Politics & Policy

Lawyers At War?

Where we were is where Kerry would take us.

If wars are too important to be trusted to the generals, they are far too important to be trusted to a bunch of lawyers. In his new book, Rumsfeld’s War, Washington Times Pentagon correspondent Rowan Scarborough reveals the Pentagon paralysis that Defense Secretary Rumsfeld inherited from the Clinton administration. Part of Scarborough’s proof is a previously classified briefing, entitled “Preempting Terrorists Was not an Option.” In it, Professor Richard Schultz of the Fletcher School details the legalistic stagnancy of the Clinton Pentagon.

Big Dog’s staff asked Schultz to find out why the Clinton administration didn’t use special-operations forces against al Qaeda in the 1990s. It’s a reasonable question: Clinton was not hesitant to fire dozens of cruise missiles at terrorist targets, in feckless attempts to get bin Laden and other al Qaeda leaders. If we were willing to use cruise missiles to kill, why not special-operations forces, which have much more flexibility and thus are more likely to succeed? The answer is that the Clinton-Cohen-Berger national-security troika were parsing sentences and splitting legal hairs.

Schultz begins with two points. First, Clinton’s rhetoric said again and again that America intended to strike offensively at those responsible for terrorist attacks. Second, the rhetoric was not connected to policy. Schultz confirmed what Clinton’s national security adviser, Sandy Berger, said repeatedly: The Clinton administration believed the threat of terrorism was nothing more than the threat of crime, and chose to deal with it through law enforcement and the courts. Berger explained Clinton’ s rejection of Sudan’s offers in 1996-1997 to give us Osama bin Laden by saying, “The FBI did not believe we had enough evidence to indict bin Laden at that time, and therefore opposed bringing him to the United States.” As Schultz found, the Clinton Pentagon took the view that it could do only what the law said it should do, not what the law said it could do.

The Clinton troika took at face value the lawyers’ assertions that the defense department didn’t have the authority to undertake unconventional-warfare counterterrorist missions. But, as Schultz found, that is simply incorrect: The president can assign those missions, ranging from clandestine preemption of terrorists to supporting resistance movements in nations that harbor them.

The legal hair-splitting fit perfectly with the ineffectual leadership of Clinton’s national-security team, which lacked the confidence in its own ideas required to oppose the generals who didn’t want to fight terrorists. Scarborough’s book demonstrates the difference in the Bush approach. After 9/11, Rumsfeld had to tackle the war against terrorism with Clinton’s leftover Pentagon. To do that, he had to overcome both the conflicting legal advice he was getting and the Pentagon’s bureaucratic inertia. By late September 2001, Rumsfeld had to make a choice between sending special-forces units into Afghanistan to start tackling the Taliban, or wait until all the lawyers resolved their disagreements. He decided to press on regardless:

CIA operations…required a presidential finding and notification to Congress. Should melding special forces with CIA paramilitaries in Afghanistan be subjected to this time consuming procedure? Pentagon lawyers were unsure. The Pentagon began signing new deployment orders, switching Green Berets and SEALs from Special Operations Command to the CIA as covert warriors…When the decision had to be made about deploying them, Rumsfeld finally settled the debate by turning to his aides and saying, “Just send them in.”

As Scarborough recounts, the special forces displayed all the skill and resourcefulness we have come to expect. Instead of diddling around with detailed reports, men like Green Beret captain Jason Amerine got down to business: “Amerine, with an M-4 carbine strapped to his back and a secure radio in his hand, busied himself with fighting the enemy and calling in air strikes.”

We know that Rumsfeld’s approach to Afghanistan worked, as did the war plan to topple Saddam’s regime. Both used special operations to the best advantage. But what if Rumsfeld’s method of operation doesn’t survive? In a Kerry administration, it clearly would not–Kerry’s campaign speeches resound the dangerous echoes of Clinton’s paralysis.

Last year, in a speech to the Council on Foreign Relations, Kerry said that we should regard the U.N. as a “full partner” in the war on terrorism. Kerry–like Clinton–is a dedicated multilateralist, and an adherent to the doctrine of U.N. primacy over diplomacy and crises. What he ignores is the U.N.’s complete inability to act against terrorism. Because many terrorist nations–and their mentor nations–are members of the U.N., it can’t even agree, as an organization, on a definition of terrorism, much less on how to fight it. The definition advanced by the Palestinians and some Arab nations excludes attacks on military targets; under that formulation, the 9/11 attack on the Pentagon wouldn’t count as an act of terrorism.

Kerry is choosing a “partner” in this war that regards terrorism–like Clinton did–as a matter to be handled by the police, not the military. The only report of its “policy working group” on terrorism (published in 2002) said that “counter-terrorism activities are carried out through bilateral and multilateral cooperation among national agencies devoted to law enforcement, intelligence, and security.” The U.N. envisions nothing beyond that, and Kerry is foolish to think it ever will. Perhaps he does not.

If Kerry wants the U.N. to be our partner in this war, America will have to pay the price of gaining its cooperation and consent before America acts. Though Kerry says he wouldn’t require the U.N.’s permission to move forward, his claimed “partnership” amounts to nothing less. Partners take part in making decisions, and cannot be ignored; Kerry is just a Clintonesque sheep in wolf’s clothing. We’d be much better off with a genuine Big Dog continuing to guard the door.

NRO Contributor Jed Babbin was a deputy undersecretary of defense in the first Bush administration.

Members of the National Review editorial and operational teams are included under the umbrella “NR Staff.”

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