Company Man: Thirty Years of Controversy and Crisis in the CIA (30 page)

By the end of 1998, however, the White House was handing the baton, albeit tentatively, to the CIA. Like Jimmy Carter, the last Democratic president before him, Clinton belatedly turned to the Agency and its covert-action capabilities to deal with a burgeoning threat to national security. For Carter, it had been the Soviet invasion of Afghanistan and Soviet- and Cuban-sponsored subversion in Central America. For Clinton, it was bin Laden and Al Qaeda. Also like the Carter administration, the Clinton White House ordered up a rapid-fire series of MONs from the Agency over a period of several months. I took the lead in drafting these documents, and as always I did my best to reflect in the clearest possible language what sorts of actions the president wanted us to carry out. Which would prove to be a difficult task indeed.

I had first heard the names Osama bin Laden and Al Qaeda around 1993, a time when bin Laden was operating out of Sudan. I don’t recall knowing many details back then about bin Laden or what he was up to, much beyond his being a charismatic terrorist financier who would occasionally surface to deliver anti-U.S. diatribes. As the 9/11 Commission would later note, for all his vitriol and veiled threats against “the far enemy,” there were no concrete links that could be established between bin Laden and the most prominent terrorist attacks that took place during the early and mid-’90s, such as the 1993 WTC bombing, the 1995 Manila plot to blow up a dozen U.S. airliners over the Pacific, and the 1996 truck bomb detonation at the Khobar Towers complex in Saudi Arabia housing U.S. Air Force personnel.

By 1998, however, bin Laden had made his intentions crystal clear. In February 1998, he issued his infamous public “fatwa” calling for the murder of any American, anywhere on earth, as the “individual duty for every Muslim who can do it in any country in which it is possible to do it.” Six months later, in August 1998, bin Laden’s words turned into tragic, spectacular, chillingly coordinated action: The U.S. embassies in Kenya and Tanzania were bombed, almost simultaneously, killing 240 people, including a number of Americans, and wounding more than 4,000. The evidence, although not conclusive for prosecution purposes, pointed to bin Laden and Al Qaeda as being behind the attacks.

During the months before the embassy attacks, the Agency was already developing contingency plans for the capture of bin Laden and his delivery to the United States for prosecution. Our analysts were certain that he was in hiding somewhere in Afghanistan, perhaps in the vast no-man’s-land along the Afghanistan-Pakistan border. But there was one major hitch: There was no indictment pending against him. Nonetheless, at White House direction, I drafted an MON in May 1998 authorizing a specific plan that involved having some Afghan tribal groups, with CIA support and funding, capture bin Laden and deliver him to justice, either in the United States or elsewhere. There was an old Presidential Finding on worldwide terrorism that was still on the books, issued by President Reagan in 1986, that contained language that was probably broad enough to cover the sort of “snatch” contemplated against bin Laden. I knew that, because I was the guy who had drafted the Reagan Finding and, among all the officials who had been involved in the Finding back then, I was the only one still around in 1998. But I didn’t want the Agency to act simply on the basis of that Finding: I wrote it in another era, to deal with terrorists from another era, long before there was anyone comparable to bin Laden. Besides, the more I learned about the plan, the more iffy it sounded to me; among other things, bin Laden was not facing criminal charges in the United States (federal prosecutors would not secure a sealed indictment until that June), and there was no other country yet willing to take him off our hands. To top it off, even if the Afghan tribals were to get to him, our people were telling us that bin Laden was unlikely to come along quietly. There would be a shoot-out, and bin Laden—and maybe women and children around him—could be killed. And the Clinton White House was only talking about capturing bin Laden, not knocking him off.

And so, with Bob McNamara’s support, I told George Tenet we needed new, specific presidential authority, via an MON, before directing our Afghan tribal surrogates to attempt a “snatch.” I suppose one could call that “risk aversion.” So be it. In any case, the plan was called off in mid-May, and the MON I drafted was shelved. To this day, I don’t know for certain who actually made that call. The 9/11 Commission, in its meticulous reconstruction of events in the years leading up to 9/11, couldn’t definitively pin that down, either.

Following the embassy bombings in August, however, the Clinton White House decided to up the ante. Only it would prove very hard to discern how much.

At first, the MON authorizing a “snatch” of bin Laden by our Afghan tribals was dusted off. This time around, I was instructed to add language authorizing the tribals to use force only for “self-defense.” It was a phrase I did not remember ever including in a Finding or MON before and one more suited for a judge’s jury instructions in a criminal trial than as a covert-action directive. But we did as we were told, and Clinton signed the document in late August.

As the summer of 1998 turned into fall and early winter, and as vaguely sourced but chilling intelligence reports filtered in, hinting at possible Al Qaeda attacks on other U.S. embassies and even U.S. aircraft, the Clinton White House gingerly inched forward. It was becoming abundantly apparent that any chance for the tribals to pull off a successful “snatch” would require them to employ force well beyond any reasonable definition of “self-defense”; in other words, they would need to go in to get bin Laden with guns blazing. I recommended to George Tenet that, in order to protect the CIA and to reflect the cold reality, any new MON needed to include blunt language in which the president would acknowledge the likelihood that bin Laden would be killed in any effort to capture him. I had never drafted a Finding or MON before that contained such stark language, but I didn’t see any other way to say it.

And yet somewhere along the way up the chain in the NSC structure, another turn of phrase was inserted in the MON that Clinton would ultimately sign in December: The CIA could authorize the Afghan tribals to kill bin Laden only if capture was “not feasible.” It was another term I didn’t remember ever seeing before in a presidential covert-action authorization, and it was disconcertingly opaque. Who would decide if capture
wasn’t feasible? The tribals, or their Agency handlers? When would the call be made? Before any capture plan was launched, or in the middle of the fray, with bullets flying?

Or, in the worst-case scenario, would the call be made well after the firefight, with bin Laden shot dead, and some Monday-morning quarterback behind a desk in the Executive Branch or Congress concluding that it would have been “feasible” to take him alive?

I had been in the business of drafting Findings and MONs for twenty years, and my guiding principle had always been to write language that established bright lines about what a president was authorizing the Agency to do in terms of covert action. This one was fuzzy in the most legally and morally hazardous area of all: when, and under what circumstances, the Agency could sanction the killing of a particular individual.

Fortunately (albeit unfortunately for the country, as history would show), my worries were unwarranted. The Afghan tribals soon proved supremely incapable of mounting any sort of operation against bin Laden, capture or otherwise. As a result, with the drumbeat of intelligence growing louder about Al Qaeda plans to strike the United States, the Agency frantically cast about for some other Afghan indigenous group that had the methods and the motivation to find where bin Laden was hiding, and get to him.

The CIA turned to a group called the Northern Alliance, led by a man named Ahmed Shah Massoud, a fearless, legendary hero of the Afghan resistance to the Soviet occupation of the ’80s. (Massoud also had a well-deserved reputation as being a brutal warlord possibly mixed up in the flourishing Afghan drug trade. But hey, nobody’s perfect.) Massoud certainly had the chops to go after bin Laden. So, in early February 1999, I was directed to draft yet another MON to unleash Massoud and his Northern Alliance. And then things got even more confusing.

The language I used mirrored wording of the MON covering the Afghan tribals that Clinton had signed just a few weeks before: capture if possible, kill if capture isn’t feasible. As noted above, I didn’t like that formulation, but I figured it was important to keep the marching orders consistent, no matter which Afghan group the Agency was dealing with. No sense in muddying the waters even further, especially when the ground rules involved potentially lethal actions.

The language was vetted and approved by everyone involved and got
all the way to the Oval Office, but before signing the MON, Clinton did something that I never saw any other president do, before or since: he scribbled his own handwritten changes to the text. As best I can recall, he scratched out what I thought was the most important passage of the previous MON, which was an acknowledgment that in all likelihood bin Laden would be killed in any effort to capture him. Clinton instead inserted a few, new qualifying words that, to my mind, appeared to revert to the more restrictive standard he had set in his original MON governing the Afghan tribals in August 1998, in the wake of the embassy bombings: Lethal action could be taken against bin Laden only in self-defense.

I found Clinton’s seeming equivocation on such a fundamental national security policy decision baffling, to say the least. Five years later, I would be even more baffled when I read his testimony before the 9/11 Commission, in which this indisputably brilliant, details-oriented man claimed not to have any recollection as to why he made his handwritten changes.

And so, in February 1999, with Clinton having signed three MONs authorizing capture operations against bin Laden in the space of five months, I thought the Agency was being left out on a precarious limb. In effect, the president had given the CIA more leeway to approve lethal actions by one group (the Afghan tribals) that had no capability or stomach for taking them than by another (Massoud and his Northern Alliance) that had every means and motive to do so. It took the concept of “mixed presidential signals” to a new and perilous level.

Janet Reno, Clinton’s attorney general, was a problem for the Agency as well during this period. The AG, then and now, is in the loop on all proposed new Findings and MONs. I was present at a number of covert-action briefings CIA personnel gave Reno during her nearly eight years in office, and she was always a courteous and interested listener. When it came to the MONs regarding bin Laden, however, she acted in ways that were often erratic and alarming. When each proposed MON was sent to her for review, she or her staff would agonize over and flyspeck every word, no matter how bland it was. For at least two of the three MONs regarding bin Laden, her legal approval, when it finally came, was accompanied by a separate memo she sent to Clinton in which she expressed her opposition on “policy” grounds.

Now, as one of the cabinet principals taking part in national security
decision-making processes, it was certainly her prerogative to do that—over the years, I had seen various secretaries of state and defense express policy objections to their president about specific covert-action proposals. But for an attorney general, the nation’s chief law-enforcement officer, to go on record against a Finding or MON sends an implicitly intimidating message to those carrying out the president’s directive: If things go awry, you’re on the legal hook, not me.

And Reno went further. Once during this period when the various MONs shifting the ground rules on bin Laden “capture” operations were churning, a shaken George Tenet reported back to Bob McNamara and me about a session he had just had with Reno. The AG, he said, had just informed him that she would consider as “illegal” any CIA operation intended solely to kill bin Laden. George heard the nation’s chief law-enforcement officer say the word
illegal
and immediately translated it to
murder
. As far as I know, she never expressed that position in writing, but it hardly encouraged us at the Agency to push the lethal envelope against bin Laden.

In the aftermath of the 9/11 attacks, Bill Clinton insisted that while in office he had issued direct, unambiguous orders to the CIA to kill bin Laden. Perhaps he sincerely believed that. I wonder if he had checked with his former attorney general.

All that said, Clinton and the people around him can’t be entirely faulted for this tangled state of affairs, and they certainly weren’t the reason bin Laden escaped capture or death during Clinton’s last years in office. I never saw any CIA covert-action proposal during that period that, at least to me, seemed to have any real prospect for success. Reliable intelligence about bin Laden’s whereabouts was hard to come by, and the stuff that did come in had mostly to do with where bin Laden had previously been, not where he currently was or where he was going. Further, even if the Agency had gotten any “smoking gun” intelligence about bin Laden’s location, from what I read and heard inside our building I had no confidence that the groups the CIA was supporting in Afghanistan had anywhere near the wherewithal to carry out the job. So, looking back now, the Clinton administration’s inconsistent and unsettling operational mandate to the Agency proved, as a practical matter, to be irrelevant.

Apart from the spate of MONs on bin Laden, the Agency was conducting other, less-high-risk/high-reward covert-action activities against
Al Qaeda during ’98 and ’99. At Tenet’s direction, the entire intelligence community was going all out in targeting Al Qaeda from an intelligence-collection standpoint. However, Clinton issued no new Findings or MONs on counterterrorism from mid-’99 through the end of his administration, not even in the wake of the Al Qaeda bombing of the USS
Cole
in October 2000. In the 9/11 postmortems, Clinton took some heat for that, but I think it’s unfair criticism. Clinton was a lame-duck incumbent wrapping up his second term, and outgoing presidents historically have been reluctant to saddle their successors with last-gasp, high-stakes covert-action initiatives. Ronald Reagan, the last two-term president before Clinton, similarly refrained from signing any new Findings and MONs during his last year in office. Besides, as I indicated above, it wasn’t as if bin Laden and his closest cohorts were low-hanging fruit from an intelligence standpoint; even if Clinton, say, had issued clear, unconditional orders after the
Cole
bombing for the CIA to kill those guys, the Agency didn’t know where they were, and even if we had, we didn’t have the means to get to them. And that’s the inconvenient truth.