The Road to the Brig; after 9/11, Justice and Defense Fought over How to Deal with Suspected Terrorists. How a New System Was Hatched

Article excerpt

Byline: Michael Isikoff and Daniel Klaidman, Graphic by Meredith Sadin

In September 2002, just before the first anniversary of the September 11 attacks, a group of senior Bush administration officials convened for a secret videoconference to make a difficult decision: what to do with six Americans suspected of conspiring with Al Qaeda. The Yemeni-born men from Lackawanna, N.Y., were accused of training at a camp in Afghanistan, where some had met Osama bin Laden. The president's men were divided. For Dick Cheney and his ally, Donald Rumsfeld, the answer was simple: the accused men should be locked up indefinitely as "enemy combatants," and thrown into a military brig with no right to trial or even to see a lawyer. That's what authorities had done with two other Americans, Yaser Hamdi and Jose Padilla. "They are the enemy, and they're right here in the country," Cheney argued, according to a participant. But others were hesitant to take the extraordinary step of stripping the men of their rights, especially because there was no evidence that they had actually carried out any terrorist acts. Instead, John Ashcroft insisted he could bring a tough criminal case against them for providing "material support" to Al Qaeda.

On that day, at least, the attorney general won the debate, and the Lackawanna Six eventually pleaded guilty. It wasn't the first time, or the last, that top Bush officials would spar over such weighty legal issues. For government lawyers, the detention of foreign fighters at Guantanamo Bay, Cuba, hadn't been a tough legal call. After all, they were soldiers fighting on behalf of a hostile enemy, captured on the battlefield. But the administration hadn't anticipated that U.S. citizens might occasionally turn up in the mix. In the months after 9/11 there were fierce debates--and even shouting matches--inside the White House over the treatment of Americans with suspected Qaeda ties. On one side, Ashcroft, perhaps in part protecting his turf, argued in favor of letting the criminal-justice system work, and warned that the White House had to be mindful of public opinion and a potentially wary Supreme Court. On the other, Cheney and Rumsfeld argued that in time of war there are few limits on what a president can do to protect the country. "There have been some very intense disagreements," says a senior law-enforcement official. "It has been a hard-fought war."

It's far from over. Officials say they eventually settled on "informal" rules to decide whether a detained American should be thrown into the brig or brought to trial. But Hamdi and Padilla have challenged their enemy-combatant status. Next week the Supreme Court will hear their arguments, in what could be the most profound legal issue in the terror war: whether the president can lock up American citizens suspected of terrorist links indefinitely, without charges. This week the court will also hear a case to decide if foreign detainees at Guantanamo have any legal rights.

In a speech earlier this year, White House counsel Alberto Gonzales tried to reassure critics, saying the White House had an "elaborate" and "painstaking" system to identify enemy combatants. But it didn't start out that way. …