August 24, 2004, 8:39 a.m.
Intelligence as Usual
The flawed 9/11 Commission report.

By David B. Rivkin Jr. & Lee A. Casey

I. Introduction

Since its release on July 22, 2004, the 9/11 Commission Report has remained in the news and become enmeshed in presidential politics. The report, which features a well-written historical narrative of the events leading up to the September 11, 2001, attacks, including a good description of the danger posed by Islamist terrorism, and a set of recommendations for the future, has been praised by the mainstream media and, not surprisingly, has become a national bestseller. Various congressional committees are holding hearings, and several of the report's "authors" are actively lobbying for the immediate adoption of the commission's entire slate of recommendations — a demand that presidential candidate John Kerry and a number of senior Democrats promptly endorsed, even urging that a special congressional session be held for this purpose.

For his part, President Bush has been more cautious, although the administration has embraced certain of the commission's ideas, including the creation of a new national intelligence director — albeit with more limited authority than the commission suggested. It is, indeed, possible that some intelligence-related legislation may be enacted before the November presidential elections. Unfortunately, this overwhelmingly positive reaction to the commission's report has obscured that document's very real inadequacies. In fact, the commission, despite being universally perceived as bold, ducked most of the difficult or controversial questions raised by its own historical narrative, choosing instead to focus on an institutional restructuring of the national intelligence apparatus. At best, these reforms would be incrementally useful. At worst, since rearranging bureaucratic structures inevitably disrupts the intelligence community's ongoing work (and may well involve significant opportunity costs), the proposed reforms would be counterproductive.

Even more fundamentally, the problem with the report is that it reinforces the oft-expressed, yet flawed and quite erroneous view that a better-organized and well-run U.S. intelligence bureaucracy might be capable of preventing future September 11-style attacks. Not surprisingly, given this euphoric assumption, the real policy issues are not well-addressed either in the body of the report or in the recommendations section: among them, when and how to use covert operations; how to revitalize America's capability for successful clandestine actions; what constitutes the proper balance between individual privacy and public security; the content of the legal rules governing the capture, detention, and interrogation of enemy combatants and the preemptive use of armed force.

II. The Commission's Scorecard

The fact that the chattering class has praised the report for its "even-handedness," and hailed the commission's ability to generate a unanimous member endorsement for its recommendations, itself underscores the extent to which the commission eschewed the hard issues. In many respects, this bureaucratic caution has undermined the only real benefit of having an independent commission analyze contemporary events. It is well-known that the costs of such commissions are high. Invariably, their work places demands and imposes burdens on executive-branch agencies and departments and a great deal of classified and sensitive information gets publicly exposed in the process. The main unique benefit offered by an independent commission is its ability to take on controversial matters (such as Social Security reform or the closing of military bases) that elected officials avoid, formulating solutions that would not have emerged from the normal operations of either the executive or legislative branches of government.¹

Of course, virtually all of the key issues involved in devising an appropriate U.S. strategy for meeting the challenge posed by al Qaeda, and other pan-national terrorist groups and the rogue states that support them, are deeply enmeshed in pre-existing ideological and political disputes. Given the commission's make-up, it is virtually unthinkable that the commission could have achieved unanimous consensus on most of these issues; seeking to produce a unanimous set of recommendations, almost by definition, ensured that its work product would reflect the lowest common policy denominator, focusing on bureaucratic and institutional reforms. Hence, the problem with the 9/11 Commission's report is not so much with what it says, but what it does not cover.

In particular, the report fails to tackle, in any meaningful way, either the legal or foreign- and defense-policy issues leading up to, and presented by, the September 11 attacks. The omission of a serious discussion of the legal quandaries is both startling and inexcusable — one cannot undertake a credible analysis of why the September 11 attacks were not stopped, without analyzing the legal framework — essentially the one of law enforcement — applied over the previous 20 years, by both Republican and Democrat administrations, for dealing with various terrorist threats and challenges.

As far as foreign and defense policy is concerned, the commission could probably have chosen not to deal with this set of issues at all, limiting itself instead to the analysis of intelligence matters only — essentially, answering the question of why didn't the United States "see it coming." This would have produced a somewhat crabbed discussion to be sure, but it would have been a defensible, albeit very narrow, approach. However, what is far less excusable is that the commission, having itself chosen to delve into certain specific foreign policy matters, e.g., its discussion of U.S.-Pakistani relations and the related policy recommendations for how to handle these ties in the future, conspicuously failed to address other, arguably far more important, foreign and defense policy matters.

III. The Legal Myopia

It is a truism that no policy issue ever gets resolved in the United States without considering its legal dimensions. This is particularly true in the national-security area. Such matters as the provision of military aid, foreign and domestic surveillance and intelligence-gathering, initiation, and prosecution of covert operations, relations with foreign intelligence services, training of foreign military and police forces, resort to deadly force, rules of engagement when using such force (with particular emphasis on the extent of the permissible collateral damage), and interrogation of captured enemy personnel, are always analyzed within the context of a particular legal framework.

In this regard, it is well-known that, before September 11, 2001, the U.S. government's overarching legal framework for dealing with foreign terrorists remained one of peacetime law enforcement, rather than the one of war-time combat — even though, by the late 1990s, al Qaeda had already initiated military-style attacks against the United States. Moreover, during this period (and before) exceptional care had been taken to evolve and apply very stringent legal requirements, governing the collection and dissemination of intelligence, extradition and rendition of terrorist personnel and all uses of deadly force, whether covert or overt ones, with little or no regard for their efficiency-hampering consequences.²

A. James Bond Lite

While the commission did not actually endorse this pre-9/11 approach, its criticism of past problems was highly restrained, providing little basis for vigorous reform in the future. For example, one of the key U.S. intelligence problems has been the apparent timidity of the CIA's Clandestine Service, which has been unable either to penetrate the terrorist groups and rogue regimes that support them, or seize or kill key terrorist leaders. Some of these problems are, of course, cultural and institutional in nature.

For example, despite its dashing origins in the World War and some impressive derring-do during the early Cold War decades, over the past 30 years, CIA operatives appear to have functioned with considerable bureaucratic caution (even timidity), relying, while stationed overseas, almost exclusively on official diplomatic cover. Meanwhile, even during the Cold War, despite the fact that the United States had only two major strategic enemies — China and the Soviet Union — CIA's clandestine service failed to place operatives within the high Soviet government echelons. Indeed, according to the American Enterprise Institute's Reuel Marc Gerecht, quoting an unnamed head of CIA's Soviet division, "all of our valuable Soviet agents, never many in number, were volunteers. That is, [CIA] case officers had not recruited them — they'd come forward to offer their services to the United States."³ The scorecard vis-à-vis the People's Republic of China was not much better.

At the same time, the various bureaucratic promotion schemes used by the CIA also rewarded quantity, rather than quality, in the agent recruitment and management process. Moreover, for years, the clandestine service was starved of funds and personnel, and had to function in a semi-hostile political environment.⁴ These deficiencies undoubtedly contributed to the CIA's apparent inability to penetrate al Qaeda and other terrorist groups, even though all of them have been seeking recruits in the West and their tradecraft and operational security routines were clearly not equal to those of the Soviet Union or China.⁵

Nevertheless, a great many of the problems besetting the clandestine service were driven by the evolving and rather harsh legal requirements to which it was subjected. Beginning in the 1970s, Congress enacted an elaborate legal framework guiding the initiation and prosecution of covert operations, which featured the notification of the congressional intelligence committees in the House and the Senate and much subsequent information-sharing.⁶ Although the actual intelligence oversight requirements were relatively modest, for years Congress considered far more ambitious proposals, keeping both the intelligence managers and their political masters in the Executive Branch in a perpetual state of uncertainty.⁷ During the 1980s, a number of U.S. intelligence operatives were disciplined, and some were even indicted, for violating often ambiguous and shifting legal requirements.

Additional requirements were added in the 1990s, including the effort to ban, or at least to complicate, efforts by clandestine-service personnel to recruit as agents human rights violators and individuals with criminal background. Given the fact that terrorist groups are, by definition, composed of criminals and human rights violators, this holier than thou approach looks thoroughly ridiculous. Throughout this whole period, a semi-adversarial relationship between the congressional overseers and the intelligence community has led to frequent leaks and counter-leaks, with much sensitive information being exposed in the process.⁸

Specific losses of valuable intelligence aside, many foreign intelligence services, fearful that the information they provide to Washington would be exposed, curtailed their cooperation. Indeed, the legal framework for covert operations was viewed by many executive-branch officials as being so onerous, that its existence has, reportedly, contributed to the unwillingness of the military's special force units to become involved in counter-terrorism activities.⁹ All of this rich and rather sad history merited only two pages of fairly delicately worded prose in the commission's report.

The problems created in the 1970s and 80s continued, and even intensified, during the Clinton years. Both the commission's report and numerous media accounts tell us that one of the key legal obstacles to taking action against Osama bin Laden and other senior al Qaeda officials was an overly broad interpretation of the executive order against assassinations.¹⁰ On this subject, the report provides a fairly detailed account of the various bureaucratic battles, remarking at one point that, in the opinion of at least some senior CIA managers, any operation in which people might get killed "had at least a slight flavor of a plan for assassination", (page 113), and should not, therefore, be undertaken without an airtight legal blessing by the White House.

Because of this concern, for years, all operations against bin Laden, whether undertaken by the U.S. personnel or by various Afghan tribals, had to be structured as "snatch and grab" actions. This, in turn, led to enormous logistical and operational problems, causing virtually all such plans to become unwieldy monstrosities and, eventually, abandoned. Interestingly, not only was the CIA "spooked" about the whole assassination business — a perhaps understandable reaction given its decades-worth of mauling by the various congressional inquisitors and special commissions — but senior Clinton-administration policy and legal officials were also seemingly obsessed with this subject.

In this regard, the report describes how Attorney General Janet Reno opposed the Clinton administration's efforts to shift over time toward a more muscular approach for dealing with Bin Laden, which was reflected in a December 1998 presidential memorandum and predicated upon a perfectly sound legal view that, anything else aside, "killing a person who posed an imminent threat to the United States would be an act of self-defense, not an assassination" (page 132). Curiously and rather unusually for the government's chief legal officer, Reno's objection was fueled solely by her policy distaste for the proposal, and her concern about a possible retaliation against U.S. officials. According to the report, "[s]he did not pose any legal objection."¹¹

What is particularly ironic, given the recent vitriolic criticisms directed at the Bush administration's legal memoranda, circa 2001 — 2003, addressing several key legal issues arising in the context of the war against al Qaeda and Taliban, is that the Clinton administration has not bothered to commission a timely and definitive legal analysis of the assassination ban and related issues, that could have ended the internal debates. Apparently, even to ask in a forthright manner, these types of questions were considered to be too controversial. This is an inexcusable example of rank political and bureaucratic cowardice and should have been condemned by the commission.

Not surprisingly, given the deficiencies of the commission's analytical assessment of the past, its recommendation on how to transform the clandestine-service border on being trite, featuring such courageous prescriptions as "building its [the service's] better human intelligence capabilities; developing a stronger language program, with high standards and sufficient financial incentives; renewing emphasis on recruiting diversity among operations officers so they can blend more easily in foreign cities..." (page 415). There are no recommendations on how to revise the dysfunctional legal framework governing covert operations, even though they are indispensable to winning this war. Indeed, without penetrating al Qaeda cells and other terrorist entities, the U.S. would neither develop reliable intelligence on what these groups are planning — technical means of collection can never replace human sources — nor hope to exert the kind of pressure on the enemy, where his senior leaders spend more time avoiding being tracked and eliminated, than planning new attacks against U.S. targets.¹²

On another key legal issue that is highly relevant to our ability to prevail in the war against al Qaeda — detention and treatment of captured enemy combatants — the report also does not break any particularly useful ground. In this regard, the report, after noting that "[a]llegations that the United States abused prisoners in its custody make it harder to build the diplomatic, political and military alliances the government will need," proceeds to recommend that we seek to harmonize our "views on how to balance humanity and security" imperatives in our treatment of detainees with those of our allies. (page 379). The report also makes a specific legal policy recommendation — that in developing, together with our friends, a common approach in this area, "[n]ew principles might draw upon Article 3 of the Geneva Conventions on the law of armed conflict." (page 380).

Unfortunately, there are a number of distinct problems with this recommendation. While developing a common approach with our allies would be a good thing, invoking Article 3 as its basis reveals a fundamental misunderstanding by the commission of the fact that Geneva Convention III does not apply to conflict with pan-national non-state actors like al Qaeda. Indeed, there are enormous legal and policy problems with trying to use the Geneva Conventions, as distinct from the well-established body of customary international law, for dealing with unlawful enemy combatants like al Qaedas. It would have also been useful for the commission to acknowledge that, while all detainees are to be treated humanely, using interrogation methods capable of extracting information from them should be a high policy priority for the U.S., ¹³ and that there are compelling public policy and legal reasons for distinguishing our treatment of captured lawful combatants from the unlawful ones.

B. The Wall

Another area in which ill-conceived legal constraints were not only embraced by the Clinton administration, but applied with an excessive and not legally required zeal, had to do with the failure to share intelligence information among different entities within the executive branch. This intelligence-sharing, or to put it more precisely, non-sharing, came to be known colloquially as the "wall". Here, the report's portrayal of what has happened borders on a whitewash.

To be sure, the report's depiction of how the 1978 Foreign Intelligence Surveillance Act (FISA) functioned reasonably well throughout the 1980s and early 90s, not appreciably inhibiting intelligence sharing between the law enforcement and intelligence personnel, is basically sound. Then, in one paragraph, the report describes how things went awry in 1994. Evidently, a relatively junior DOJ official, then serving as acting head of the DOJ's Office of Intelligence Policy and Review (OIPR), began to curtail "on his own" the erstwhile smooth information flow.

The report then portrays the infamous 1995 Jamie Gorelick memo (which indicated that intelligence-sharing should be constrained even more than was legally required so as to avoid any "appearance" problem) and the subsequent Janet Reno memo, as efforts to improve the situation caused by this bureaucrat's excessive zeal, and restore some modicum of information-sharing. The report laments the fact that the new "procedures were almost immediately misunderstood and misapplied", leading to "far less information-sharing and coordination between the FBI and the Criminal Division in practice than was allowed under the department's procedures" (page 79), and acknowledges that the "information flow withered."

Unfortunately, the commission does not come anywhere close to dispensing any criticism of the senior DOJ managers, including one of its own members, Jamie Gorelick — even though it is not obvious why Gorelick or Reno could not have brought OIPR staff back "onto the reservation" by simply overruling the individual involved. Likewise, it does not exonerate senior DOJ officials to say that the procedures they had created, while perhaps intrinsically sound, were misunderstood and misapplied.¹⁴ The real problem, which the commission is loath to acknowledge is that, in the Clinton Justice Department, concerns about civil liberties, no matter how fanciful, were consistently allowed to trump national security concerns.

Not surprisingly, once again, not having described the past problems well, the commission proffered an extremely anemic recommendation for the future, suggesting, for example, that "a full and informed debate on the Patriot Act would be healthy" (page 394). Perhaps scared that it was too bold in making this recommendation, the commission then proceeded to demonstrate its civil liberties-related bona fides, by suggesting that "the burden of proof for retaining a particular government power should be on the executive, to explain (a) that the power actually materially enhances security and (b) that there is adequate supervision of the executive's use of the powers to ensure protection of civil liberties. If the power is granted, there must be adequate guidelines and oversight to properly confine its use." (page 394-395).

The problem here is not so much that this language, by itself, is a bad formulation. It is that, following the September 11 disaster, which was preceded by years of subordinating national security concerns to highly ritualized civil liberties-related criticisms (an approach that caused tremendous damage to the government's ability to collect and share intelligence) — rather than attempting to strike a reasonable balance between the two sets of imperatives — the commission could not bring itself to make a bolder statement as to the need to change the broken paradigm. This is a missed opportunity and the one that is unlikely to come up again anytime soon.

IV. Confusing Strategy and Tactics

The report's conspicuous "even-handedness" in assessing the Clinton and Bush administrations' records also does not make useful contributions to our national debate. This is not, of course, to say that blatant partisanship by the commission members, with the Republicans blaming the Clinton Administration and the Democrats condemning the Bush team, would have been particularly helpful. However, irrespective of where one comes out on the ultimate policy questions, the commission's failure to distinguish crisply between the Clinton and Bush policies is, on its face, indefensible.

The reason for this conclusion is quite obvious. The Clinton team, having been in office for two terms, had eight years worth of opportunities to deal with al Qaeda and the Taliban, long before the September 11 plot matured. Unless one assumes that their policies were picture perfect — and even the Commission does not claim this — the Clinton-era approach must have featured some strategic mistakes in dealing with certain legal, foreign and defense policy matters. By contrast, the Bush team, having been in office less than eight months before the attacks happened, and having kept in place, pending further policy review, a number of al Qaeda-related strategies which it had inherited, could have been guilty only of tactical and operational blunders. Instead of trying to separate the different types of problems, the country was presented with the bizarre spectacle of a debate, during one of the commission's public hearings, whether Bush or Clinton cared more about the al Qaeda threat, mixing up the quite distinct empathy and effectiveness issues.

The commission's inability, or unwillingness, to separate the tactical from the strategic, while perhaps welcomed as a political reprieve by both Republicans and Democrats, has adversely impacted the ability of the American public to grasp what changes in our policies are most essential to minimize the prospects of a September 11-type attack taking place again. It also has ensured that the policies of the Clinton administration will not be seriously assessed by at least a semi-official body for years, and may well have to await the historian's pen for adequate scrutiny.

V. Failure of Imagination

Another one of the commission's more damaging blunders is its obvious failure of imagination. When it comes to broad strategic issues of foreign and defense policy that critically impact America's ability to prosecute the war against al Qaeda and other terrorist organizations, the report has virtually nothing useful to say. This is particularly ironic, since the report cites the failure of imagination by the national security establishment as one of the key reasons why the September 11 attacks succeeded. The commission's own lack of imagination manifests itself in several distinct ways.

A. The Flaws of Homeland Defense

First, although the report acknowledges that adoption of the policy recommendations of Bush critics, notably Richard Clarke, would not have necessarily prevented the September 11 attacks, it notably fails to tackle a far more fundamental policy issue. Given the opportunistic nature of the al Qaeda attacks, the fact that they did not require extensive logistical support and could be launched with resources that could be commandeered in the United States, any U.S. response focused on "the point of contact" will not stop an attack.¹⁵ For such efforts to succeed, both intelligence and law enforcement agencies would have to perform infallibly, or nearly so.

They would also have to enjoy an incredible run of luck. This is especially the case if the task is defined as not just foiling any one particular terrorist attack, but doing so consistently and reliably all the time. This challenge is compounded by the normal strategic action-reaction phenomenon, under which the defender's ability to block one particular type of threat merely causes the enemy to alter the threat scenario. For example, under this traditional logic of strategy, a U.S. policy that would have ensured a perfect integration of all intelligence and law enforcement databases, thereby leading to an apprehension of all individuals with "red flags" in their past, could have been countered by an al Qaeda decision to use people with "clean" records.

Likewise, while better airport-detection equipment might well make it impossible to smuggle any kind of weapons on board aircrafts, no amount of equipment would prevent, for example, a specially trained al Qaeda commando team, comprised of people who are experts in unarmed combat, from overpowering any number of ordinary passengers and flight crew. As yet another example, even a very sturdy cockpit door can provide good security only if it is never opened in flight; otherwise, a specially trained personnel can rush the cockpit with the speed and dispatch that is unlikely to be countered by an average aircraft crew.

The broader implication of these arguments is that, as military history teaches us, all passive and reactive defenses are inherently unreliable and do not guarantee victory — at least if that is defined as avoiding significant casualties among American civilians. While enhancement of our defensive capabilities is an appropriate step, the only assured path to success is to seize the strategic initiative and take the battle to the enemy, as, for example, Israel has done in battling the latest round of Intifada, or the Bush administration has sought to do following the September 11 attacks. Unless we recognize this strategic reality — that there are no easy short cuts in dealing with al Qaeda-style threats — we will not be able to develop public support for needed changes in our defense and foreign policies.

B. Preemption Revisited

Unfortunately, although the report does a generally good job in discussing all of the lost and missed opportunities to engage and destroy al Qaeda before the September 11 attacks, it does not take the next logical step and endorse a preemptive strategy that could actually have taken advantage of one or more of these lost opportunities. This omission is particularly regrettable, and is perhaps the commission's worst failure. This is the case for two distinct reasons. First, given the American political, legal and bureaucratic culture, resistance to the use of armed force runs very strong throughout all branches of government. Had the commission endorsed the validity and even indispensability of preemption as a tool of American strategy in the 21st century — an approach it could have easily taken while punting on the merits of the Iraq war — it would have at least tried to mitigate this serious problem. Second, the Democrat party has chosen to oppose not just the Iraq war, but strategic preemption as such in an absolute and even ideological manner, further complicating any rational discourse on this subject. Here again, a judicious repost by the commission, or even a fraction of its members, would have been extremely useful.

However, the report's failure is not only the one of omission. By devoting much space to the discussion of the connection between al Qaeda and Saddam Hussein's regime in Iraq, and focusing particularly on whether or not there was an operational relationship between the two, the report does a disservice to this whole issue. The notion that this war can be won only by battling exclusively the enemy that has launched the last attack against us or, at most, should include battles against those third parties that have directly aided in this last attack, betrays a strategic blind spot of stunning proportions.¹⁶ Although the commission did not have to register a definitive view as to the wisdom of the Iraq venture, it could, and should, have opined that the nature of the relationship between Saddam Hussein and al Qaeda was only one, and not even the most significant, aspect of the relevant threat assessment.

C. The Search for Perfect Intelligence

Most of the commission's work and recommendations deal with the question of how to restructure the U.S. intelligence community so as to enhance the quality of its analytical estimates and provide U.S. decision makers with reliable and timely intelligence. Even leaving the merits of the commission's specific institutional recommendations aside,¹⁷ the report clearly suffers from a hubristic and ahistorical assumption that perfect intelligence is possible, if only the right bureaucratic set up for the collection and dissemination of intelligence is created.

History, however, conclusively demonstrates that the feasibility of perfect intelligence is a myth. Henry Kissinger, for example, in a recent and highly persuasive critique of the commission's approach, describes four (comparatively) recent intelligence "failures" — the 1973 Yom Kippur war; India's 1998 nuclear tests; the September 11 attacks; and the Iraq WMD assessments. In his view, the problems in each instance were not caused by our failure to develop the facts — "the facts were at hand. The difficulties arose in interpreting what they meant."¹⁸ These analytical difficulties cannot be cured by reshuffling bureaucratic boxes or by flogging the analysts involved. They are inherent, indeed inevitable, in predicting future human behavior based upon ambiguous evidence of what has transpired thus far.

Arguably, even the possession of a perfectly valid, timely and 100-percent reliable intelligence, obtained from an inside source high within the echelons of our enemy, does not guarantee a correct prediction of the future; enemies are just as capable of changing their minds about policies as our own bureaucrats and politicians. Thus, while some analytical assessments are better than others, perfection in this area is unattainable. Indeed, there is an inherent tension between analysts under-connecting the dots, with September 11 being the poster child of this phenomenon, and over-connecting the dots, with most of the world intelligence agencies' assessments of Iraq's WMD stockpiles being a good example. To ascribe these problems to "group-think" tendencies oversimplifies the problem.

To summarize, despite the commission's self-proclaimed belief that it has come up with a set of bold and creative reforms, in reality, on most of the key legal and policy issues, the report implicitly or explicitly advocates the continuation of business as usual. It fails to advocate, or even to consider seriously, such key matters as the merits of strategic preemption when dealing with ambiguous, but lethal threats, the need to change fundamentally the nature of the legal regime governing all aspects of covert operations and military actions, as well as the legal rules governing collection of intelligence. In the end of the day, regrettably, the commission, perhaps because of its quest for bipartisanship and unanimity, has failed to make a meaningful contribution to the ongoing national debate on how to avert future September 11-style attacks.

— David B. Rivkin Jr. and Lee A. Casey are partners in the Washington, D.C., office of Baker & Hostetler LLP. They served in the Justice Department during the Reagan and Bush 41 administrations.

¹ Independent commissions can also, of course, help to reassure the American citizens in the aftermath of momentous public events, be they the attack on Pearl Harbor, Kennedy's assassination, or the September 11 strikes, when the public may be inclined to distrust the ability of the normal governmental bodies to investigate what happened and provide honest answers. However, this public reassurance function, while valuable, by itself is probably not sufficient to offset the high costs associated with independent commissions.
² Even when it came to the application of criminal law to al Qaeda suspects, the review of the relevant record creates a distinct impression that, for years, the U.S. government was unnecessarily timid in its antiterrorist law-enforcement strategy. Although the Report does not delve much into the various problems, e.g., concern about an ability to use in a criminal trial information gathered through clandestine means, that arose in the context of the Clinton administration's efforts to extradite and prosecute Osama bin Laden, there has been sufficient media coverage to suggest that the Department of Justice (DOJ) prosecutors were proceeding quite cautiously. Ironically, state attorneys general, such as New York's Elliot Spitzer, have boldly embraced far more creative theories of liability when prosecuting tobacco companies, alleged environmental polluters or financial institution managers suspected of excessive greed, than DOJ did with respect to bin Laden and his associates.
³ Reuel Marc Gerecht, "The Sorry State of the CIA," The Weekly Standard, July 19, 2004, p. 24.
⁴ During the 1970s and 1980s in particular, many politicians and pundits have argued that both covert operations and even intelligence collections using human sources were a sordid business, incompatible with American values. (As far as the critics were concerned, America's intelligence services should have limited themselves to intelligence collections, using various gadgets, dubbed the national technical means.) Such musings have served to further traumatize Clandestine Service's senior managers, who knew they were operating without much of a political safety net and enhanced their risk-avoidance tendencies.
⁵ Arguably, given the dearth of al Qaeda defectors, who, unlike the erstwhile KGB officers or communist party apparatchiks, have not become disillusioned with their faith, the implications of CIA's failure to infiltrate al Qaeda cells are particularly pernicious.
⁶ For a discussion of some of these problems, see, David B. Rivkin, Jr., "Intelligence Oversight and Congress: Practical and Constitutional Imperatives," Houston Journal of International Law, November 1988. While the law did not mandate prior congressional notification of covert operations, the executive's failure to do so has provoked furious rows with Congress, many of which took place during the Reagan administration.
⁷ One of the consequences of this congressional pressure was the promulgation by the Ford Administration of Executive Order 11,905, banning "assassinations." This executive order was signed by President Ford on February 18, 1976, and was reissued as Executive Order 12,333, by President Reagan on December 4, 1981. It has been reaffirmed by all of Reagan's successors.
⁸ Given all of the problems associated with the existing intelligence-oversight system, the merits of the commission's call not just to streamline congressional oversight — by creating a Joint House Senate Intelligence Committee — but to strengthen it, presumably by requiring more information-sharing with a special oversight Subcommittee of the proposed Joint Committee, are not immediately obvious.
⁹ According to media accounts, prior to September 11, 2001, various military units, including the Delta force, SEALs and airborne rangers, have never been deployed to engage al Qaeda or other terrorist forces.
¹⁰ While the order does not define the term assassination, it is generally considered to be a term of art in international law and has been construed to refer to an unlawful killing of an internationally protected person, e.g., a diplomat, or a government official. The killing of private individuals, even outside of the framework of an armed conflict, while illegal under the municipal laws of most countries, is not necessarily a legally cognizable offense under international law. (Depending on where the killing takes place and how it is accomplished, it may violate the generic proscription in the U.N. Charter — Article 2(4) — against interference with the territorial integrity or political independence of another state. Some scholars also argue that, when the act of murder is undertaken for political purposes, even the killing of a private person may amount to an assassination. This view is expressed, for example, in the 1989 DOD memorandum of law, drafted by Colonel Hays Parks.) In any case, whenever a terrorist group has engaged in attacks against the United States of sufficient intensity to amount to a state of war, the resulting situation is governed by the laws and customs of war, which emphatically allow preemptive strikes on legitimate targets, including enemy personnel.
¹¹ The report depicts further Hamlet-like indecision and flip-flopping by the Clinton administration on this issue — apparently, having approved the language that allowed the so-called Afghan tribals, cooperating with the CIA, to kill bin Laden, when it came in 1999 to giving guidance on the same issue to the Northern Alliance, "President Clinton crossed out key language he had approved in December [1998] and inserted more ambiguous language." (page 133). Further disputes on this issue continued throughout 1999 and even 2000, with the "kindler, gentler" anti-assassination language reemerging as the dominant legal formulation. While the commission's report gives a fairly decent account of what happened, what is entirely missing is any sense of indignation or even criticism.
¹² This ability to take the battle to the enemy has been the key ingredient of Israel's success in dramatically reducing the number of completed suicide bombings.
¹³ The commission's failure to mention this issue is particularly ironic, since its work has greatly benefited from the intelligence provided by captured al Qaeda and Taliban personnel. More generally, the commission's decision to treat a complex set of legal and policy issues, associated with the detention, treatment and interrogation of unlawful enemy combatants, in less than one whole page of text is hard to justify. Meanwhile, the commission's nomenclature — in particular, its reference to "captured terrorists" — is unfortunate from a policy perspective and misleading as a matter of law. In this regard, individuals belonging to terrorist groups that have neither launched armed attacks against the United States, nor have allied themselves with those who did, remain subject to the normal criminal-justice rules. Thus, for example, a captured member of the IRA or a Tamil Tiger would be treated as any other criminal suspect; there is no need to develop any new rules. On the other hand, captured enemy combatants, including unlawful ones, are subject to laws and customs of war. While the term "enemy combatant" has itself become a fighting word for many pundits and politicians, the commission's failure to use the proper nomenclature is disappointing.
¹⁴ It is also not obvious why, even assuming that Gorelick and Reno were bringing back some intelligence-sharing, blocked by the OIPR in 1994, they did not restore the successful paradigm circa 1980s in its entirety.
¹⁵ Unfortunately, this obsession with investing ever more in homeland security, with a particular emphasis on providing additional resources to the so-called "first responders" — police and fire departments — is endemic among the Democrat critics of President Bush's defense and foreign policy. For an illustrative discussion of this argument, see, Stephen E. Flynn, "The Neglected Home Front," Foreign Affairs, September/October 2004, pages 20-33. Yet, given the nature of our society and economy, coupled with the enormous emphasis on individual privacy that has been espoused by the very same critics, the notion that we can dramatically boost the ability of the U.S. to deter and absorb terrorist attacks by "hardening" our infrastructure is a dangerous illusion.
¹⁶ The recent controversy about a draft DOD memo, described in one of the Report's footnotes, written by the Undersecretary of Defense for Policy, Douglas J. Feith, illustrates this point well. For a criticism of Feith's memorandum, see, David Ignatius' review of the Report in The Washington Post Book World, August 1, 2004, p.5. For a rebuttal by the author of this memo, see, Douglas J. Feith, "A War Plan That Cast a Wide Net," the Washington Post, August 7, 2004, p. A21. The Feith memo, written within days of September 11, apparently suggested that we might want to consider hitting our enemies outside of Afghanistan, even though the al Qaeda September 11 attacks were planned by Afghanistan-based leaders, in order to bring "surprise to the terrorists." While reasonable people can disagree about the specific merits of Feith's proposal, ridiculing his notion that our response to a particular attack need not be symmetrical or that we might want to attack an enemy in a location that is different from which the last attack came, reveals strategic ignorance of the worst kind. Predictability and linear logic have never worked in warfare, with the carnage of World War I being a veritable testament to this proposition. The problem with many of the Feith and administration's critics is that they, apparently, still do not understand that we are engaged in a real war and not just in a protracted law-enforcement exercise.
¹⁷ A number of intelligence professionals have made compelling arguments that establishing yet another layer of bureaucracy — in the form of the national intelligence director — is not necessarily a good idea. For example, unless such a director is supported by a large staff, it is unlikely that he would be able to make any real contribution either to the analytical quality of intelligence products or to the budgeting and planning functions of the intelligence community. On the other hand, creating an expert staff to support such a director would only make the current system for producing intelligence estimates even more unwieldy, slow and prone to the generation of bland, lowest-common denominator reports.
¹⁸ Henry Kissinger, "Better Intelligence Reform: Lessons From Four Major Failures," the Washington Post, August, 16, 2004, p. A17.

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