was going to take him into custody.

The debate about what to do with Padilla had been raging for weeks, with officials racing to reach a decision before Judge Mukasey’s next hearing, scheduled to be held in three days. Mukasey could well order Padilla’s release from prison unless the government charged him with a crime; a material witness warrant might not be enough to hold an American citizen for months.

But indicting him was inconceivable. Too much of the evidence against him had come from Abu Zubaydah and another suspect, Binyam Mohamed, who had been beaten by Pakistani intelligence officers when they questioned him. National security was at issue. The administration couldn’t just trot out two high-level enemies of the United States who had been secreted away in prisons overseas.

Not only that, but trying suspected terrorists in civilian court had proved to be messy affairs. Moussaoui had already transformed his criminal trial into a circus, firing his lawyers, launching into lengthy diatribes against the West, and trumpeting his wish for the destruction of America. The trial of John Walker Lindh hadn’t gone much better—his lawyers were mounting an aggressive defense, releasing government photographs that showed their client bound, naked, and blindfolded; demanding access to detainees at Guantanamo; and seeking to subpoena members of the military and the FBI. Criminal prosecutions, some
administration lawyers argued, were too unpredictable for cases that blended the usual types of evidence with classified intelligence.

Still, the process for making the decision was complicated. The CIA compiled a written assessment of the available intelligence about Padilla, including the statements from Zubaydah. That information was then turned over to the Pentagon, which added data collected by the Defense Intelligence Agency. An assessment of whether Padilla qualified as an enemy combatant was signed by Rumsfeld and forwarded to Ashcroft. There, the final analysis was prepared, attesting that Rumsfeld’s determination complied with the law, that the military could legally take Padilla into custody, and that Ashcroft recommended the decision as a matter of policy. The full package of information was then sent back to Haynes at the Pentagon.

Gonzales thanked Haynes for the update. He would take the recommendation to Bush once he got back to Washington.

•  •  •  

The next morning, Sunday, Gonzales dropped by Addington’s office to read through the Padilla recommendation. The vice president’s counsel and Flanigan had been shepherding the documents through the approval process and both men had kept copies.