500 Days (53 page)

To deal with those complexities, Wilner threw the equivalent of a baseball pitcher’s changeup to knock his adversaries off balance. He didn’t file a habeas petition—in fact, he didn’t challenge his clients’ confinement at all. Instead, his motion sought only to compel the administration to grant the Kuwaitis basic rights—access to the courts, the right to a lawyer—so that they could raise claims about the
conditions
of their confinement. The distinction was subtle, but Wilner hoped, by focusing solely on procedure, it could serve as the first step toward a full-throated challenge to the government’s policy.

For the strategy to succeed, though, Wilner and his team needed to dig up a precedent showing that constitutional rights apply to foreigners held in overseas locations controlled by the United States. It seemed a long shot, but such
a prior ruling would strike at the heart of the government’s claim that Guantanamo lay outside the reach of American law.

Associates at the law firm scoured legal databases, and several times a week dumped piles of cases on Wilner’s desk that contained any discernible relevance to a range of issues raised by the lawsuit. Then, one day, a lawyer on the team dropped off a Xeroxed copy of the decision in a little-known 1977 case called
Ralpho v. Bell,
heard in the court of appeals for the District of Columbia. The district where Wilner’s case was being heard!

The case had nothing to do with war or detention or enemy combatants. Instead, it involved a man from Micronesia who was contesting the procedures followed by United States officials in deciding how much he was paid out of a compensation fund administered by the government. There had been no hearing prior to the determination that Ralpho was owed little, and he had no idea how the conclusion had been reached. The American response was simple—while the United States had political control of Micronesia through a trust agreement, it had no sovereignty over the territory. No sovereignty, no constitutional rights, no need for due process.

With each sentence he read, Wilner’s excitement grew. Then came the clincher:

It is settled that there cannot exist under the American flag any governmental authority untrammeled by the requirements of due process of law.

It didn’t matter, the court ruled, that the United States had no sovereign authority over Micronesia. Ralpho had the right to due process—hearings, lawyers, everything.

“Shit!” Wilner exploded in delight. “This is our case!”

He rushed to show the decision to his colleagues. As far as he was concerned, their position had just become ironclad.

•  •  •  

Two military officers stood at the doorway of an interrogation booth in the recently constructed Camp Delta at Guantanamo Bay. Camp X-Ray, the makeshift quarters thrown together before the first detainees arrived, had been shuttered, and now the rooms for questioning detainees were more private and had a more professional appearance.

One of the officers was Britt Mallow, the commander of the Criminal Investigation Task Force that was charged with conducting interviews for use in
prosecutions against detainees. The other was a senior official with the Defense Intelligence Agency, who was purported to be one of the military’s most experienced interrogators. The two were chatting about nothing in particular, and the conversation drifted onto the topic of interrogation tactics.

“You know, all these guys are the same,” the intelligence officer said. “All you’ve got to do is find what button to push and they’ll tell you anything you want to know.”

Mallow stared at his colleague.
How fucking stupid is that?

“I don’t get where you’re coming from,” Mallow said. “You’ve got to take into account the backgrounds of these people for an interrogation. Are you saying that a guy from India is going to have the same cultural background as a guy from North Africa as a guy from Eastern Europe and a guy from South Texas?”

Most of the detainees were rural laborers, not trained soldiers or cunning spies. The majority were terribly unsophisticated. An individual approach had to be used for all of them—a cookie-cutter plan might work with some and shut down others. Questioning them was a delicate dance.

The intelligence officer sneered. “I’ve been around,” he said. “I know how to do this.”

Mallow’s heart sank. The ranks of the intelligence interrogators were filled with kids in their late teens, with all of the arrogance and ignorance of youth. Many didn’t bother to read the files of the captives they berated. They were green, Mallow had told himself. They would grow into their jobs.

But this intelligence officer had been around the block on interrogations. And he had no idea what he was talking about.

There was no one to teach these kids how to do the job. This was a problem with no easy fix.

•  •  •  

The lawyers gathered at the White House counsel’s suite were ready to do battle. With just days to go before the next hearing in the Hamdi case, the debate over how best to win legal support for administration policies had yet to be resolved. Judge Doumar was beside the point—his ruling would certainly be appealed, no matter what his decision. But Ted Olson continued to worry about the Supreme Court; however valid the White House considered its legal analysis to be, Olson was doubtful the court would agree.

At the meeting in Gonzales’s office, Bradford Berenson was arguing that Olson had good reason for his misgivings. Berenson had worked as a clerk for Justice Anthony Kennedy, who was frequently the swing voter between the
Supreme Court’s conservative and liberal jurists; Brett Kavanaugh, another White House lawyer who had worked for Justice Kennedy, agreed.

“You have to understand,” Berenson told the group, “Justice Kennedy will never accept that the president has absolute discretion to lock up an American citizen and deny him access to a lawyer. His feelings about the right to counsel are very, very strong.”

Addington broke in. “It’s ridiculous to surrender the president’s authority based on a supposition about what Kennedy
might
do. No one knows that.”

“David, you’ve got two people in this room who have both worked very closely with Justice Kennedy,” Berenson said. “We are the best source of information you’ve got about how he thinks. And both of us are telling you the same thing. He will never go along with this.”

“That’s naive,” Addington said.

“And that is
know-nothingness
!” Berenson shouted, slapping the coffee table. His hand caught the edge of an empty candy dish; it flipped into the air, landing with a clatter.

The shouting continued, when a secretary appeared at the door of the office.

“Everything okay in here?” she asked.

“Yes, it’s fine,” Gonzales replied with a smile. “Don’t worry.”

The secretary left and closed the door. For a moment, no one spoke.

Addington broke the stillness. His voice was calm. He had shifted from anger to teaching mode. He glanced around at each of his colleagues.

“Is there anybody in this room who believes that what we are about to do here is actually unlawful or unconstitutional?” he asked.

No one replied.

“And is this the policy that is the most protective of the citizens of the United States?”

Again, silence.

Addington sat back as he raised his arms and shrugged. “So what more is there to discuss?” he asked.

•  •  •  

The debate ended, and the decision was left to Gonzales. He sided with Addington. The administration would push the most aggressive legal position possible.

•  •  •  

On the afternoon of June 24, a group of reporters was waiting in the White House Rose Garden when Bush stepped behind a podium to deliver a speech that had been billed as a major policy address.

He opened his remarks at 3:47. “For too long, the citizens of the Middle East have lived in the midst of death and fear,” he said. “The hatred of a few holds the hopes of many hostage.”

It was intolerable: Israelis were captive to terror, Palestinians were living in squalor and humiliation. Without change, there was little reason to hope for a resolution of the Middle East conflict. But there was a way out of the impasse.

His vision, Bush said, was for the creation of two states living side by side in peace. To accomplish that, changes had to be made.

The Palestinians had to elect new leaders, people who were not compromised by their involvement in terrorism. They needed to construct new political and economic institutions, implement new security measures with their neighbors, adopt a new constitution granting authority to the Palestinian parliament, and embrace a working democracy.

“Today, Palestinian authorities are encouraging, not opposing, terrorism,” he said. “I’ve said in the past that nations are either with us or against us in the war on terror. To be counted on the side of peace, nations must act.”

Bush spoke of the obligations of the Palestinians for almost eight minutes. He stated that the United States would support the creation of a Palestinian state only once all of those conditions were met. Then for just over a minute, he said that, once steps were made to improve security in the region, the Israelis had to withdraw their forces to positions held the previous year, stop settlement activity in the occupied territories, and release frozen Palestinian assets.

“The choice here is stark and simple,” Bush said. “The Bible says, ‘I have set before you life and death . . . therefore choose life.’ The time has arrived for everyone in this conflict to choose peace and hope and life.”

•  •  •  

The Bush speech landed with a decided thud in the Blair government. British officials were at a loss to understand why the president had bothered making it. It could only stir up more enmity.

They found the concluding words particularly astonishing. In addressing a conflict between Jews and Muslims, the president quoted from
the fifth book of the Hebrew Bible
? Who thought
that
was a good idea?

The problem wasn’t with the speech’s premises; on those, Bush was right. Palestinian terrorism
was
undermining the peace process. Palestinian leaders
were
advocating violence. The Palestinian legislature
was
toothless, and needed real power that could come only from a new constitution. And Israel could not change its policies until the country’s security was ensured.

No, the largest problem was with the speech’s timing in the midst of heightened hostilities. The Palestinians saw the Israelis as the aggressors and viewed terrorism as the only choice they had to stand up to a regional superpower. They considered demands by the United States to be suspect from the start. Dismissing all of those realities would do nothing to calm the churning waters.

Perhaps, some of the British officials suggested, the speech was Bush’s attempt to satisfy Blair’s insistence that his Iraq policy must be folded into the pursuit of a broader Middle East peace initiative. If so, it failed miserably.

•  •  •  

There were no federal judges in the Richmond courtroom when the June 25 hearing began on the Hamdi appeal. Instead, the three-judge panel was listening in from their chambers by teleconference, with one in Charlottesville, Virginia, and the other two in Greenville, South Carolina.

Clement presented his argument first, describing the historic power of the military and the president to detain an enemy during a time of war.

Judge J. Harvis Wilkinson III interrupted from Charlottesville. “How will you decide when the end of hostilities has happened, and the detainees can be released?”

True, Clement said, that posed a challenge. “But it’s crystal clear that there are hostilities now,” he said.

Wilkinson pressed his point. “This is a different kind of war,” he said. “There is not going to be a VE Day. There is not going to be a VJ Day. What does it mean for this detainee? Is it open-ended?”

The real issue, Clement said, is whether the executive branch had the right to hold a detainee during wartime. The fact that the end of a war couldn’t be predicted didn’t deprive the president and the military of that authority.

If, instead, the courts intervened and required evidence justifying the designation of an individual as an enemy combatant, the consequences would be enormous.

“Are we really going to call as a witness a U.S. military official who right now is on the front waging a war, and call him back to Norfolk so he can be a fact witness?” Clement asked. “Deference, a proper respect for the military’s judgment about who is an enemy combatant, a judgment the military has been making for two centuries, avoids that parade of horribles.”

Meddling with military judgments by bringing these cases into court, Clement said, would impede the ability of the armed forces to obtain critical intelligence and protect American lives.

“In an extraordinary case like this,” he said, “access to counsel would really interfere with the ongoing interrogation.”

Next, Hamdi’s side. Geremy Kamens, who worked with Dunham in the public defender’s office, stepped to the podium. “Your honor,” he said, “I believe the Constitution prevents the indefinite detention of an American citizen.”

Wilkinson broke in again. “What is the violation of constitutional law when the United States is detaining someone who has taken up arms against America and is captured on the field of battle?” he asked. “This has been done in every war that I know. I don’t know of any court decisions that said this is unconstitutional.”

Without the appointment of an attorney, Kamens replied, there was no check on whether the military’s designation was correct. They had provided no evidence that Hamdi was, in fact, an enemy combatant.

“The appointment of counsel means an end of intelligence-gathering efforts, doesn’t it?” Wilkinson asked.

“I’m not sure it would.”

“Sure it would!” Wilkinson snapped.

Once counsel was appointed, Wilkinson said, he couldn’t conceive of how the entire panoply of constitutional rights could be withheld from a detainee.