Ghost Wars (73 page)

Tenet said the intelligence he had about bin Laden’s location this time was “single-threaded,” meaning that he lacked a second, independent source. The CIA was searching for confirmation of bin Laden’s presence but didn’t yet have it. As his Delenda memo reflected, Clarke believed that they should fire the missiles anyway. He felt that if they missed bin Laden, Clinton could just declare to the public that he had been targeting Taliban and al Qaeda “infrastructure” and “terrorist training camps” because of continuing threats. Clinton, however, was not enthusiastic about bombing Taliban and al Qaeda camps that Hugh Shelton derided as little more than “jungle gyms” if there was scant expectation that bin Laden or his top lieutenants would be killed. To strike at bin Laden and miss would hurt the United States, Clinton believed.
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Berger told his colleagues that the costs of failure might be very high. Every time the United States shot off one of its expensive missiles at bin Laden and failed to get him, it looked feckless, Berger argued, reinforcing Clinton’s view. As Berger later recalled it: “The judgment was [that] to hit a camp and not get top bin Laden people would have made the United States look weak and bin Laden look strong.”
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Berger did not demand absolute certainty from Tenet or the CIA about bin Laden’s location. The standard he laid down for a decision to strike was a “significant” or “substantial” probability of success. But could the CIA promise even that much?
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Tenet reported back to the group: He did not have a second source. He would not recommend a missile launch. In this judgment he was supported by several of his senior aides at the CIA and the Pentagon’s commanders. The submarines returned to their patrols off Pakistan, still on alert. “I’m sure we’ll regret not acting last night,” wrote Mike Scheuer, the bin Laden unit chief, to Gary Schroen. “We should have done it last night,” Schroen replied. Increasingly, the CIA was chasing a roving spectre.

IN ADDITION TO the submarine order Clinton signed a Top Secret “Memorandum of Notification” within days of the embassy bombings to authorize the CIA or its agents to use lethal force if necessary in an attempt to capture bin Laden, Ayman al-Zawahiri, and several other top lieutenants. Clinton had a specific understanding of bin Laden’s leadership group. He understood al-Zawahiri as someone who was “as smart as bin Laden, not quite as charismatic, but equally ruthless.” The squat Egyptian doctor remained fixed in Clinton’s mind as a participant in the conspiracy that assassinated Anwar Sadat, whom Clinton saw as a rare progressive in the Middle East. His memo provided legal authority for CIA covert operations aimed at taking a specific list of al Qaeda leaders into custody for purposes of returning them to the United States for trial on federal charges of terrorism and murder.
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The MON, as it was called, added new specificity to a previously approved CIA covert action program. The agency already had legal authority to disrupt and arrest terrorists under the 1986 presidential finding that established its Counterterrorist Center. A new finding would trigger all sorts of complex bureaucratic, budgetary, and legal steps. It seemed wiser to use a MON to amend the legal authority the center already possessed, to make it more specific.

By 1998 government lawyers had been intimately woven into the American system of spying and covert action. After the Iran-Contra scandal the White House established a new position of chief legal counsel to the president’s national security adviser. This office, headed at the time of the Africa embassy bombings by Jamie Baker, occupied a suite on the third floor of the Old Executive Office Building, next to the chief White House adviser on intelligence policy. Baker ran a highly secret interagency committee of lawyers that drafted, debated, and approved presidential findings and MONs. They spent long hours on subtle legal issues that arose in America’s lethal covert action programs:When is a targeted killing not an assassination? When is it permissible to shoot a suspect overseas in the course of an attempted arrest?
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Those and similar questions swirled around the CIA’s secret program to track and capture Osama bin Laden in Afghanistan. From Tenet on down, the CIA’s senior managers wanted the White House lawyers to be crystal clear about what was permissible and what was not. They wanted the rules of engagement spelled out in writing and signed by the president so that every CIA officer in the field who ever handed a gun or a map to an Afghan agent could be assured that he was operating legally.
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This was the role of the MON. It was typically about seven or eight pages long, written in the form of a presidential decision memo drafted for Clinton’s signature. The August 1998 memo began with what the lawyers called a “predicate,” or a statement about how bin Laden and his aides had attacked the United States. It also outlined and analyzed possible repercussions of the covert action being planned to arrest them. The MON made clear that the president was aware of the risks he was assuming as he sent the CIA into action. Any covert arrest operations in Afghanistan might go sour, and agents or civilians might be killed. Difficulties might be created for American diplomacy if the operations failed or were exposed. There was also language to address the issue of civilian casualties. Typically this was a boilerplate phrase which in effect urged that “every effort must be taken” by the CIA to avoid such casualties where possible.
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Some of the most sensitive language in the MON concerned the specific authorization to use deadly force. The lawyers had to make clear to the CIA in writing that it was okay to shoot and kill bin Laden’s bodyguards or bin Laden himself as long as the force was employed in self-defense and in the course of a legitimate attempt to make an arrest. “We wanted to make clear to the people in the field that we preferred arrest, but we recognized that that probably wasn’t going to be possible,” Richard Clarke said later. After the Africa bombings the intent of the White House, Clinton’s national security aides insisted later, was to encourage the CIA to carry out an operation, not to riddle the agency with constraints or doubts. Yet Clinton’s aides did not want to write the authorization so that it could be interpreted as an unrestricted license to kill. For one thing, the Justice Department signaled that it would oppose such language if it was brought to Clinton for a signature. Their compromise language, in a succession of bin Laden–focused MONs, always expressed some ambiguity. Typical language might instruct the CIA to “apprehend with lethal force as authorized.”
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Those sorts of abstract phrases had wiggle room in them. Some CIA officers and supervisors read their MONs and worried that if an operation in Afghanistan went bad, they would be accused of having acted outside the memo’s scope.

As time passed, private recriminations grew between the CIA and the White House. It was common among senior National Security Council aides to see the CIA as much too cautious, paralyzed by fears of legal and political risk. They were not alone in this view. Porter Goss, a former CIA officer who had entered Congress and now chaired the House intelligence committee, declared just six weeks after the Africa bombings that the Directorate of Operations had become too “gun-shy.” The CIA’s outgoing inspector general, Fred Hitz, wrote at the same time that the CIA “needs to recapture the esprit de corps it manifested during the height of the Cold War.”
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At Langley this criticism rankled. Midlevel officers noted that they were the ones who had developed the Tarnak snatch operation even before the Africa attacks, only to have it turned down. The CIA’s senior managers felt that Clinton’s White House aides, in particular, wanted to have it both ways. They liked to blame the CIA for its supposed lack of aggression, yet the White House lawyers wrote covert action authorities full of wiggle words. CIA managers had been conditioned by history to read their written findings and MONs literally.Where the words were not clear, they recommended caution to their officers in the field.

The classified legal memos reflected a wider ambiguity in Clinton’s covert policy toward bin Laden that autumn. There was little question at either the National Security Council or the CIA that under American law it was entirely permissible to kill Osama bin Laden and his top aides, at least after evidence showed they were responsible for the Africa attacks. The ban on assassinations contained in Executive Order 12333 did not apply to military targets, the Office of Legal Counsel in Clinton’s Justice Department had previously ruled in classified opinions.
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Tarnak Farm or other terrorist encampments in Afghanistan were legitimate military targets under this definition, the White House lawyers agreed. In addition, the assassination ban did not apply to attacks carried out in preemptive self-defense where it seemed likely that the target was planning to strike the United States. Clearly bin Laden qualified under this standard as well. Under American law, then, Clinton might have signed MONs that made no reference to seeking bin Laden’s arrest, capture, or rendition for trial. He might have legally authorized the agency to carry out covert action for the sole purpose of killing bin Laden, al-Zawahiri, and other al Qaeda leaders.

But Clinton did not choose this path. Janet Reno, the attorney general, from whom Clinton was somewhat estranged, opposed MONs that would approve pure lethal operations against bin Laden by the CIA. Reno’s position, expressed in Jamie Baker’s top-secret council of lawyers and in other communications with Richard Clarke’s counterterrorism group, was nuanced and complex, according to officials who interacted with the attorney general and her aides. She told the White House that she would approve lethal strikes against bin Laden if the Saudi threatened an imminent attack against the United States. But what was the definition of “imminent”? Clarke argued that the threat reporting about bin Laden made clear that al Qaeda had attacks in motion, but it was impossible to be sure about the timing or location of specific bin Laden operations. Reno accepted that they could not predict specific attacks, but when the strikes that Clarke warned about did not occur right away, Reno sometimes renewed her private objections to broad lethal authority for the CIA.

Reno’s disapproval mattered because National Security Adviser Sandy Berger sought a consensus within the Cabinet about the exact wording of the CIA’s instructions. Even though they felt they were on very solid legal ground, the language they were working with month after month, memo after memo, lived in uncomfortable proximity to the long-standing White House ban on assassinations. They did not want Reno to develop dissents to Clinton’s decisions about bin Laden in this area. In the midst of the impeachment mess, none of them wanted to wake up to a newspaper headline that read: ATTORNEY GENERAL OBJECTS TO CLINTON’S TERRORIST ASSASSINATION PLANS. So Jamie Baker’s group drafted and redrafted language to accommodate Reno’s concerns. The resulting consensus formulations, conceded one White House senior official involved, were often convoluted and “Talmudic.”

More broadly, the president’s covert policy—as fashioned by Sandy Berger, his deputy James Steinberg, Richard Clarke, and the national security cabinet—pursued two different goals at the same time. On the one hand, they ordered cruise missile–equipped submarines to patrol secretly under the Arabian Sea. They hoped to use the submarines to kill bin Laden if they could find him sitting still long enough to strike. On the other hand, they authorized the CIA to carry out operations designed at least on paper to take bin Laden alive. The Small Group debated “whether to consider this a law enforcement matter demanding a judicial response or a military matter in which the use of armed force was justified,” Madeleine Albright recalled. “We decided it was both.” William Cohen argued that debate over war versus law enforcement was a “false choice”; all instruments of American power were required at once.

The split policy reflected unresolved divisions inside the national security cabinet. Attorney General Janet Reno and FBI director Louis Freeh, along with others at Justice, had invested themselves deeply in the law enforcement approach to terrorism. American counterterrorist policy had since 1986 emphasized bringing terrorists to justice in courtrooms. Even though killing bin Laden would be legal under American law, some at Justice and the White House nonetheless felt uneasy at times about that approach. There might be unintended consequences. They had been willing to endorse the August cruise missile strikes in the immediate aftermath of the embassy bombings. There was a sense of proportion in those attacks. Now, as an ongoing matter, some of them preferred to seek bin Laden’s arrest, not to launch a low-grade war.
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Clinton himself seemed to lean in both directions. If anything, by his actions and decisions the president seemed to favor lethal force against bin Laden and al-Zawahiri if he could find a way to make an immaculate strike. “Clinton’s desire to kill them was very clear to us early on,” recalled one of his senior aides. But he did not commit himself all the way. The first MON he signed in the summer of 1998 authorized covert action aimed at taking bin Laden and his aides into custody for trial. The ambiguous language might have been crafted to assure Janet Reno’s support, but Clinton etched his own signature on the memo. Yet the president’s second MON explicitly authorized bin Laden’s death in one narrow set of hypothetical circumstances—without overriding the general order in the first memo.

At one of Richard Clarke’s Counterterrorism Security Group meetings that autumn, they reviewed intelligence about how bin Laden moved around Afghanistan. Sometimes he traveled by road in heavily armed convoys of Land Cruisers. Occasionally, however, he flew in helicopters and aircraft maintained by al Qaeda in conjunction with the Taliban’s small air force. The CIA received occasional reports from its tribal tracking team and other sources about bin Laden’s flights. They wanted to be certain their agents had legal permission to shoot at a helicopter or airplane if they knew that bin Laden was on board. The Pentagon also ordered planning late in 1998 for operations to intercept al Qaeda aircraft. Downing an airplane was not an operation likely to produce an arrest or capture, so it did not seem to be covered by the prevailing MON. Also, such an attack could violate international treaties banning air piracy. This was an area the National Security Council lawyers often worried about: A covert operation might be legal under domestic U.S. law, but it might at the same time violate American treaty commitments abroad. This could lead other countries to abandon
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pledges under international treaties. Also, in some cases the United States had passed laws making any treaty violation a domestic crime. A MON might permit crimes abroad but nonetheless place an individual CIA officer in legal jeopardy inside the United States.
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