In 1998, President Clinton signed a document essentially authorizing killing bin Laden as long as the death was incidental to other pursuits—i.e., incidental to capturing him alive.23 If in the course of making an “arrest” bin Laden resisted and had to be shot, that was permissible, but taking him out with a sniper shot or a Hellfire missile was not. In preparation for this “arrest,” a federal grand jury was readied to issue the appropriate indictment.
Bin Laden was fighting a war, and our government was answering with a legal proceeding. The proceeding would be governed by the usual civilian rules: no killing the defendant unless it was purely incidental to his apprehension. Do not kill an associate who might be standing near him. Nor, when the cry was to “bring him to justice,” did there seem to be much thought about how difficult it is to prove a case in a terrorism setting, given the restrictions on hearsay evidence and the requirement that evidence be authenticated before it can be admitted. Need to prove that bin Laden signed this document? You’ll need a handwriting expert and samples of his handwriting that can be authenticated—that is, witnesses who saw him sign it or are familiar with his handwriting. A 100 percent “reliable source” says he heard someone equally reliable say he heard bin Laden admit it? Sorry, that’s hearsay and a Confrontation Clause violation.24
In the meantime, however, there had been indigenous attempts to remove bin Laden from the land of the living. In Afghanistan, his Taliban was opposed by the loose alliance that came to be known as the Northern Front, and the Northern Front was very interested in taking bin Laden out. Years later, Haroun Amin, the Northern Front’s Washington representative, told investigative journalist Richard Miniter about three attempts to kill bin Laden in 1999 and 2000:
The first attempt was a bomb placed in the wall of a building which bin Laden’s convoy was expected to pass in Kandahar, Afghanistan. The bomb had a cheap detonator and exploded seconds too late—destroying the vehicle behind bin Laden’s—in 1999. When American intelligence officials learned about the assassination attempt, they were not happy. At the time, the Northern Alliance intelligence liaison was a Tajik named Amrullah Saleh…. Saleh received a lecture on the laws of war—and was sternly told not to do it again….25
The lecture given Saleh may seem strange, but it was perfectly in accord with the applicable Executive Orders. No federal employee, nor a person acting on behalf of the federal government, could become involved in an “assassination” or request someone else to carry one out. Miniter’s account continues:
Despite American pressure, Northern Alliance commanders kept trying to kill bin Laden. It would have been reckless for them not to go after the arch-terrorist, whose arms, money, and legions of men were an essential asset to their enemy, the Taliban. Simply assassinating bin Laden could win the war for the Alliance….
The next two Northern Alliance attempts to take out bin Laden were simply not reported to the Americans. Why bother? The first was a daring nighttime assault on bin Laden’s convoy in 2000. The second was an ambush in the canyons south of Mari-i-Sharif, also in 2000. “We killed a lot of their officers and men,” Amin insists, acknowledging that with American arms and training they would likely have been still more successful.26
On the other hand, Richard Clarke, who served as the chief antiterrorism member of the National Security Council, gives an entirely different version of events. He argues that there was sufficient legal authorization to terminate bin Laden, but that the Central Intelligence Agency repeatedly went passive-aggressive, always finding some reason why it could not be done. Clarke’s argument is that the Executive Orders banning assassinations had exceptions allowing killing of enemy commanders. (While the Orders actually lack such exceptions, Clarke has a point. When it comes to sidestepping the Orders, where there’s a will, there is a way. The 1986 bombing of Muammar Gaddafi was, for example, explained as meant to blow up his house and only by coincidence Gaddafi himself.)27 “I believe that those in CIA who claim the authorizations were insufficient or unclear are throwing up that claim as an excuse to cover the fact that they were pathetically unable to accomplish the mission,” Clarke wrote in 2004.28 One way or the other, whether the cause was adherence to legalisms or was bureaucratic inertia, the government’s inaction played a large role in clearing the path to 9/11.29
January 2001 saw Bill Clinton returning to Little Rock and the inauguration of a new President, George W. Bush. We might expect the change to improve the focus upon terrorism, if only because the new Administration stressed foreign policy. Clinton’s first CIA Director, James Woolsey, had served for two years and never once had a one-on-one meeting with the President.30 Under Bush, the CIA Director was present at each daily briefing.31
While things may have seemed promising, the result was not an immediate, or even prompt, war on terror. During the spring and summer of 2001, President Bush had on several occasions asked his briefers whether any of the terrorist threats pointed to the United States, and on August 6 he received a Presidential Daily Brief titled “Bin Laden Determined to Strike in US.”32 But those who surrounded the new president had different priorities. When National Security Advisor Richard Clarke pressed for speedy and dramatic action on terror, he encountered one roadblock after another. Some Administration officials were focused on European crises and the break-up of the Soviet Union. Others were focused on Iraq and regarded Saddam Hussein as a greater threat than bin Laden and al-Qaeda (which he clearly was not).
Clarke gave it his best try. On matters of national security, the highest body was the National Security Council Principals Committee, composed of the Secretary of State, the Secretary of the Treasury, the Secretary of Defense, the Chief of Staff to the President, and the Assistant to the President for National Security Affairs (joined, when asked, by the Director of Central Intelligence, the Chairman of the Joint Chiefs of Staff, and a few others).33 Below the Principals Committee was the Deputies Committee, composed of those officials’ deputies.
Five days after the inauguration, Clarke sent a memorandum to Condoleezza Rice, then the President’s National Security Advisor, stating “We urgently need such a Principals-level review on the al Qida network.” (At this point in time, al Qida was Clarke’s spelling of what is today usually rendered al-Qaeda). He noted the group “is not some narrow, little terrorist issue that needs to be included in broader regional policy” but, in his view, a central factor in Middle Eastern power equations:
Al Qida affects centrally our policies on Pakistan, Afghanistan, Central Asia, North Africa, and the GCC [Gulf Cooperation Council]. Leaders in Jordan and Saudi Arabia see al Qida as a direct threat to them. The strength of the network of organizations limits the scope of support friendly Arab regimes can give to a range of US policies, including Iraq policy and the Peace Process. We would make a major error if we underestimated the challenge al Qida poses, or over-estimated the stability of the moderate, friendly regimes al Qida threatens.34
Clarke proposed prompt decisions by the Principals on a number of issues—should the United States aid the Northern Alliance and Uzbekistan, which were fighting against al-Qaeda? What messages should go to Pakistan and Taliban-run Afghanistan about sheltering al-Qaeda? How should the Administration respond to the previous attack on the USS Cole?
Clarke’s proposal met roadblock after roadblock, and the Bush Administration was acting in the same fashion as the Clinton Administration … but Bush had less time. Rice initially informed Clarke that the Principals would not consider it until the matter had been “framed” by the Deputies. The Deputies in turn did not meet for three months. When they did, Deputy Defense Secretary Paul Wolfowitz wanted the emphasis to be Iraq, not al-Qaeda. In the end, the Deputies decided that responses to al-Qaeda, American-Afghan relations, and American-Pakistani relations formed a cluster that must be decided together and required further study.35 The issue was first considered at a Principals’ meeting on September 4, 2001. Clarke was tasked with drafting a “broad policy document,” a National Securi
ty Presidential Directive.36
Exactly one week later, al-Qaeda hijackers took over four aircraft and commenced their attacks. The highest levels of government were not the only ones to miss the ball.
THE FBI TAKES A NAP
During the years leading up to 9/11, the highest levels of the FBI appear to have seen foreign terrorism as a career backwater, filled with concerns over profiling and such; its resources and hopes for agency expansion were poured into domestic terrorism. Professor Robert H. Churchill has identified the period as involving the “second brown scare,” as distinct from the earlier red scares (where, as the saying went, it seemed there was a Communist under every bed) and the first brown scare (where the Communist was replaced by a brown-shirted Fascist). In the second brown scare, Fascists and Communists gave way to militia members.37
During this time FBI headquarters produced a report, Project Megiddo, described as a “strategic assessment of the potential for domestic terrorism in the United States undertaken in anticipation of our response to the arrival of the new millennium.”38 The report indicated that the Y2K computer bug, expected to hit all Windows computers in the year 2000,39 might lead to the United States being destroyed from within by the Christian Identity movement, by “cult-related violence,” or even (my personal favorite) the Black Hebrew Israelites, a group that maintains that African Americans are the true descendants of the Israelites and have not shown a disposition to destroy any government, large or small.
The contrast with the Bureau’s treatment of foreign terrorism is sharp. A 1999 General Accounting Office report found that the Bureau lacked a comprehensive risk and threat assessment—a basic strategic document—for foreign terrorism.40 The FBI agreed to prepare one but had other priorities. In September 2002, the Department of Justice Inspector General reported the following:
The FBI has never performed a comprehensive written assessment of the risk of the terrorist threat facing the United States. Such an assessment would be useful not only to define the nature, likelihood, and severity of the threat but also to identify intelligence gaps that needed to be addressed….
By September 2001, the FBI had developed a draft of a Terrorist Threat Report that described terrorist organizations and State sponsors but did not assess the threat and risk of an attack on the United States. In addition, based on our review of the draft, the FBI’s draft Terrorist Threat Report does not conform to the FBI’s assessment guidance, other available guidance on preparing threat and risk assessments, or the FBI’s representations as to how it would respond to the GAO’s recommendations. Among the report’s many omissions are assessments of the training, skill level, resources, sophistication, specific capabilities, intent, likelihood of attack, and potential targets of terrorist groups. Further, the draft report does not discuss the methods that terrorists might use.41
And this a full year after 9/11!
FBI FIELD OFFICES SEE TERRORIST PATTERNS
In the last months before the 9/11 attacks, two FBI Field Offices alerted their headquarters to similar patterns of events that suggested a future terrorist attack using passenger jets, and absolutely nothing happened.
In summer 2001, Agent Kenneth Williams, stationed in the FBI’s Phoenix Field Office, noticed a highly suspicious pattern. Williams had found several Middle Easterners were enrolled for flying instruction at Embry-Riddle Aeronautical University in Arizona; at least one of the students was known to associate with a person described as a veteran jihadist.
On July 10, Williams emailed his findings to FBI headquarters and to its New York City office. The synopsis read: “Usama bin Laden and Al-Muhjiroun [another Islamist radical] supporters attending civil aviation universities/colleges in Arizona.” None of the dozen FBI supervisors and headquarters staffers who saw the memo took action.42
In the wake of the 9/11 attacks two months later, the Justice Department’s Office of the Inspector General sought the reason why Agent Williams’s email had been ignored. The report was lengthy,43 but essentially found that most of the addressees (or their subordinates who screened it) had considered it an “FYI” rather than a request for action.
A month after the Phoenix email, and four weeks before 9/11, the government had another chance. FBI agents in Minneapolis noticed Zacarias Moussaoui, a French national who had entered the United States six months earlier, had developed an interest in learning how to fly Boeing 747s. As the 9/11 Commission would later note, “He said he did not intend to become a commercial pilot but wanted the training as an ‘ego boosting thing.’ Moussaoui stood out because, with little knowledge of flying, he wanted to learn how to ‘take off and land’ a Boeing 747.”44
An FBI agent found that Moussaoui had $32,000 in a bank account. When questioned, he had no explanation for that asset, and he “became extremely agitated” when asked about his religious views. The agent concluded that he was an Islamist extremist and that his flight training had something to do with his plans. A bit of investigation showed that he had overstayed his visa and was thus liable to arrest at any point. The FBI agent considered that an ounce of prevention was worth a pound of cure and had Immigration and Naturalization Service (INS) arrest him. It was a wise move: Moussaoui was part of the 9/11 plot and became known as “the twentieth hijacker.”
If he was indeed a terrorist, his luggage and his laptop computer probably contained information relevant to a plot or plots. But although the INS had his luggage and files, searching them required a search warrant, which required proof of probable cause—commonly defined as “strong suspicions”—that it contained evidence of a crime, past or planned. Absent probable cause and the warrant, searching Moussaoui’s luggage and laptop would violate his rights.
But to move from the theoretical to the real: to search Moussaoui’s computer without probable cause or a warrant would mean that any evidence found could not be admitted in a court of law, against Moussaoui. If an allegedly illegal search and seizure occurs, only the person searched can object; it is their rights that were violated. If anyone but Moussaoui was implicated by the contents of his computer, these others would have no legal “standing” to complain; their constitutional rights had not been infringed.
The FBI declined to think outside the legal box but continued to investigate. A few days later the case agent, Coleen Rowley, received word from French intelligence that Moussaoui had recruited men for a unit of Islamist rebels fighting against the Russians in Chechnya, a group that had blown up a hospital.45 Agent Rowley thought the Bureau clearly had probable cause at that point.
What followed was typical of what happens when someone tries to move quickly and decisively in a complex bureaucracy. Rule 41 of the Federal Rules of Criminal Procedure says a search warrant may be issued at “the request of a federal law enforcement officer or an attorney for the government.” Although agents thus have the legal power to apply directly to the court for search warrants, FBI protocol required an agent to ask a prosecutor to make the application. In a case like Moussaoui’s, the chain of command was quite complex. The FBI agents would have to ask FBI headquarters to seek the approval of the U.S. Department of Justice’s Office of Intelligence Policy Review (OIPR) before the agents were permitted to ask the local U.S. Attorney’s Office to apply for a search warrant.46 The agents made the request, but the OIPR denied they had probable cause and refused to allow them to request the U.S. Attorney to apply to the court. Indeed, the OIPR refused permission even after the 9/11 attacks, claiming Moussaoui’s quest for flight training and the attacks were unrelated.47
The internal opposition to further investigating Moussaoui suggests that its basis was less a matter of reasoned objections than of sheer bureaucratic pigheadedness. Agent Rowley later wrote the Acting Director of the FBI:
[A]t one point, the Supervisory Special Agent at FBIHQ posited that the French information could be worthless because it only identified Zacarias Moussaoui by name and he, the SSA, didn’t know how many people by that name existed in France. A Minneapolis
agent attempted to surmount that problem by quickly phoning the FBI’s legal Attache (Legat) in Paris, France, so that a check could be made of the French telephone directories. Although the Legat in France did not have access to all of the French telephone directories, he was able to quickly ascertain that there was only one listed in the Paris directory. It is not known if this sufficiently answered the question, for the SSA continued to find new reasons to stall.48
The route through headquarters and the local U.S. Attorney appeared to be blocked solidly. Rowley knew of one alternative: to apply for a search warrant in the Foreign Intelligence Surveillance Court, which has broad powers to authorize searches, provided the target individual was sufficiently linked to a foreign power (i.e., was a spy or saboteur, or something similar). Obtaining one of these warrants involved a complex process: the application must first be made to the National Security Law Unit in FBI’s General Counsel’s Office. If approved, it would send the request up to the USDOJ which might apply to the special court.
But in the National Security Law Unit, the request got tied up in a different dispute: Moussaoui had been in a unit of Islamic rebels in Chechnya, but was such a body of rebels a foreign power? This question was key to bringing the case within the jurisdiction of the Foreign Intelligence Surveillance Court.
The debate continued even as the hijackers’ airplanes hit the Twin Towers and the Pentagon.
THE CONSEQUENCES
So far as is publicly known, no one responsible for the failures that led up to 9/11 suffered any measurable consequence. Those of very high rank were too big to fail. The middle rank had merely followed agency custom in the “we’ve always done it this way” mentality.
I'm from the Government and I'm Here to Kill You Page 15
