Editor's note: This week, Salon is publishing selected scenes from "After," Steven Brill's definitive, deeply revealing book about how America has changed since the national trauma of Sept. 11. Brill, who started his career as an investigative reporter before becoming a media entrepreneur (the American Lawyer, Court TV, Brill's Content), draws from interviews with more than 300 people, as well as court filings, internal summaries of high-level government meetings, and other documents to create his portrait of a nation struggling to redefine itself while holding on to its fundamental values. "After" is told through the eyes of a wide range of powerful and unsung people, from Attorney General John Ashcroft to ACLU executive director Anthony Romero, from a World Trade Center widow to the attorney for John Walker Lindh, from lobbyists in Washington to a Silicon Valley entrepreneur whose company makes machines that detect bombs in luggage. Chronicling their stories on a nearly day-by-day basis, "After," which will be published in April, is the most sweeping, yet detailed, account of what Brill calls "the September 12 era." It's a "towering achievement," in the words of New York magazine's Michael Wolff, in which "the granular becomes epic."
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By Steven Brill
March 31, 2003 | Friday, September 21, 2001
At about 2:00 A.M., the airline lobbyists were still pouring drinks for Tom DeLay in his Majority Whip's office at the Capitol. They had stayed since Thursday night to make sure the congressional staff didn't screw anything up in their write-up of the airline bailout bill. (DeLay declined to be interviewed. His communications director, Stuart Roy, who was not there, confirms that DeLay was in his office with a group of lobbyists but does not know whether he was drinking, although he concedes that "it is possible he had a glass or two of red wine.")
Among those there was Will Ris, American Airlines's man in Washington. American's political action committee (to which Ris personally donated $5,000 annually in recent years) had been a steady contributor to DeLay's campaigns and to DeLay's own political action committee, a fund he was known to use obsessively to promote the conservative Republican cause and to keep control over his House colleagues by doling out money to their campaigns as long as they follow his lead.
The PAC of Continental Airlines, which was represented that early morning by its top lobbyist, Rebecca Cox, was also a DeLay contributor. Cox, however, had another ticket to the room: She's the wife of Christopher Cox, a Republican House colleague of DeLay's.
In fact, except for D. Scott Yohe from Delta Air Lines, everyone else in the Majority Whip's office, including two staffers from the Air Transport Association and one lobbyist from United Airlines, were direct or indirect contributors to DeLay. But the man with the best connection was Continental lobbyist Steven Hart, the senior partner at Williams & Jensen, one of Washington's two or three most connected lobbying firms. Hart was DeLay's personal lawyer. And he liked to tell clients (and was not ashamed to tell a reporter) that he did DeLay's personal legal work (as well as that of several other congressmen for free as a "loss leader." (DeLay communications director Roy promised to check with DeLay about whether Hart does free legal work for him, but then did not call back or return subsequent calls.)
By 3:00 in the morning, the group was wondering where the draft was. Then the phone rang. It was a Republican staffer reporting that there was a problem. It seemed that Senators Fritz Hollings of South Carolina and Robert Byrd of West Virginia were insisting that as a condition of the bailout, the airlines had to be kept from reducing service on any routes. Hollings, the chairman of the Transportation Committee, and Byrd, the chairman of the Appropriations Committee, were key players; and because they came from small states that had no major airline hubs, the issue of reduced service had long been a priority they shared. Everyone thought the issue had already been worked out with some language in the bill requiring the Secretary of Transportation to review any proposed reductions carefully, or some such thing. Now, the two Democrats were insisting on something with teeth. The whole bill was in jeopardy, and with the airlines' insurance set to expire Monday without a bill, something had to be signed this weekend -- which at 3:00 A.M. on Friday was fast approaching. If not, all the airlines might be grounded.
"You've got to do something, Tom," Hart said to his pro bono client.
"Please, Tom, go up there and shut them down," added one of the others, referring to the deadlocked staffers in a conference room a floor above.
DeLay smiled. "Shut them down, huh? Okay." Whereupon he put his drink down, got up, went upstairs to the conference room, flung open the door, and said, "Gentlemen, this meeting is over. Tell your boss," he added, looking at the top staffer for Hollings, "that this is the bill. Now get out of here. Now!"
Minutes later he was back downstairs with his drinking buddies. "Okay, what's next," he asked with a grin.
That settled, a group of other staffers drafting the more essential elements of the airline bailout bill-- the financial conditions and the provisions for a fund to compensate the victims of the September 11 attacks -- began preparing it for a final vote by both chambers a few hours later, when the House would vote for it 356-54 and the Senate 96-1.
The quality of the document they were completing and the speed with which it had been created adds perspective to this tawdry scene of the liquor-plying lobbyists having their way with the House Majority Whip. However threatening to the public interest this mix of money and schmoozing may be generally, DeLay and the airlines were right that the Hollings-Byrd restrictions were pork barrel provisions that had no place in this bill. More important, the overall bailout bill was a model, albeit messily put together, of what representative democracy -- of which lobbying by informed and intensely interested parties is a part -- can produce at its best.
The loan provisions of the bailout had been tightened considerably. The requirement that loans only go to airlines that presented long-term, viable business plans all but guaranteed that any airlines that were on their way down before September 11 -- and there were quite a few -- would not now benefit from September 11. Only those experiencing relatively short-term September 11-related problems were likely to qualify. Also, a provision insisted on by Republican Senator Peter Fitzgerald of Illinois and Democrat Jon Corzine of New Jersey (a former investment banker) allowed the board deciding on the loans to seek an option to buy shares in the airlines as part of the deal. That way, the taxpayers could share not only in the risk but the upside.
Moreover, the staff on the Senate Judiciary Committee, helped by a lawyer on Hillary Clinton's staff, had done a good job running with the idea that a senior staffer in Trent Lott's office had come up with for a victims fund. The lawyers on the committee had soon realized that the Lott aide's out-of-court fund looked a lot like one established by private companies for victims of Agent Orange, a defoliant whose use during the Vietnam War had produced thousands of injuries, and lawsuits. Using the Agent Orange setup as a framework, they had developed a fund mechanism that really seemed to be a solution to getting the airlines off the hook of liability beyond what they were insured for, while still offering victims a fair, and relatively fast, payout.
Interestingly, no one seemed to spend a lot of time worrying about an obvious constitutional issue: By capping the airlines' liability for damages to an amount equal to the insurance they had for each of the four September 11 plane crashes, wasn't Congress unlawfully taking from the victims a right they had -- to sue the airlines for whatever a court and jury would allow? The staff lawyers talked about what would seem to be an unconstitutional taking of property (in this case the right to sue the airlines without a limit on their liability), but decided that no appeals court, especially the United States Supreme Court, was likely to veto this kind of congressional emergency action. But it did make them especially determined to make sure that the compensation fund -- where the victims would have to choose to go instead of a court -- would be regarded as a desirable, fair alternative.
What was also interesting about this solution was that it did not come from the White House. The Bush administration had been willing to settle for the government simply providing a backstop to the airlines' insurance coverage and stepping in and paying off all the verdicts people won in court that exceeded the airlines' coverage. It was a simple solution, but one that captured the worst of two worlds. It didn't offer the prospect of limiting the long court process or trial lawyers' large contingent fees. Yet it risked either being much more expensive because juries, not a Special Master, would be dispensing the taxpayers' money, or being of no help to the victims, because jurors would decide that only the terrorists, not the airlines or anyone else, were at fault. The fund seemed to be a much better solution.
Saturday, September 29, 2001
Two days ago, Syed Jaffri, a 34-year-old Pakistani with a wife and four children back home, had been arrested by FBI and INS agents. The day before he had had a dispute with his landlord in the Bronx, after which the landlord had then made good on a threat to call the authorities about his immigration status. Jaffri was working at a gas station without a work visa.
Jaffri, who had no criminal record, was held at the INS lockup, where, he claims, he was beaten and verbally abused, repeatedly called a terrorist, and never advised of his right to a lawyer. (INS officials refused to make any of the agents involved available for comment, though the INS repeatedly denied any improprieties in questioning detainees. The Justice Department's inspector general later began an investigation of the charges in this and similar cases, but by early January his report, promised for October, had been inexplicably delayed. The events recounted here echo other accusations reported by, among others, Amnesty International. However, because they are from one side's complaint in a lawsuit, they could be exaggerated or even fictional.)
This morning, Jaffri was taken from the Manhattan lockup to the INS's main detention facility in Brooklyn, where, he says, he was strip-searched and placed in a solitary, windowless cell. He claims that one INS guard told him, "If the FBI arrested you, that's good enough for me," whereupon his face was slammed so hard against a wall that his teeth were jarred loose. It was the first day of six months of solitary confinement in that cell. The lights were on all the time. He was never told what time it was, so he never knew when to pray. For the first two months, he claims, he was given two square pieces of toilet paper a day, and denied soap, a toothbrush or toothpaste, and all reading materials.
Jaffri's detention was by now becoming part of a pattern, though it was invisible because Attorney General John Ashcroft had taken such extraordinary measures, including keeping hearings for people like Jaffri secret, to make sure it all happened out of public sight.
It had all been worked out at a series of meetings Ashcroft had with a small group of aides that included Deputy Attorney General Larry Thompson and Criminal Division chief Michael Chertoff. Nothing was put formally on paper.
The perspective the group started with was simple. The 19 men who had hijacked the planes could not be the only ones who were living in America quietly waiting to attack. There could be hundreds, even thousands, of others, and their job was to find them. The obvious target was young Muslim men, plain and simple. But they had no informants, really no contact at all, in those communities. So they had to use what they had to check as many of the target population as they could, as fast as they could. Again, the first goal wasn't to prosecute them but to prevent them, which meant that violating the kinds of rules pertaining to searches and interrogation that would get evidence thrown out of court wasn't that important.
There were three ways Muslim men could be identified and checked out: First, if a Muslim name popped up in any context associated with the hijackers, they were immediately sought out. For example, if an Arab name was found in a list of students at one of the hijacker's flight training schools, he would be tracked down. Even having gone to the same state motor vehicle office to obtain a license was connection enough.
The second category of people was those who came to the FBI's attention because citizens (such as Jaffri's landlord in the Bronx), or state or local police officials, notified the bureau about them. For example, a Missouri man with a Muslim name who had been arrested for outstanding traffic violations was turned over to the FBI in Kansas City when the police noticed that he had a lot of checks in his wallet. Their investigation produced an arrest for writing checks with insufficient funds in his account, a federal crime but one not typically resulting in arrests, let alone prolonged detention.
The third category was just plain names. FBI offices, aided initially by INS and sometimes even local police, who were not busy questioning people in the first two categories, were told to check names in their areas from among the hundreds of thousands provided by the INS of Muslims who had come into the country in the last few years. When these proved mostly useless because INS records are almost always inaccurate or incomplete, they were even told to look in the phone book.
How these people were treated depended on who was questioning them (some FBI offices had more polite agents than others, though the FBI was generally more respectful than the INS agents), and, more so, on how tenuous or direct their connection to the terrorists might have seemed. A professor at a college in Indiana, who thinks his name was simply picked from the phone book, says the agents who questioned him four times were polite and respectful and even seemed embarrassed at the job they'd been given.
People like the professor who seemed to check out after being questioned would be left alone; there was little the feds could do to hold them anyway. But Ashcroft and his small group of deputies carefully mapped out how they could exert maximum pressure on everyone else -- which meant all noncitizens and any citizens who seemed the least bit suspicious.
If they were not citizens, the FBI and INS would look for something that they had done wrong in terms of their immigration status. Had they taken jobs, even though they had tourist visas? Had they overstayed their visas? Such violations usually were easy to find, especially since INS's enforcement of these conditions over the years had been almost nonexistent.
They would then be detained for immigration violations, if one could be found, and questioned repeatedly. It didn't matter if the violations were minor transgressions for which immigrants of other nationalities are rarely, if ever, held. Ostensibly, they were being held pending a hearing in which the government would move to deport them for the visa violation. But Chertoff had figured out that these hearings could not only be done in secret, but could also be delayed, and that even after the hearings were held and they were ordered deported, there was nothing in the law that said they absolutely had to be deported immediately. They could be held still longer, until the FBI decided they were of no use.
Better yet, because immigration detentions are civil, not criminal proceedings, these people were not entitled to free lawyers. They could hire one if they could afford it, which was not often. Under INS rules, they were entitled to call a lawyer from jail, but the lists the INS provided of available lawyers invariably had phone numbers that were not in service.
This was discussed at one of the Ashcroft meetings, and, according to one person who says he was there, someone in the room remarked that the government should not try too hard to make sure these people could get lawyers on the phone. "Let's not make it so they can get Johnnie Cochran on the phone," another lawyer added, according to one of the participants, referring to O. J. Simpson's famed defense lawyer. (Ashcroft says he does not remember this conversation or any reference to Johnnie Cochran, and that he had directed that all detainees be made aware of lawyers who could assist them.) The Justice officials were sure to a certainty that at least some of the men they were holding or were about to hold were people bent on killing more Americans if allowed to, or at least knew of people who were planning to do that.
According to two people who attended these meetings, and to INS Commissioner James Ziglar, Chertoff was put in charge of all INS detentions. He and his deputies would make all decisions on who was released and even who was held in solitary. This was unprecedented; Chertoff is the head of the Justice Department's Criminal Division and INS detention proceedings were civil, not criminal, tribunals, held in front of INS judges. As for the detention conditions, no one at INS would be ordered in so many words to treat the inmates harshly. But the word would go out that these were suspected terrorists, or people who knew who the terrorists were -- and they needed to be encouraged in any way possible to cooperate.
If the targets were citizens, or their immigration papers were in order, they would be held for minor crimes, such as lying to a federal agent or having fraudulent identification documents. The feds would then offer leniency, or threaten to throw the book at them, depending on how much information about terrorists they provided. In other cases, where not even minor crimes could be established, or where the government was worried that these people were so important that they did not want them to get lawyers quickly (as they would be entitled to if charged with any crime), the targets were held as material witnesses.
The government can hold someone as a material witness if prosecutors claim to a judge that the person might have vital evidence in an investigation but might flee before being put before a jury or a grand jury to testify. The new twist Ashcroft's team now decided to add was that they would control when, if ever, that person might be asked to testify -- meaning they would seek to hold the person indefinitely so as to coerce him to talk.
Chertoff reasoned that while they were being held they would be discouraged from calling lawyers, and could be questioned without lawyers present because they were not being charged with any crime. The advantage of using this newly expanded material witness classification was that the feds didn't have to prove anything criminal about the person being held, but only that he might have material information about an investigation. And as a practical matter it, too, could be done in secret because these material witnesses were meant to testify before grand juries, and all grand jury proceedings, including any hearings involving the status of a witness, are, by law, required to be secret. With a grand jury in New York empaneled for the foreseeable future to investigate the attacks and any plots for new attacks, these material witnesses could be held indefinitely, Ashcroft and his small team reasoned.
The FBI, though, was another issue. FBI Director Robert Mueller was not comfortable with a dragnet that simply held people on the hope that some might know something simply because they were Muslim men. He didn't quite put it that way to Ashcroft, but he did say on several occasions that his agents were not used to going after people about whom they had no real evidence of criminal conduct. To which Ashcroft replied that that was precisely the point he had been making about how the world had changed -- how their job now was to prevent new crimes more than solve old ones. And the way to do that, Ashcroft literally said during one meeting at the FBI operations center, was to round up anyone who fit the profile.
Most of the subsequent analysis in the press and even in court decisions didn't fully appreciate how different Ashcroft's perspective was. He had been given a job by President Bush that no other attorney general had been given -- to prevent crime rather than to prosecute it. Thus, to look at his decisions simply from the perspective of whether the agents under his direction violated defendants' rights misses the point. To Ashcroft and his team these were not defendants in cases where evidence stemming from an improper search or interrogation might be excluded at a trial. They were potential killers who had to be stopped.
Friday, October 26, 2001
Anthony Romero, the ACLU's young executive director, thinks of himself as, in his words, a "fanatical patriot" with a classic American bootstraps story -- Bronx-born Puerto Rican son of poor hotel worker goes to Princeton and Stanford Law, then becomes head of major national public policy organization. So he had actually believed he'd get in to see his attorney general. But although the ACLU chief had tried repeatedly to get a meeting with Ashcroft, he kept getting the brush-off. So today he took sloppy seconds. FBI Director Robert Mueller, who is not nearly as hard-line as Ashcroft, agreed to meet with him.
As the group of eight (three other ACLU people and three other FBI officials) sat down, Romero tried to connect by chatting about the two things he and Mueller had in common. They'd both gone to Princeton and both had started their jobs officially on September 4. That broke the ice a bit, but not much.
Romero's main subject was the immigrant detainees. There were now reports circulating in the press that several hundred were being held, but no one knew for sure. It would later be revealed that approximately 1,200 people had been arrested or detained in the first six months of the investigation, of whom about 800 were detained immigrants. Romero asked Mueller how many were, in fact, being detained.
Mueller politely said he couldn't answer that. In fact, he might not have known because his men had not made all the arrests. INS and others had made some. Besides, the FBI had nothing to do with whether the INS held those arrested, or for how long. That was all being handled by Chertoff's Criminal Division at Justice.
Romero said that his organization was getting reports of people being held without access to lawyers and then being abused in jail. Mueller said nothing, other than that if they knew of any specific instances of FBI abuse they should tell him so that he could investigate. Romero countered that for the ACLU or any other group to play that role they had to have basic information about who the detainees were and access to interview them. Mueller said he couldn't help with that.
After a half hour, as Romero got up to go, he told Mueller that he felt he should give him a heads-up that the ACLU was going to sue the government in about a week under the Freedom of Information Act in order to obtain the kind of information they had been talking about. The FBI Director thanked him for the courtesy, handshakes were exchanged, and everyone left.