Table Of Content( THE REMAKING OF AMERICAN JUSTICE
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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
