Blank Spots on the Map Page 27

  In March 2004, Donald Rumsfeld won a bureaucratic turf battle over who would lead the war on terror, which had at that point been spearheaded by the CIA. The result was the 2004 Unified Command Plan, which designated the Special Operations Command as the “lead combatant commander for planning, synchronizing, and as directed, executing global operations” in the war on terror. In October 2004, SOCOM got even more power: An amendment to the defense authorization bill granted Special Forces the ability to recruit foreign paramilitaries, pay money to intelligence sources, and procure equipment and weapons from foreigners, powers only the CIA had previously held. In January 2006, the Joint Special Operations Command (which controls the black units) went from being a position for a two-star general to being a position for a three-star general.

  Like the Justice Department’s creation of “unlawful combatants” and the CIA’s black site program, the newfound leadership role for the Special Forces community further removed the war on terror from democratic oversight and expanded the “we can do whatever we want” ethos of the black site program.

  Unlike the CIA, the military doesn’t do covert operations. The military does “clandestine” operations. On paper, the distinction is supposed to be the following: defined by law, “covert” actions are designed “to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly.” In other words, covert operations are operations whose sponsors are secret; the operation itself may be secret (such as bugging a foreign embassy) or out in the open (a propaganda campaign). In contrast, “clandestine” operations’ details might be secret, but the existence of the operations wouldn’t be denied after the fact (a hostage rescue, for example).

  But there’s another, more poignant, difference between the two: Covert actions require presidential findings before the action, and they have to be reported to Congress (a legacy of the Church and Pike hearings in the 1970s). Clandestine actions don’t. The legislation dates back to Iran-Contra.

  After the Iran-Contra scandal, Congress realized that they hadn’t anticipated the possibility of covert actions being conducted outside the intelligence community, which the 1974 Hughes-Ryan Amendment applied to. In the Intelligence Authorization Act of 1991, Congress tried to plug this loophole by making the covert action reporting requirements apply to “any department, agency, or entity of the United States Government,” including the military. There was, however, a significant exception built into the law: “Traditional . . . military activities or routine support to such activities” were exempted from the requirement. The conference committee report attached to the law describes “traditional” activities as including operations in “anticipation” of a military campaign. If a team of Navy SEALs, for example, infiltrated a country in order to disable its antiaircraft weapons in anticipation of a U.S.-led invasion, the mission wouldn’t meet the requirements of a covert action. There’s the rub: What does “anticipated” mean? Defense Department officials have left open the possibility that “anticipated” could mean “years in advance.”

  As the war on terror dragged on, the informal geography of the Afghan battlefield spread. Black sites, whose origins went back to a collection of shipping containers at Bagram, proliferated. The Salt Pit came first, then a black site in Thailand. Then the Dark Prison in Afghanistan, then sites in Poland and Romania. When the Eastern European sites closed in late 2005 after Human Rights Watch published their locations, the CIA created other black sites in locations that remain secret.

  The black site prison program—off-the-books detention centers housing “ghost” prisoners outside the Geneva Conventions and outside the purview of the Red Cross—went far beyond its battlefield origins. It spread to other parts of the intelligence community and military. At Camp Nama in Iraq’s Baghdad International Airport, a JSOC/CIA unit called Task Force 6-26 created a black site where Special Forces operatives abused ghost prisoners in a former Saddam Hussein torture chamber they called the Black Room. A sign at the camp read NO BLOOD, NO FOUL, a reference to an adage military units stationed there had developed: “If you don’t make them bleed, they can’t prosecute for it.” The Black Room was often the first place that a prisoner eventually bound for Abu Ghraib would be taken.

  But the black sites were far more than a geography of secret places, unmarked airplanes, ever-changing code names, and undisclosed locations. They set a chain of events in motion: to keep the “aggressive interrogations” continuing, the Bush administration abandoned the Geneva Conventions; to keep the rendition flights and the black sites out of court, the Justice Department made frequent use of the state secrets privilege. To “legalize” the torture techniques the CIA used against the prisoners in its secret program, the Bush administration produced the infamous August 2002 “torture memos.”

  When the torture techniques pioneered in the CIA black sites migrated to Guantánamo Bay and Iraq, and culminated with the photos from Abu Ghraib, Congress passed the McCain Amendment. After signing the bill into law, Bush looked into a camera and said that the new law would make it “clear to the world that this government does not torture.” In reality, it was quite the opposite. White was black.

  First, the bill provided CIA officers with a defense against being prosecuted for engaging in torture. Second, it allowed for the use of evidence obtained under torture against terror suspects at Guantánamo Bay. Third, it stripped Guantánamo prisoners of their right to make habeas corpus appeals in federal courts. And finally, when Bush signed the bill, he added a signing statement declaring that the law’s provisions would be interpreted “in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power.” In other words, the executive branch of government was claiming the right to ignore the law if it wanted to. The signing statement was the polite, legalistic version of the doctrine Khaled El-Masri had heard in the Salt Pit: “We are in Afghanistan, we can do whatever we want.” The difference was that this was out in the open; it had become the law.

  Almost a year later, something dramatic happened. On September 6, 2006, the Bush administration made a startling announcement: Fourteen “high-value” terror suspects held incommunicado in the CIA’s network of secret prisons were being transferred to Guantánamo Bay, including the likes of Khalid Sheikh Mohammed, Ramzi bin al-Shibh, and Abu Zubaida. It was the first public admission that black sites existed, although the president declined to go into details.

  Was this the end of the extraordinary rendition program? The black sites? The torture? Was this announcement an acknowledgment that the United States had been in violation of international laws and conventions and was now back on the right side of the law? No. Instead, it was the most aggressive declaration of the Salt Pit doctrine to date. The U.S. republic’s system of checking the power of the executive with the power of the Congress and judiciary was being directly attacked.

  A few months before Bush’s announcement, the Supreme Court ruled in the Hamdan decision that the military tribunals the Bush administration had sought to convene were illegal because they were at odds with both the Geneva Conventions and the Uniform Code of Military Justice. In Justice Breyer’s concurring opinion with the majority decision, he wrote, “Congress has denied the President the legislative authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary.” The executive needed congressional approval for its military commissions. Against the backdrop of a looming election, the executive decided to raise the stakes.

  In early 2006, law professor Mark Denbeaux undertook a comprehensive study, relying entirely on declassified Department of Defense documents, to describe the population of prisoners held at the controversial prison. His conclusions were stunning: Denbeaux found that 92 percent of the 517 p
risoners then at Guantánamo Bay had not been al-Qaeda fighters; of those men, 42 percent had no clear connection to al-Qaeda and 18 percent had no connection to either al-Qaeda or the Taliban. Moreover, 86 percent of the prisoners hadn’t even been captured by Americans: They had been brought to the U.S. military by bounty hunters in Afghanistan and Pakistan who’d been wooed by military advertisements exhorting potential freelancers, “Get wealth and power beyond your dreams. . . . You can receive millions of dollars helping the anti-Taliban forces catch al-Qaeda and Taliban murderers. . . . This is enough money to take care of your family, your village, your tribe for the rest of your life.”

  Denbeaux showed that not all the people at Gitmo were the “worst of the worst.” The vast majority seemed to be nobodies. Years earlier, a CIA analyst had reached the same conclusion. Unlike Denbeaux’s work, the CIA report’s inconvenient conclusions stayed secret.

  When the Bush administration announced its transfer of the fourteen “high-value” suspects from the CIA’s black sites to Guantánamo Bay, it added new urgency to the proposed Military Commissions Act. Khalid Sheikh Mohammed, Ramzi bin al-Shibh, and many of their cohorts were indeed the real thing: These men had no qualms about killing thousands of civilians to serve their twisted interests. Their transfer to Guantánamo Bay was a direct challenge to the legislature: “If you want to put Khalid Sheikh Mohammed on trial, you’ll have to authorize the military commissions.” Moreover, to put these men on trial, the legislature would have to retroactively “legalize” their disappearances, their incommunicado detention, the black sites, the waterboarding, and the other forms of torture they’d been subjected to. The evidence against this cadre was hopelessly tainted by the circumstances that they’d been held under: Putting Khalid Sheikh Mohammed on trial was only possible by using evidence gleaned through torture.

  The executive seemed to prevail. With a looming election, no one in Congress wanted to appear “soft on terrorism.” The Military Commissions Act passed the Senate by a vote of 65 to 34 and the House with 253 to 168 votes. On October 17, 2006, President Bush signed the bill into law. The black site policies, in effect, turned white.

  Almost invariably, covert operations are illegal. That’s why they’re covert operations. It’s rare for a president to acknowledge the existence, much less the contents, of a black program. And that was what made the Bush administration’s announcement terrifying for some. It would be naïve to think that the CIA hadn’t been in the business of torture for a long time, either explicitly, as was the case in Vietnam, or by proxy, as had been the case in Central America during the 1980s. But the American government had never explicitly claimed the right to disappear and torture people. The Salt Pit doctrine, “We can do whatever we want,” had migrated from being the war on terror’s deepest, darkest, most secret dungeon, formalizing informality to become the United States’ official and openly acknowledged modus operandi.

  Once again, the secret world won. Bringing the war on terror’s black geography into the light did not make it disappear. Instead, the secret world sculpted the surrounding state in its own image. Torture was now “legal.” The black sites stayed open. And once again, the border between the black and the white dissolved. Everything became gray. It was hard to tell where one world ended and the other began.

  Epilogue

  Back in Las Vegas, the day is passing. The late afternoon’s soft sunlight casts long red shadows on the airport tarmac, and the atmosphere’s hazy cocktail of heat, dust, and pollution lends a warm yellow cast to the landscape. The Janet planes, with their white airframes and red stripes, are coming home. One after another, the 737s taxi to their special terminal on the west side of the airport and slide into their parking places. A man pushes a rolling staircase up to the plane’s door, and a stewardess inside pops open the exit door. The day is over; the workers are going home. I’m watching the scene from my eighteenth-floor hotel room from about a mile away through the eyepiece of my telescope.

  One by one, workers file down the staircase, onto the asphalt, through a door-sized opening in the chain-link fence surrounding the terminal, and into the parking lot. Their faces are blurry from this distance, but I can get a sense of what they look like. An overweight man with an orange T-shirt and suspenders wearing a black baseball hat walks slowly, putting his full weight into each step as if it’s been a long day on the job. A young, thin man walks with a spring in his step to match his age. He’s wearing a black and white sports jersey, perhaps the away uniform of the Oakland Raiders, and carrying a backpack. A heavyset woman with a white blouse and a blue fanny pack looks like someone you’d see at Disneyland or Yosemite corralling a herd of laughing children on a long weekend. A group of three trim thirtysomething white men wearing baseball hats and carrying duffel bags over their shoulders walk through the gate and pause for a moment to talk to each other before walking off to their respective pickup trucks on the far ends of the enclosed parking lot.

  More than any other, this is the image I’ve returned to as I’ve thought about the secret world. This scene of hopeless banality. Sit outside a Wal-Mart during a shift change, and the scene would be more or less the same: Ordinary people slogging home after a day on the job.

  The black world has sculpted the United States in numerous ways. Creating secret geographies has meant erasing parts of the Constitution, creating blank spots in the law, institutionalizing dishonesty in the halls of government, handing sovereign powers—what used to be the unlimited power of monarchs over their subjects and territories—to the executive branch, making the nation’s economy dependent upon military spending, and turning our own history into a state secret.

  Since Congress passed the Central Intelligence Act of 1949, exempting the CIA from accounting for its expenditures, the black budget has expanded to fund a roughly $50 billion intelligence industry and significant parts of the military. The black budget created a “new normal,” institutionalized the notion that the public has no right to know how their government spends their money. Culturally, this “new normal” has become so ingrained that many people would be shocked to learn that the Constitution says quite explicitly that the government has to account for every dime of taxpayer money it spends. The “power of the purse,” which James Madison regarded as “the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure,” was meant to reside in Congress, the branch of government most inclined to represent the popular will. The rise of the black budget means that Congress, and the public, isn’t “read into” the federal budget. Each year, Congress, in a very real sense, signs off on an official lie.

  The black world’s historical geography shows that where black budgets manifest into a space, informal violence becomes the norm. Whether it’s the Air Force setting trenches of hazardous waste on fire at a black site in Nevada, or the CIA helping to assassinate a long line of inconvenient democratically elected leaders, from Mossadegh, through Lumumba to Allende, the black world creates a legal “nowhere” that nourishes the worst excesses of power. Oliver North would equate secrecy with legality when he testified that “we operated from the premise that everything we did do was legal.” “Those bastards can do whatever they want,” Stella Kasza had spit when asked about her dead husband. A few years later, an interrogator at a black site outside Kabul would tell rendition victim Khaled El-Masri, “We are in Afghanistan, we can do whatever we want.”

  Covert actions, secret programs, and unlawful yet state-sponsored violence, once revealed, have not just gone away. To expose the black world is not enough. Blank spots on maps have generated blank spots in the law. When the Air Force lied about the death of Judith Palya Loether’s father and the Supreme Court went along with the cover-up, the state secrets privilege made it possible for future administrations to keep their alleged crimes out of court by simply crying “national security.” The subsequen
t case history of the state secrets privilege reads like an encyclopedia of state malfeasance and cover-ups.

  When covert actions and classified programs become public, their revelation is often used to legitimize their profoundly troubling purposes, to sculpt the state in their own image. Revelations of secret prisons and torture over the long course of the war on terror gave rise to the McCain Amendment and the Military Commissions Act, which retroactively promised to “legalize” disappearances and torture. When revelations of domestic spying by the NSA came out in The New York Times, the Bush administration got Congress to rewrite the Foreign Intelligence Surveillance Act in order to legalize the clearly illegal program. In another example of how secret, illegal programs sculpted policy in their own image, the misdeeds of Iran-Contra became a blueprint for executive power in the twenty-first century, as Dick Cheney himself acknowledged one day to reporters on Air Force Two.

  But the black world and the hidden budgets that sustain it have changed American society in other, more subtle ways. At this moment, approximately four million people in the United States hold security clearances to work on classified projects. By way of contrast, the federal government employs approximately 1.8 million civilians in the white world. Each of those security-cleared workers spends their paychecks on clothes, housing, groceries, trips to Disneyland, restaurants, and all of the other things that people spend money on. This secondary spending, in turn, creates more jobs, an effect that economists call a “multiplier.”

  The black world, then, is much more than an archipelago of secret bases. It is a secret basis underlying much of the American economy. The black world, in other words, means jobs. Lots of jobs. Jobs for heavyset men in orange T-shirts and suspenders, for women wearing fanny packs, and for the supermarkets and movie theaters where workers stop to spend money on their way home from the job.