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Legal Disputes Over Hunt Paralyzed Clinton's Aides

By Steve Coll
Washington Post Staff Writer
Sunday, February 22, 2004; Page A17

Between 1998 and 2000, the CIA and President Bill Clinton's national security team were caught up in paralyzing policy disputes as they secretly debated the legal permissions for covert operations against Osama bin Laden in Afghanistan.

The debates left both White House counterterrorism analysts and CIA career operators frustrated and at times confused about what kinds of operations could be carried out, according to interviews with more than a dozen officials and lawyers who were directly involved.

Samuel R. "Sandy" Berger, President Bill Clinton's national security adviser, struggled to forge a consensus within the White House national security team over how to handle the CIA's search for bin Laden. (1999 Photo James A. Parcell -- The Washington Post)

_____Ghost Wars_____
Steve Coll This report was adapted from "Ghost Wars: The Secret History of the CIA, Afghanistan, and Bin Laden, from the Soviet Invasion to September 10, 2001," The Penguin Press (New York: 2004), by Washington Post managing editor Steve Coll, who discussed the book online. (Read the discussion transcript).
Interview With Coll
Audio: Coll on WTOP
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There was little question that under U.S. law it was permissible to kill bin Laden and his top aides, at least after the evidence showed they were responsible for the attacks on U.S. embassies in Africa in 1998. The ban on assassinations -- contained in a 1981 executive order by President Ronald Reagan -- did not apply to military targets, the Justice Department's Office of Legal Counsel had previously ruled in classified opinions. Bin Laden's Tarnak Farm and other terrorist camps in Afghanistan were legitimate military targets under this definition, White House lawyers agreed.

Also, the assassination ban did not apply to attacks carried out in preemptive self-defense -- when it seemed likely that the target was planning to strike the United States. White House and Justice Department lawyers debated whether bin Laden qualified under this standard as well, and most of the time agreed that he did.

Clinton had demonstrated his willingness to kill bin Laden, without any pretense of seeking his arrest, when he ordered the cruise missile strikes on an eastern Afghan camp in August 1998, after the CIA obtained intelligence that bin Laden might be there for a meeting of al Qaeda leaders.

Yet the secret legal authorizations Clinton signed after this failed missile strike required the CIA to make a good faith effort to capture bin Laden for trial, not kill him outright.

Beginning in the summer of 1998, Clinton signed a series of top secret memos authorizing the CIA or its agents to use lethal force, if necessary, in an attempt to capture bin Laden and several top lieutenants and return them to the United States to face trial.

From Director George J. Tenet on down, the CIA's senior managers wanted the White House lawyers to be crystal clear about what was permissible in the field. They were conditioned by history -- the CIA assassination scandals of the 1970s, the Iran-contra affair of the 1980s -- to be cautious about legal permissions emanating from the White House. Earlier in his career, Tenet had served as staff director of the Senate Intelligence Committee and director of intelligence issues at the White House, roles steeped in the Washington culture of oversight and careful legality.

Tenet and his senior CIA colleagues demanded that the White House lay out rules of engagement for capturing bin Laden in writing, and that they be signed by Clinton. Then, with such detailed authorizations in hand, every one of the CIA officers who handed a gun or a map to an Afghan agent could be assured that he or she was operating legally.

This was the role of the Memorandum of Notification, as it was called. It was typically seven or eight pages long, written in the form of a presidential decision memo. It began with a statement about how bin Laden and his aides had attacked the United States. The memo made clear the president was aware of the risks he was assuming as he sent the CIA into action.

Some of the most sensitive language concerned the specific authorization to use deadly force. Clinton's national security aides said they wanted to encourage the CIA to carry out an effective operation against bin Laden, not to burden the agency with constraints or doubts. Yet Clinton's aides did not want authorizations that could be interpreted by Afghan agents as an unrestricted license to kill. For one thing, the Justice Department signaled that it would oppose such language if it was proposed for Clinton's signature.

The compromise wording, in a succession of bin Laden-focused memos, always expressed some ambiguity about how and when deadly force could be used in an operation designed to take bin Laden into custody. Typical language, recalled one official involved, instructed the CIA to "apprehend with lethal force as authorized."

At the CIA, officers and supervisors agonized over these abstract phrases. They worried that if an operation in Afghanistan went badly, they would be accused of having acted outside the memo's scope. Over time, recriminations grew between the CIA and the White House.

It was common in Clinton's cabinet and among his National Security Council aides to see the CIA as too cautious, paralyzed by fears of legal and political risks. At Langley, this criticism rankled. The CIA's senior managers believed officials at the White House wanted to have it both ways: They liked to blame the agency for its supposed lack of aggression, yet they sent over classified legal memos full of wiggle words.

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