Table Of Content

( THE REMAKING OF AMERICAN JUSTICE <K \ i ERIC LICHTBLAU $26.95 U.S.n $32.00 Can, IN THE AFTERMATH OF 9/11, President Bush and his top advisors declared that the struggle against terrorism would be nothing less th&n a war—a new kind of war that would require new tactics, new tools, and a new mind-set. Bush’s Law is the unprecedented account of how the Bush administration employed its “war on terror” to mask the most radical remaking of American justice in generations. On orders from the highest levels of the administration, counterterrorism officials at the FBI, the NSA, and the CIA were asked to play roles they had never played before. But with that unprecedented power, administration officials butted up against— or disregarded altogether—the legal restrictions meant to safeguard Americans’ rights, as they gave legal sanction to covert programs and secret interrogation tactics, and swept up thousands of suspects in the drift net. Eric L.ichtblau, who has covered the Justice Department and national security issues for the duration of the Bush administration, details not only the development of the NSA’s warrantless wiretapping program—initiated by the vice president’s office in the weeks after 9/11— but also the intense pressure that the White House brought to bear on The New York Times to thwart his story on the program. Bush’s Law is an unparalleled and authoritative investigative report on the hidden internal struggles over secret programs and policies that tore at the constitutional fabric of the country and, ultimately, brought down an attorney general. Bush’s Law The Remaking of American Justice Eric Lichtblau PANTHEON BOOKS • NEW YORK CONTENTS Prologue IX One “This Thing Called the Constitution” 3 Two Collateral Damage 9 i Three “Don’t Embarrass the Bureau” IS Four Threats, Pronouncements, and the Media Wars JI3 Five Sworn to Secrecy T37 Six Blood on Our Hands 186 Seven High-Level Confirmation 212 Eight Swift-Boated (Round Two) 232 Nine A Loyal Bushie 264 Epilogue 301 Author’s Note 3 11 Notes 30 Index 335 PROLOGUE S tep by rickety step, the Justice Department prosecutor and the FBI agent climbed the beat-up ladder toward the roof of the old Turkish warehouse. They had been waiting weeks for this trip, all for the chance to get a glimpse of what lay across the sprawling field to the north of the warehouse. They needed a way up on the roof, so an American military officer and a translator accompa¬ nying them had slipped a few lira to a baker who occupied the floor below, getting him to let them up to the top via a side balcony. They used a rope and an old drainpipe to begin hoisting their way to the top. But they hadn’t counted on that rickety old ladder. A bolt clamping it to the wall was missing, and the ladder grew more wobbly with each step they took. “If this falls, we’re both going down,” Rick Convertdno, a pit bull of a prosecutor in Detroit, yelled to the FBI agent on the case, Mike Thomas, who was climbing a few rungs above him. Finally, they reached the top and stepped out onto the tar roof. Perched on the edge, they looked across a dirt road to survey their target off in the dis¬ tance: a massive Turkish air base, launching pad for American and British fighter planes in the heart of one of the world’s biggest Muslim nations. This was Incirlik Air Base, and this was what had brought them 5,700 miles in an improbable trek from an abandoned, run-down apartment in southwest Detroit to the fig-rich fields of Turkey. From his pocket, Convertino pulled out his copy of their map to the Holy Grail: a lined page from a day-planner filled with what, at first glance, could pass for a child’s idle scribbling. The markings were random, almost unintelligible—three sets of parallel lines, stick fig¬ ures, arrows, a crude airplane, and some circles, or maybe it was a peace symbol; who could really tell? The doodling had been found in that run-down Detroit apartment a few months earlier, less than a IX Prologue week after the September 11 attacks, as Thomas and five other federal agents had descended on the place in search of a Muslim man named Nabil al-Marabh. A onetime Boston cabbie, al-Marabh had once roomed with a known al Qaeda operative, and he himself was now number 27 on the FBI’s terrorist watch list. For years, the FBI had taken a wait-and-see attitude with hundreds of people like al-Marabh suspected of terrorist links, putting them on lists, compiling dossiers, occasionally monitoring their activities and wiretapping their phone calls, but rarely acting against them. Now, there was no longer time to wait. All leads, promising and improbable, had to be dusted off and scrubbed. The problem was that al-Marabh no longer lived at the apartment; his name was still on the mailbox on the duplex at 2653 Norman Street, but he was long gone to Chicago. Instead, the agents were greeted at the front door by a Moroccan man, Karim Koubriti, wear¬ ing just boxer shorts and a T-shirt. Thomas showed Koubriti a photo of al-Marabh. “He doesn’t live here,” Koubriti, an Arabic speaker, said in halting English. No, he’d never seen him before. Thomas asked to see some ID. Koubriti had left it upstairs in the apartment. As he turned to go upstairs, Thomas and another agent asked to go upstairs with him. There, they found two other apparent transients sleeping on the floor. The men had little in the way of furniture—no beds, a few coffee tables and an old TV, some clothes strewn in garbage bags on the floor—but what they did have alarmed the FBI. Scattered through the place, Thomas and his colleagues found fraudulent IDs, two Sky Chef employee badges for access to the Detroit airport, dozens and dozens of audiotapes featuring fundamentalist Islamic teachings, a videotape with American landmarks like Disneyland and Las Vegas, and, inside a suitcase in a back closet, that small, mysterious day- planner with the odd markings inside it. One sketch bore writing in Arabic at the top, later translated as The American Air Base in Tiirkey Under the Leadership of Defense Minister,” and another said simply: “Queen Alia, Jordan.” What did it all mean? The Muslim men themselves, quickly hand¬ cuffed and facing criminal charges for document fraud, had no clear links to any known terrorist groups, but investigators were soon con¬ vinced they had stumbled onto what amounted to a terrorist sleeper cell. The hardest evidence linking the men to any real plot seemed to x Prologue be the sketches themselves. Military intelligence officials were brought in to help decipher them. Some Air Force officers in Turkey were con¬ vinced: one sketch, they said, must be a blueprint for a possible attack on the air base. They could even guess which rooftop had served as the vantage point for the drawing. So serious was the threat that there was talk of changing the American flight patterns at the Turkish air base. Other military and intelligence analysts weren’t so sure; some doubters considered the drawings unprofessional at best, a joke at worst. Now, Convertino and Thomas were there on the roof of the Turkish ware¬ house to find out for themselves. An Air Force intelligence officer accompanying them drew out his own copy of the sketch and peered into his binoculars. It was a bright, clear day, and fighter planes were readying for take-off in the distance. Whoever had drawn the sketch, the officer surmised, could have stood right here at this spot. Convertino and Thomas gathered around him at rapt attention. “Look, here,” the officer said, gesturing to a rectan¬ gular figure in the bottom left-hand corner of the page with what looked like a crudely drawn airplane coming out of it. “That’s the hardened bunker.” The dotted lines were the runway, and the plane¬ like figures in the drawing were the AWACS, the military refueling tankers and fighter jets readying for take-off in sequence. “There’s the flight pattern,” he said. As if to prove the theory, a jet took off from the air base as he spoke. Someone remarked how easy it would be for a ter¬ rorist to get a clean shot at a plane using a SAM—a shoulder-fired, surface-to-air missile popular among militant groups. Just a year before, Islamists in a tiny dinghy had managed to kill seventeen sailors on the USS Cole off the coast of Yemen. Were they now looking at the plans for another attack on another unprotected target? Convertino grabbed the binoculars to look for himself. Just a few months earlier, before the attacks of 9/11, he was setting his sights on a University of Michigan basketball booster in a straightforward graft- and-corruption case that would ultimately net NBA star Chris Webber on perjury charges. Now, Convertino was chasing al Qaeda on a Turk¬ ish rooftop. As he gazed through the binoculars, he shook his head at the similarities between the air base in front of him and the drawing that appeared to mimic it so closely. Then Thomas took a turn. “Holy shit, this is it,” the FBI agent finally remarked as he put down the binoculars. “This is a terrorist sketch. This is a case sketch.” XI Prologue This wasn’t the kind of stuff they taught at the Case Western Law School, where Convertino first cut his teeth on the law, or even at Jus¬ tice Department training seminars. There were no courses on deci¬ phering suspected terrorist case sketchings or stopping the next big al Qaeda attack. Prosecutors didn’t usually fly off to foreign countries with military escorts to divine the motives and targets of would-be ter¬ rorists. Then again, this was a new style of American justice—more agile, more aggressive, more muscular—and everyone had new roles to learn, and quickly. President George W. Bush and his generals in this new war at the White House, the Justice Department, and the Penta¬ gon envisioned a wholly new approach to defeating the grave threat of terrorism. No longer, they believed, could America afford to wait on its heels for another terrorist attack to occur, and no longer could they be bound by the arcane customs that they believed had paralyzed counterterrorism agents for so long. They were now on a wartime footing, a permanent state of emergency. The government had to strike first as part of what Bush and his trusted White House counsel, Alberto Gonzales, liked to call “the new paradigm” of the global war on terror. This was a new kind of war, and Convertino and Thomas were among its many foot soldiers. This war would require different tactics, different tools, and a dif¬ ferent mindset in what would amount to the most radical remaking of America’s notion of justice in generations. What Woodrow Wilson did in going after the socialists and anarchists, what J. Edgar Hoover did in going after communists, what Bobby Kennedy did in going after orga¬ nized crime mob figures, Bush and his inner circle would now do in training the sights of the American government on those suspected of aiding the enemy known as al Qaeda. There was a new ethos at work, and it relied at its core on smashing walls—walls that had failed to stop the enemy from storming the country on 9/11; walls that had been erected in a bygone “don’t tread on me” era to protect the American people from the powerful reach of its own government. Now, countert¬ errorism agents from the National Security Agency, the CIA, and the FBI would be allowed to go places and do things they had never done before in the quest to stop the next attack. Lawyers would give legal sanction to covert programs and secret interrogation tactics unimagin¬ able just a few months earlier. And the drift net of government would sweep up thousands of suspects—some real, many imagined—in its tide. The walls had come crashing down. XII Prologue As they stood on the rooftop scouring the case sketching, Con- vertino and Thomas knew nothing about many of the bold and auda¬ cious new tactics at play in attacking terrorism. This was a war planned in secret at the highest reaches of the Bush administration, with a go- it-alone muscularity that relied at its core on a broad, omnipotent reading of the president’s wartime authority. There was little room for the checks and balances so inherent in American government, and many of the key decisions and strategies were hidden not only from Congress, the courts, the American public, and international allies, but , even from many of the senior counterterrorism officials in Bush’s administration who were charged with carrying out the new plan. What the prosecutor did know as he and his colleagues tried to piece together the mystery of the rooftop etchings was that the stakes in this case were enormous. This was to be the first terrorism prosecu¬ tion after the September 11 attacks, the first real test of how and whether the “new paradigm” fit into the constraints of the old legal system. This was a case already gamering attention from the highest levels. Bush himself had already hailed the arrests of the North African men in Detroit as one of several critical busts that had “thwarted ter¬ rorists,” and his powerful and press-sawy attorney general, John Ashcroft, had told reporters, to the head-shaking of even his own befuddled investigators, that the men were suspected of having advance knowledge of the attacks on 9/11. Indeed, within a few months of the rooftop trip, with the vague outlines of the mysterious sketch now seemingly becoming clearer to the government, the Justice Department would announce major terrorism indictments against the three apartment-dwellers and a fourth Muslim man, producing a flood of headlines around the country about a major break in the war on ter¬ ror. Policy-makers in Washington took proud notice. “For what it’s worth,” a Justice Department supervisor in Washington e-mailed the prosecution team in Detroit after the national publicity blitz, “the higher-ups in D.C. are pleased.” But soon enough, the afterglow of the headlines would turn dark. The court case collapsed, becoming so rife with problems that the Jus¬ tice Department itself took the unheard-of step of moving to have its own prosecution against the “terror cell” thrown out of court. In a jus¬ tice system designed at its best to produce clarity and finality, the case did just the opposite: what began in the view of Bush and Ashcroft as a slam dunk case against a terrorist sleeper cell ended with only linger- XIII Prologue ing questions and doubts. The sketch showing a hardened bunker at the Turkish air base? The Justice Department was forced to conclude that it might just as easily have been a crude map of the Middle East doodled by a mentally ill man. The anti-American hate speech found on some of the audiotapes? Possibly just an old children’s song in Ara¬ bic about a duck. And that videotape showing terrorist targets in Las Vegas and Disneyland might have been filmed by a tourist from Tunisia who wanted a cheery reminder of his travels. Some agents at the FBI remained convinced: a real plot had been scuttled, and legitimate terrorists had gotten away. The terrorist case sketches, they insisted, were just that: case sketches. But in the end, the only thing certain about the muddled case was this: the system of jus¬ tice that Americans had come to expect had broken down badly. The new “preemptive” intelligence mindset and the old, time-tested judi¬ cial one had collided with disastrous results. Just who was to blame would be hotly debated for years. Ashcroft himself was reprimanded for unfairly coloring the case through his improper public comments, not once but twice. Officials in Washington had lifted language for the indictment straight from a scholarly article on Islamic radicalism. The Air Force officer who led the rooftop expedition began to have doubts about what the supposed terrorist sketch actually represented. Pho¬ tographs and evidence that the judge said should have been handed over to the defense—evidence that might have cast doubt on their guilt and that pointed up divisions with the government about the strength of the evidence—were never turned over, and the rights of the defen¬ dants to get a fair trial were cast in grave jeopardy. Convertino, the star prosecutor, and a State Department witness would be indicted on perjury charges, facing prison time over allega¬ tions that they had intentionally concealed evidence from the jury and lied about it. In a prosecution that everyone from the White House on down wanted so badly to win, Convertino was depicted as a rogue prosecutor who pushed too hard to win and cut too many corners. His indictment, Convertino charged in a lawsuit of his own against the government, was the Bush administration’s bitter payback against him for bucking up against his supervisors in Washington and exposing just how badly this new war on terror was being mismanaged. There was blame to go around. The government had turned on itself, with the prosecutor now the prosecuted. And a case that began on a wobbly lad- XIV