Bush's Law: The Remaking of American Justice after 9/11 by Eric Lichtblau

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Table of Contents

Read an Excerpt

"This Thing Called the Constitution"

Washington is a town in love with its acronyms. In the days of bedlam that followed the attacks of September 11, 2001, none was more important than SIOC, the emergency command center at the FBI's headquarters. It was there, amid a tangled web of sixty miles of fiber-optic cables, 225 computer terminals, and enough secure video monitors to stage an episode of the TV thriller 24, that the Bush administration's top intelligence and law enforcement officials collected minute-by-minute updates and steeled themselves for what all in the room thought certain would be a "second wave" of terrorist attacks. But it was there too that a onetime Wall Street executive who ran the nation's immigration service was the first to ask an unpopular question that day that would resonate for years to come inside the Bush White House and out: How far are we willing to stretch and bend the Constitution in hopes of deterring another attack? And at what cost to the fabric of the country?

Even before the last legs had given out on the World Trade Center's Twin Towers on that horrific day, the FBI had begun the monumental task of piecing together what had happened. Who were the jihadists who had carried out the audacious attacks? How had they operated so invisibly, and with such impunity, on American soil? Who had helped them? And, most urgently, what other plots were already underway? There was no better law enforcement agency in the world than the FBI at solving a crime, and this investigation-code-named Penttbom-would be the biggest in its history. Thousands of agents, working more mundane tasks like drug seizures and white-collarcrime on September 10, were now dispatched to the case as newly deputized counterterrorism sleuths. Investigators would be helped by a few early breaks: a piece of Mohamed Atta's luggage that didn't make it onto Flight 11 held a treasure trove of detailed preparations for the hijackings, and a search of a rental car parked at Logan Airport produced flight manuals and other potentially important bits of evidence. With 4,400 planes rerouted within hours, FBI agents were already scouring leads and eyeing other possible plotters. President Bush had made it clear to his war team: there could not be another attack, not on his watch. "Don't ever let this happen again," Bush told his attorney general, John Ashcroft, at an emergency White House meeting the day after the attacks.

For Ashcroft, an unlikely general in the war on terrorism who had once railed against the abusive reach of Big Brother government in his days in the Senate, the edict would become a guiding mantra. The rules of engagement had changed, Ashcroft told his aides, and that meant no lead, no possible plot, no strand of intelligence, however tangential or improbable it might seem, could go unchecked. The two suspicious Muslims found on the train to Texas with $5,000 in cash and box cutters; those immigrants in the dilapidated Detroit apartment found with the odd scribbling in the day-planner; the Saudi radiologist in San Antonio with the same last name as one of the hijackers; the homeless Egyptian man arrested for trespassing at a 7- Eleven in Baltimore-all were eyed as the next possible Mohamed Atta in the days and weeks immediately after 9/11. With planes grounded for days and the country shaken to its core, the investigation was playing out in the most public of ways, each step chronicled on CNN. The public manhunt was on.

Sub rosa, however, investigators were already employing unorthodox, push-the-limits tactics in those early days that would not become publicly known, even in the exhaustive, 567-page report of the 9/11 Commission three years later. The National Security Agency, in what amounted to a pilot project for a much bigger and more controversial exercise, would begin intercepting American calls and e-mails to and from Afghanistan, home of the Taliban, in an effort to identify al Qaeda's communications. Some fifty postal inspectors would begin the "enormous task" of "sorting through the outbound international mail" to look for possible clues to terrorist activity, according to an internal FBI report in Maryland prepared two weeks after the September 11 attacks but never made public. The FBI, through the grudging cooperation of library managers, would "mirror" ten computers in suburban Washington believed to have been used by two of the hijackers. And then there was this: "All fugitives of Arab descent," the FBI advised, "have been made a priority for capture, federally and locally."

These were the kinds of over-the-top tactics that troubled James Ziglar, the commissioner of the Immigration and Naturalization Service, as he sat at SIOC on 9/11 just hours after the attacks. With the government caught flat-footed by the attacks on the World Trade Center and the Pentagon, no one doubted the need to mobilize at breakneck speed against the next terrorist attack. But as Ziglar saw it, there was a right way to approach the problem and a wrong way. Ziglar considered himself a "Goldwater conservative"; he liked to quote the late Arizona senator's famous screeds in defense of individual rights, and he swore by his maxim that "freedom depends on effective restraints against the accumulation of power in a single authority." An affable Southerner, Ziglar had worn many hats in a long career in both the private and public sectors: Supreme Court clerk, Wall Street investment banker, white-collar lawyer, congressional aide, and Senate sergeant-at-arms. But as he sat in SIOC on 9/11, none cast a bigger shadow for him than his role as a young aide in Richard Nixon's Justice Department in the office with the Orwellian name of Internal Security. The post offered Ziglar a window into the abuses of the 1960s and 1970s, a time when the FBI monitored Vietnam protesters, kept secret dossiers on some fifty thousand American citizens, and harassed political activists like John Lennon and Martin Luther King Jr. under the guise of ferreting out spies and subversives.

As he sat at the executive conference table in SIOC and listened to the nation's top cops plan a crackdown of their own, Ziglar couldn't help but think of the practices that had become so pervasive three decades earlier. Hours after the attacks, Bush's senior law enforcement aides were talking about widespread sweeps in heavily Muslim neighborhoods like Dearborn, Michigan, essentially knocking door-to-door to look for information on the next plot without any real nexus to terrorism or wrongdoing. To Ziglar, the tactic smacked of ethnic-profiling of the worst kind, but his concerns went beyond mere abstract ideology. Not only would it hurt relations with American Muslims-the very people the FBI would need as informants in this new war on

terror-but it would mean an enormous drain of resources at the already strapped INS, resources that he felt could be better spent plugging the kinds of holes that officials would learn had allowed two of 9/11 hijackers to enter the country under their real names without even being watch-listed by the CIA. If there was specific evidence

suggesting someone had information about terrorism, he was all in favor of going after it and going after it hard. But neighborhood-by- neighborhood sweeps and arrests? That troubled him. As David Ayres, Ashcroft's longtime advisor and powerful chief of staff, was planning a course of action, Ziglar squirmed in his seat. Finally, he broke in.

"I know you're not a lawyer," Ziglar told Ayres bluntly, "but we do have this thing called the Constitution."

The table grew quiet, faces tightening around it, as Ziglar began a brief but passionate discourse on the history of American colonialism under British rule. "What you're suggesting is like the king executing general warrants on the population," he continued. "That's what the king would do to find the colonials in rebellion against the crown." The idea of wide-ranging sweeps to look for Muslim subversives and extremists, Ziglar said, "is a violation of the Constitution, and I'm not going to be part of it."

Ziglar paused. "The INS won't be involved," he finally concluded.

So there it was: the first shot across the bow in the administration's hours-old war on terror, and it had come not from one of the administration's traditional adversaries-the ACLU, the "liberal" media, or some militant Islamist firebrand-but from one of the artillery men in the fight. Ziglar's broadside won him few friends in the room. Eyes rolled, heads shook in amazement. A few senior FBI officials huddled afterward, out of earshot of Ziglar. They were chagrined by a performance that they saw as both condescending and ill-advised at the very moment when the country should be pulling together; even more remarkable, several felt, was that it had come from a man in the job only two months as head of a second-tier law enforcement agency that was widely viewed, with some justification, as dysfunctional and poorly equipped to protect the country's porous borders.

"Who does this asshole think he is?" one senior FBI official grumbled to a colleague minutes after Ziglar's solitary stand. "As if he's the only who cares about the Bill of Rights?"

The Constitution would be a constant frame of reference in the fight, a talisman of sorts that people on all sides of the simmering debate could grab on to. Which side of it were you on? Were you for upholding it, or tearing it down? Were you willing to use the broad commander-in-chief powers it granted the president under Article II of the Constitution to defend Americans from another horrific attack, or would you cling to the notions of individual liberties, due process, and prohibition of unreasonable search and seizure spelled out in the Bill of Rights? And what about the "coequal" branches of government: What role if any would Congress and the courts have as a check on the commander-in-chief? Most important, could all these tensions coexist? Was there a middle ground? For the architects of this new war, there was a constant drumbeat: the rule of law still had to be followed, they said, but just what those rules really meant was often malleable, subject to twisting, flexing, and reinterpreting so long as the tactics were justified to stop another attack. "Think outside the box, but not outside the Constitution," Ashcroft would often tell his senior aides. Some of his listeners took it literally; for others, the mantra came with more of a wink and a nod.

For the Bush war team leading the fight-men like Alberto Gonzales at the White House, Donald Rumsfeld at the Pentagon, Michael Hayden at NSA, Robert Mueller at the FBI, Ashcroft at the Justice Department, David Addington in the vice president's office, and of course Dick Cheney himself-this was not a time to stand on tired conventions. The threat was now all too real. They had seen the carnage up close and felt the burning rage of a nation attacked. They had heard the cold, calm fear in the final words of Barbara Olson, a conservative commentator who was a friend to many in the administration, as she made two cell phone calls to her husband, Solicitor General Ted Olson, from Flight 11 to tell him that her plane had been hijacked by men armed with knives and box cutters. They saw it in the fateful last steps of John O'Neill, a top terrorism official at the FBI who became head of security at the World Trade Center, only to die on his second day on the job racing back into the building to try to rescue survivors. They heard it in the hate-filled rhetoric of Osama bin Laden, who had declared in a religious fatwa issued three years before the 9/11 attacks that it was the "individual duty of every Muslim" to kill all Americans.

The images were powerful, and they gave rise to a wholesale and radical rethinking of how the government protected itself and the country from another attack. The rules of engagement were often unclear, but the agenda was not: "Don't ever let this happen again," Bush had implored. With the country awash in a unifying zeitgeist of shock and outrage, Bush captured the mood of the country-and saw his poll numbers soar-as he donned a firefighter's helmet at Ground Zero days after the attacks and climbed atop a wrecked fire truck to stand arm in arm with the rescue workers clearing the rubble. It was a poignant, powerful moment, with Bush doing what he did best: connecting with people on a personal, heartfelt, gut-check level. "I can hear you," Bush told the thronged workers so desperate for hope and inspiration. "The rest of the world hears you, and the people who knocked down these buildings will hear all of us soon."

The pledge from Bush and his top advisors to do everything in their power-and everything under the law-to stop another attack was a strong tonic for an American public anxious for redemption. It would spur the largest mobilization of law enforcement resources in the country's history, and it would lead Congress, just five weeks after the attacks, to pass a dense, 342-page package of sweeping counterterrorism measures known as the USA Patriot Act, a smorgasbord of a bill pushed so urgently by Ashcroft and the administration that few lawmakers who voted for it had time to read its fundamental reworking of the law, much less understand it.

With the shackles now off, agents at home and abroad would look for the faintest whiff of terrorism, in suspected sleeper cells from the jails of Los Angeles to the quarry fields of Oregon to the beaches of Miami, in an effort to stop the terrorists before they could hit again. Government informants, many with criminal histories of their own, would alert the FBI to any possible plotters and take credit for launching aggressive sting operations that bordered on entrapment. Portions of the Geneva Conventions governing the treatment of war prisoners would be deemed "quaint" and "obsolete," in the words of Alberto Gonzales. Hundreds of suspected Taliban sympathizers plucked from the battlefields of Afghanistan would be captured and jailed for years in the naval base at Guantánamo Bay, only to be returned to their home countries after being cleared of terrorist ties. CIA officers would kidnap suspects from the streets of Europe-some with real terrorist ties, others simply with the misfortune of having the wrong Arab-sounding names-and whisk them away on secret planes to face secret interrogations at the hands of foreign intelligence services. Those al Qaeda operatives who were kept in the CIA's own secret prisons faced "enhanced" interrogation measures approved at the highest levels of the Bush administration, things like water- boarding, a technique used by some of the most brutal regimes in history to make a prisoner fear he's drowning. Inside the United States, out-of-status immigrants with no known terrorist ties would be held for months in American facilities, often without access to lawyers or even any record of their confinement or the charges against them. And dozens of American citizens would be jailed for weeks or months as "material witnesses" to possible acts of terrorism after investigators were unable to present evidence they had actually committed a crime.