500 Days (84 page)

Condoleezza Rice succeeded Powell as secretary of state and remained with the Bush administration until its final day, then returned to Stanford University to resume her position as a political science professor. John Ashcroft left the Justice Department in 2005 and set up a Washington consulting firm, the Ashcroft Group.

At the Pentagon, Iraq also played a role in the departure of Donald Rumsfeld. He resigned in November 2006 after Republicans suffered bruising losses in midterm elections, in large part because of public furor over Iraq. In 2007, he formed the Rumsfeld Foundation, a charitable group. Paul Wolfowitz served as president of the World Bank but resigned in 2007 amid accusations that he violated ethical rules in arranging a generous pay and promotion package for Shaha Ali Riza, his companion. He is now a visiting scholar at the American Enterprise Institute.

Throughout the post-9/11 political tumult, the most contentious controversy was about the treatment of detainees, with administration critics contending it amounted to torture that produced no information of value, while supporters countered that it was legal, necessary, and effective. At the center of that dispute were an assortment of administration lawyers—Yoo, Gonzales, Addington, Flanigan, and Haynes.

Yoo left the Justice Department in 2003 after he was passed over to run the Office of Legal Counsel. He recommended Jack Goldsmith, a professor on leave from the University of Chicago Law School, for the position. He then returned to the faculty of Berkeley Law School at the University of California. Six weeks into the job, Goldsmith read Yoo’s memos on detainee treatment and was troubled by what he saw as narrow definitions of torture, shoddy legal analysis about presidential powers, and flawed conclusions. He withdrew the opinions in 2004, rendering them irrelevant to the administration’s policy considerations.

Partially in response to that decision, the Office of Professional Responsibility at the Justice Department launched an investigation of the Office of Legal Counsel and the analyses it had conducted on terrorism issues. Yoo’s decisions were a primary focus of the inquiry.

The investigative report concluded that Yoo “knowingly provided incomplete and one-sided advice in his analysis” on the president’s power at a time of war. It also criticized his determination that an interrogator was not engaged in torture if his mistreatment of a detainee was for the purpose of obtaining information, rather than simply to inflict pain; the report concluded that this was insufficient and failed to convey the ambiguity of the laws in this area.

The accusation against Yoo that he intentionally crafted his constitutional interpretation to fit the needs of the administration is suspect. First, his writings
before
he joined the Office of Legal Counsel, most of which appeared in law reviews, advanced the same argument on presidential powers that he included in the memos. Moreover, some lawyers who worked with him in the Justice Department say that Yoo was—and remains—a passionate advocate for his analysis, and that they have no doubt he believes his legal reasoning is sound.

Still, those lawyers also believe Yoo inadvertently set up the administration for trouble because of an arrogant certainty that drove his writing. He waved away differing opinions, these lawyers said, and failed to reconsider his interpretation when the implications of its findings became nonsensical.

Based on his analysis, the president at a time of war could lawfully set up concentration camps for Muslims, murder the children of terrorist suspects to force the suspects to talk, and whatever else he chooses to do so long as he believes it is necessary for national security. Yoo acknowledged as much during his questioning by lawyers with the Office of Professional Responsibility for their report; when asked if the president could lawfully order the massacre of a village of civilians during wartime, Yoo’s response was “Sure.”

The lawyers who relied on the Yoo memos paid a price for that decision. Both Haynes and Flanigan lost coveted positions in government. Haynes had been nominated for a federal judgeship; Flanigan was selected by Bush to serve as deputy attorney general. Both nominations set off debates on Capitol Hill, largely because of their connections—sometimes amounting to little more than attending a briefing—to policies related to detainees and other terrorism issues. Flanigan returned as a partner to the law firm of McGuireWoods, where his practice focuses on international transactions and government investigations. Haynes was hired as the chief corporate counsel at Chevron.

With controversies swirling around them, both Gonzales and Addington struggled to find work after they left government service. Addington finally landed a job in 2010 as the vice president of domestic and economic policy studies at the Heritage Foundation; in 2009, Gonzales began teaching political science as a visiting professor at Texas Tech University.

However the decisions on the interrogation tactics are viewed, they have to be considered in context. While Goldsmith was deemed by some as a hero for withdrawing the original interrogation memos, he bristled at the hostility shown to Yoo and other lawyers by the press and the public. None of this was a “struggle between the forces of good and evil,” he wrote. No one wanted to
shred the Constitution. Administration lawyers began formulating analyses when the Twin Towers and the Pentagon were still burning and the number of dead was still unknown. Everyone—at the White House, in Congress, at the CIA, at the Pentagon, in business and among the general public—believed correctly that al-Qaeda was plotting more attacks. Lawyers were caught up in an almost unbearable dilemma of being forced to make rulings, on the fly, that might deflect an unimaginably destructive second blow by al-Qaeda, but perhaps at the cost of sacrificing, if only for a time, certain of America’s founding principles. Those who believe such decisions would be easy, Goldsmith argued, are fooling themselves.

The huge volume of documents and other records that have been made public in the years after the decisions were reached do not expose reckless personalities who cavalierly issued life-and-death decisions, but rather, officials who were struggling to find a proper balance between national security and legal rights. Or, as Goldsmith said, “How aggressively to check the terrorist threat and whether and how far to push the law in doing so are rarely obvious, especially during blizzards of frightening threat reports, when one is blinded by ignorance and desperately worried about not doing enough.”

Even as the horrors of 9/11 receded in the undertow of memory, that desperate worry continued to transfix the Bush administration, which—whatever the final judgment of history about its tactics, successes, and failures may be—never wavered from its central focus of averting the next deadly terrorist assault that its members feared was on the horizon. The information contained in the daily threat matrix had not gone away. And there were constant reminders of the price that was paid on 9/11 for Washington’s failure to exercise greater vigilance amid the growing warnings of terrorist threats.

While Bush did not attend the memorial at Ground Zero on the second anniversary of the attacks, White House officials said that he was deeply affected by the hundreds of grieving children, both for their losses and for their bravery in standing before the crowds of mourners to recite the names of the dead. Many of them added heartrending personal messages: “You’re the ultimate father and I love you in my heart”; “I love you, Daddy, and I miss you a lot”; “My mother and my hero. We love you.”

The final speaker was Michele Stabile, who saved her father’s name, Michael Stabile, as the last she uttered. “I miss you, Daddy,” she said before stepping away from the microphone.

Then the sound of Taps filled the air.

•  •  •  

The following month, on the afternoon of October 6, 2003, an Air France flight landed at Dorval International Airport in Montreal. On board, Maher Arar, sickly and pale, stood up and made his way to the exit. After two years in a Syrian prison, he was back home.

Arar had just been released without advance notice, for no apparent reason. In truth, he had become a pawn in a game of international diplomacy. Syria had tried to curry favor with the United States—by providing intelligence on al-Qaeda and agreeing to imprison accused terrorists turned over by the Americans—in hopes it would help improve its relations with Washington.

But that optimism proved wrong. The administration did not temper its criticisms of Syria—Bush even characterized it in 2002 as part of an “axis of evil,” linking it to both Saddam’s Iraq and North Korea. As the administration continued its condemnations, a judgment was made at the highest reaches of the Syrian government to limit its cooperation. While Arar was a Canadian, he had been delivered by the Americans, through Jordan. Syria had no interest in holding him and no reward if it did. And so, he was released.

Arar stepped off the plane just after 12:30 and was taken to the airport’s secure arrivals area. Waiting for him was his wife, Monia Mazigh, who had spent the last two years pleading with the Canadian government, the press, lawyers, anyone she thought could help rescue her husband.

She saw that he was very thin, his black sweater drooping over his body. He looked terrified. Mazigh approached him.

“You are safe now,” she whispered in his ear.

He was taken to an airport lounge and was stunned to see a swarm of reporters waiting for him. He decided to make a short statement.

“I’m very glad to get back home,” he said softly. “I’m so excited to see my family again.”

The delicacy of his statement prompted Mazigh to add some words of her own. “This has been a terrible tragedy for our family,” she said. “This is just the beginning of justice.”

It was indeed. The Canadian public pressured the government to explain how and why Arar had been sent to Syria by the United States. Much of the anger was directed at the Canadian intelligence agency and the Mounties, based on suspicions that the two groups had worked in concert with the Americans in the Arar case. The Canadian government formed an independent investigative commission. After two years of hearings and document reviews, the group
concluded that no evidence had ever existed to suggest that Arar constituted a threat—he was not a member of al-Qaeda, never was, and had no connections at all to Islamic extremists. In 2007, Canada paid him a settlement of $10 million and issued a formal expression of regret.

“On behalf of the Government of Canada, I wish to apologize to you, Monia Mazigh and your family for any role Canadian officials may have played in the terrible ordeal that all of you experienced in 2002 and 2003,” Stephen Harper, the Canadian prime minister, wrote in the letter to Arar. “I sincerely hope that these words and actions will assist you and your family in your efforts to begin a new and hopeful chapter in your lives.”

The United States, which had played a far more significant role in Arar’s deportation, has refused to apologize or acknowledge any error. Arar sued, but the Bush administration successfully convinced the courts that its officials could not be held liable for his injuries on the grounds that the case involved classified national security issues.

While Washington has never acknowledged the full truth, at least one of the reasons behind Arar’s deportation was a lie. Shortly after Arar had been sent to Syria, William Graham, Canada’s minister of foreign affairs, repeatedly asked Colin Powell for details about how the United States came to deport a Canadian citizen to the Middle East. Each time, Powell assured him that Canadian officials had provided the intelligence leading to Arar’s removal and had authorized it. Graham launched his own inquiry to identify the culprits in his government, without success. Then, on December 1, 2003, just two months after Arar’s return, he learned why his search failed. Powell called him and revealed that others in the administration had misled him about the evidence on Arar; none of the information had been provided by Canada, and no one in Ottawa had authorized the departation.

The sham evidence against Arar came primarily from two sources—Ahmad El-Maati, the man with the map; and Abdullah Almalki, whom Canadian intelligence had seen have lunch with Arar. Under torture, El-Maati stated that both Arar and Almalki were part of al-Qaeda; subsequently, Almalki acknowledged to his abusers that he knew Arar, proof, supposedly, of an al-Qaeda connection.

The Syrians also released Almalki and El-Maati. El-Maati, who was both a Canadian and an Egyptian citizen, was sent to Cairo in 2002 after being detained in Syria for three months. There, he was tortured again. He was released in January 2004 and flew back home. For years, he remained unable to work and lived in an apartment with his mother.

In July 2004, a Syrian court cleared Almalki of any connection to terrorism; he also returned to Canada. Years after the ordeal ended, Almalki still experienced severe pain from the torture, once collapsing on his driveway screaming while passing a basketball to one of his children.

Canada appointed another independent commission to investigate the cases of El-Maati and Almalki. Following that inquiry, in 2009, the House of Commons voted to offer an official apology and an undisclosed settlement to both men.

The Canadian government never did so.

•  •  •  

Almost five years after the CIA snatched him off a Milan street, Abu Omar was released from an Egyptian prison when a Cairo court found the allegation against him to be unfounded. He did not return to Italy, where he still faced arrest on terrorism charges.

Five days after the cleric was freed, Armando Spataro, deputy chief prosecutor in Milan, secured the indictment of twenty-six Americans who were directly involved in the kidnapping. In 2010, after being tried in absentia, twenty-three of them were convicted on the charges by an Italian judge. Robert Lady—the CIA station chief in Milan who had vigorously opposed the idea of abducting an Italian resident—was sentenced to eight years in prison.

He and the officials convicted in the case are now considered fugitives by the Italian government.